Walling v. Walling, 2007 SKQB 43

JudgePopescul, J.
CourtCourt of Queen's Bench of Saskatchewan (Canada)
Case DateJanuary 25, 2007
JurisdictionSaskatchewan
Citations2007 SKQB 43;(2007), 294 Sask.R. 256 (FD)

Walling v. Walling (2007), 294 Sask.R. 256 (FD)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. MY.018

Eric Wayne Walling (petitioner) v. Aldine Felicia Walling (respondent)

(2004 DIV. No. 613; 2007 SKQB 43)

Indexed As: Walling v. Walling

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Popescul, J.

January 25, 2007.

Summary:

The husband applied for an order compelling the wife to disclose documents. The wife moved for the order under Queen's Bench Rule 99 and s. 4 of the Court Jurisdiction and Proceedings Transfer Act that the Court of Queen's Bench in Saskatchewan did not have jurisdiction or territorial competence in the proceeding. Alternatively, the wife sought an order under s. 10 of the Act that the court decline to exercise its territorial competence on the ground that the province of Alberta was the more appropriate forum in which to try the proceeding.

The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the husband's application and dismissed the wife's motion.

Conflict of Laws - Topic 2064

Family law - Property - Forum conveniens - [See Family Law - Topic 866 and second and third Family Law - Topic 3991 ].

Conflict of Laws - Topic 2222

Family law - Maintenance - Jurisdiction of court - [See Family Law - Topic 866 and second and third Family Law - Topic 3991 ].

Conflict of Laws - Topic 2223

Family law - Maintenance - Forum conveniens - [See second and third Family Law - Topic 3991 ].

Family Law - Topic 866

Husband and wife - Marital property - Distribution orders - Jurisdiction or application of statutes - Spouses entered into an antenuptial agreement prior to marriage - The agreement provided that in case of conflict the applicable law was that of Saskatchewan - The husband obtained a divorce in Saskatchewan - The issues of spousal support and property division were adjourned sine die - The husband applied for an order compelling the wife to disclose documents - The wife moved for the order under Queen's Bench Rule 99 and s. 4 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA) that the Court of Queen's Bench in Saskatchewan did not have jurisdiction or territorial competence in the proceeding - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the wife's motion - While the CJPTA applied to the division of family property under the Family Property Act and to the claim for spousal support made under the Family Maintenance Act, it did not apply to all aspects of the proceedings under the Divorce Act - The Divorce Act had provisions that dealt with territorial competence and/or jurisdiction - See paragraphs 19 to 26.

Family Law - Topic 3991

Divorce - Corollary relief - General - Jurisdiction of divorce court - [See Family Law - Topic 866 ].

Family Law - Topic 3991

Divorce - Corollary relief - General - Jurisdiction of divorce court - Spouses entered into an antenuptial agreement prior to marriage - The agreement provided that in case of conflict the applicable law was that of Saskatchewan - The husband obtained a divorce in Saskatchewan - The issues of spousal support and property division were adjourned sine die - The husband applied for an order compelling the wife to disclose documents - The wife moved for the order under Queen's Bench Rule 99 and s. 4 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA) that the Court of Queen's Bench in Saskatchewan did not have jurisdiction or territorial competence in the proceeding - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the wife's motion - The court had territorial competence in the proceedings - Firstly, the wife had submitted to the jurisdiction of the court in accordance with s. 4(b) of the CJPTA - She had been an active and participating party in the proceeding all along, until the husband's application was brought - Secondly, dealing with the spousal support claim under the Divorce Act, it would seem to be quite paradoxical for the wife to claim spousal support under the Divorce Act in her counterclaim and suggest that the court lacked jurisdiction to deal with that issue - Further, the prerequisite of one of the parties being ordinarily resident in Saskatchewan for one year, as contemplated by s. 3(1) of the Divorce Act, had been met - See paragraphs 27 to 30.

Family Law - Topic 3991

Divorce - Corollary relief - General - Jurisdiction of divorce court - Spouses entered into an antenuptial agreement prior to marriage - The agreement provided that in case of conflict the applicable law was that of Saskatchewan - The husband obtained a divorce in Saskatchewan - The issues of spousal support and property division were adjourned sine die - The husband applied for an order compelling the wife to disclose documents - The wife moved for the order under s. 10 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA) that the court decline to exercise its territorial competence on the ground that the province of Alberta was the more appropriate forum in which to try the proceeding - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the wife's motion - Firstly, there was no legal basis upon which the court could transfer the portion of the proceeding relating to the wife's request for spousal support - The court had exclusive jurisdiction and the Divorce Act did not permit a transfer of a spousal support proceeding unless it was related to custody issues as contemplated by s. 6 of the Divorce Act (which was not the case) - Secondly, it would not be appropriate to transfer that portion of the proceeding to which the CJPTA applied to Alberta - See paragraphs 31 to 33.

Cases Noticed:

Hunter v. Hunter [2006] 5 W.W.R. 141; 269 Sask.R. 223; 357 W.A.C. 223; 15 R.F.L.(6th) 283; 2005 SKCA 76, refd to. [para. 20].

Molson v. Molson (1998), 222 A.R. 130; 38 R.F.L.(4th) 385; 1998 ABQB 476, refd to. [para. 25].

Counsel:

Raymond Wiebe, for the petitioner;

Patrick H. Loran, for the respondent.

