Yundo v Harerimana, 2011 ABQB 453

Court of Queen ’ s Bench of Alberta Citation: Yundo v Harerimana, 2011 ABQB 453 Date: 20110712 Docket: FL03 09833 Registry: Edmonton Between: Didi Mureman Yundo Applicant - and - Adidja Harerimana also known as Khadija Mutariza Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice A.B. Moen _______________________________________________________ I. Introduction [ 1 ] The application before me is a continuation of an application made in the Provincial Court of Alberta pursuant to the Family Law Act .

That court made decisions concerning child support and has asked that this court make the rest of the decisions concerning parenting time and responsibilities. [ 2 ] This matter has a long and arduous history in Alberta and in Ontario.

[ 3 ] The child about whom this application is made has been resident in Ontario since June 2004. Given that he was born August 20, 1999 and is now about 12 years old, he has spent seven years of his life in that province. [ 4 ] On February 15, 2005, the Provincial Court of Alberta granted a Consent Order maintaining jurisdiction in Alberta. [ 5 ] This matter was first before me in 2010 in a special chambers application. I queried the jurisdiction of this Court given that the child in question is a resident in Ontario.

I will set out the judicial history below which illustrates how confused this matter has become with respect to jurisdiction over the child. I pointed out that it was the Provincial Court of Alberta which had maintained jurisdiction in Alberta and that the Consent Order did not bind the Court of Queen's Bench. It was for the Provincial Court to determine if it maintained jurisdiction in the face of the Consent Order made in that court considering the length of time during which the child had lived in Ontario.

If one of the parties disagreed with the determination of the Provincial Court, then it was open for that party to appeal the decision of the Provincial Court to this Court. [ 6 ] I returned the matter to the Provincial Court of Alberta. [ 7 ] The Provincial Court heard matters concerning child support without considering the issue of jurisdiction. It was not, from my reading of the transcript, properly raised or argued before her.

She determined issues of child support sending the issues of parenting time and parenting responsibilities to this court, apparently believing that this court had jurisdiction to hear those matters. [ 8 ] The parties did not appeal her decision.

Rather they have brought before me the issues concerning parenting time and responsibilities which remained after the Provincial Court hearing. [ 9 ] Therefore, the first issue before me is whether the Court of Queen's Bench can take jurisdiction to hear matters pertaining to parenting time and parenting responsibilities pursuant to the Family Law Act (Alberta) in the circumstances of this case. [ 10 ] The mother did not concede jurisdiction to this court. The father in his legal brief acknowledged there is no juridical reason for Alberta to take jurisdiction.

Nevertheless, given that the father's former lawyer took another position entirely, I will briefly discuss the history of this case and the applicable law to ensure that it has been dealt with according to the law. II. History of the Action [ 11 ] Following is a

summary of the orders that have been made by various courts: [ 12 ] On April 7, 2003, Judge Buchanan of the Provincial Court of Alberta made an interim access order in favour of the father. [ 13 ] On July 18, 2003, Judge Kvill of the Provincial Court of Alberta made a guardianship order in favour of the father of the child. On that same day Judge Kvill also granted a custody and access order in favour of the father. [ 14 ] On May 7, 2004, shortly before the mother left for Ontario a memorandum of mediation was filed in the Provincial Court of Alberta. [ 15 ] On February 15, 2005, Judge Franklin granted a Consent Order (the "Consent Order") which order gave various directions

concerning parenting and agreed to Alberta remaining as the governing jurisdiction. [ 16 ] On August 10, 2007, Justice de Le Panet, of the Ontario Superior Court of Justice declined jurisdiction when the mother made an application concerning child support. He specifically pointed to the Consent Order made by the parties in 2005 stating that it appeared that enough time had not passed since the Consent Order was agreed by the parties.

His decision implies that other than that Consent Order, the child would have established residency in Ontario. [ 17 ] On November 7, 2009, Justice Bielby of the Court of Queen's Bench of Alberta, granted an order concerning the child. It appears that she granted the order on the basis of Justice de Le Panet's decision. However, the issue of jurisdiction was never clearly argued before her. [ 18 ] The matter came again before this court on March 24, 2010, before me.

I noted that in the normal course Ontario should have jurisdiction but directed that the matter be returned to the Provincial Court of Alberta for a determination as to whether that court continued to have jurisdiction. [ 19 ] On June 30, 2010, Judge Miller of the Provincial Court of Alberta granted an order concerning child support, including ongoing and retroactive support, and

section 7 expenses. III. Discussion [ 20 ] These matters are under the Family Law Act of Alberta. The parties were never married and the application before the Provincial Court of Alberta was made under that Act and the application before me was also made under that Act. The Family Law Act applies to all families whether common-law or married. The Court of Queen's Bench has jurisdiction in all matters under the Act. The Provincial Court has jurisdiction with some exceptions, none of which apply here. [ 21 ]

Section 18 of the Family Law Act provides that the court shall take into consideration only the best interests of the child. There is no specific provision of the Family Law Act which deals with the jurisdiction of Alberta courts when a child has lived in another province for an extended period of time. [ 22 ] If this were under the Divorce Act this jurisdictional matter would be less confused.

However, it is not and I will therefore not consider the Divorce Act and the sections pertaining to jurisdiction. [ 23 ] Although the lawyer for the mother argued the relevant statutes in Ontario, those statutes do not bind me and I must determine jurisdiction here according to the law of Alberta. [ 24 ] The matter which has confused this whole issue has been the Consent Order. The parties appeared before me in March 2010 at which time I explained to them that it was not the Court of Queen's Bench that had agreed to retain jurisdiction but rather the Provincial Court of Alberta.

I sent the matter back to the Provincial Court. [ 25 ] It appears that in June 2010, Judge Miller heard the application by the parties. It appears from the transcript that the application by the parties was for all matters of Corollary Relief concerning the child. However, Judge Miller only heard the portion respecting child support and sent the balance of the matter back to the Court of Queen's Bench. It also appears from the transcript that counsel did not argue clearly the issue of whether the Provincial Court retained jurisdiction pursuant to the Consent Order.

Certainly, Judge Miller made no decision with respect to this issue. Rather, she proceeded with the application concerning child support, made decisions and then, apparently having run out of time, sent them back to the Court of Queen's Bench for determination, stating "... the Queen’s Bench had jurisdiction to hear all matters.": at page 145. She made this statement without examining anything with respect to the jurisdiction of either the Provincial Court of Alberta or the Court of Queen's Bench of Alberta in light of the length of time in which the child has lived in Ontario.

[ 26 ] Therefore, this court must examine whether it continues to have jurisdiction notwithstanding that the child has lived in Ontario since June 2004. [ 27 ] There is no contest between the parties about the facts. The child moved to Ontario with his mother in 2004 when he was about four years old. He has continued to reside in Ontario since that time with his whole school history in that province. He is now about 12 years old.

Further, the evidence, and particularly the Consent Order, suggests that the child was removed to Ontario with the approval of the father. [ 28 ] The child has continued to reside in Ontario, his mother resides there and is the custodial parent, the child is engaged in extracurricular activities there, the majority of the child's friends live there and go to school there.

Any potential witnesses as to his best interests, such as teachers and/or healthcare workers, who