This application and this motion were heard by Popescul, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial District of Saskatoon, who delivered the following judgment on January 25, 2007.

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5 practice notes
  • Divorce: Jurisdiction; Judgments; Foreign Divorces; Grounds for Divorce; Bars
    • Canada
    • Irwin Books Canadian Family Law - Ninth edition
    • July 25, 2022
    ...293; Droit de la famille — 21910, 2021 QCCS 2081. Compare Theriault v Theriault, 2014 SKQB 373 at paras 14–16, citing Walling v Walling, 2007 SKQB 43. Qin v Dai, 2021 BCSC 943 at para Chapter 7: Divorce: Jurisdiction; Judgments; Foreign Divorces; Grounds for Divorce; Bars applicable law and......
  • Divorce: Jurisdiction; Judgments; Foreign Divorces; Grounds for Divorce; Bars
    • Canada
    • Irwin Books Archive Canadian Family Law. Eighth Edition
    • August 3, 2020
    ...v Lin, 2013 ONCA 33; Essa v Mekawi, 2014 ONSC 7409. Compare Theriault v Theriault, 2014 SKQB 373 at paras 14–16, citing Walling v Walling, 2007 SKQB 43. Alcaniz v Willoughby, 2011 ONSC 7045, citing Muscutt v Courcelles (2002), 60 OR (3d) 20 (CA), and Follwell v Holmes, [2006] OJ No 4387 (Su......
  • Krushelinski v. Wehner, 2015 SKQB 195
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • June 30, 2015
    ...determining issues of territorial competence: see, for example, Goryn v. Neisner , 2015 ONCJ 191 [ Goryn ]. [48] In Walling v. Walling , 2007 SKQB 43, 294 Sask R 256 [ Walling ], a decision of Popescul J. (now Chief Justice), he concluded that the CJPTA applied in determining the issue of t......
  • Theriault v. Theriault, 2014 SKQB 373
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • November 13, 2014
    ...209, refd to. [para. 12]. Arnold v. Arnold, [1998] 6 W.W.R. 344; 164 Sask.R. 252 (Q.B.), refd to. [para. 12]. Walling v. Walling (2007), 294 Sask.R. 256; 2007 SKQB 43 (Fam. Div.), refd to. [para. Hunter v. Hunter [2006] 5 W.W.R. 141; 269 Sask.R. 223; 357 W.A.C. 223; 2005 SKCA 76, refd to. [......
  • Request a trial to view additional results
3 cases
  • Krushelinski v. Wehner, 2015 SKQB 195
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • June 30, 2015
    ...determining issues of territorial competence: see, for example, Goryn v. Neisner , 2015 ONCJ 191 [ Goryn ]. [48] In Walling v. Walling , 2007 SKQB 43, 294 Sask R 256 [ Walling ], a decision of Popescul J. (now Chief Justice), he concluded that the CJPTA applied in determining the issue of t......
  • Theriault v. Theriault, 2014 SKQB 373
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • November 13, 2014
    ...209, refd to. [para. 12]. Arnold v. Arnold, [1998] 6 W.W.R. 344; 164 Sask.R. 252 (Q.B.), refd to. [para. 12]. Walling v. Walling (2007), 294 Sask.R. 256; 2007 SKQB 43 (Fam. Div.), refd to. [para. Hunter v. Hunter [2006] 5 W.W.R. 141; 269 Sask.R. 223; 357 W.A.C. 223; 2005 SKCA 76, refd to. [......
  • Babey et al. v. Greer et al., (2015) 473 Sask.R. 119 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • July 15, 2015
    ...Inc. v. Ingersoll- Rand Co. et al., [2014] 11 W.W.R. 140; 453 Sask.R. 79; 2014 SKQB 254, refd to. [para. 32]. Walling v. Walling (2007), 294 Sask.R. 256; 2007 SKQB 43 (Fam. Div.), refd to. [para. Morton et al. v. Asper et al. (1988), 55 Man.R.(2d) 61 (Q.B.), refd to. [para. 63]. Chappelle v......
2 books & journal articles
  • Divorce: Jurisdiction; Judgments; Foreign Divorces; Grounds for Divorce; Bars
    • Canada
    • Irwin Books Canadian Family Law - Ninth edition
    • July 25, 2022
    ...293; Droit de la famille — 21910, 2021 QCCS 2081. Compare Theriault v Theriault, 2014 SKQB 373 at paras 14–16, citing Walling v Walling, 2007 SKQB 43. Qin v Dai, 2021 BCSC 943 at para Chapter 7: Divorce: Jurisdiction; Judgments; Foreign Divorces; Grounds for Divorce; Bars applicable law and......
  • Divorce: Jurisdiction; Judgments; Foreign Divorces; Grounds for Divorce; Bars
    • Canada
    • Irwin Books Archive Canadian Family Law. Eighth Edition
    • August 3, 2020
    ...v Lin, 2013 ONCA 33; Essa v Mekawi, 2014 ONSC 7409. Compare Theriault v Theriault, 2014 SKQB 373 at paras 14–16, citing Walling v Walling, 2007 SKQB 43. Alcaniz v Willoughby, 2011 ONSC 7045, citing Muscutt v Courcelles (2002), 60 OR (3d) 20 (CA), and Follwell v Holmes, [2006] OJ No 4387 (Su......

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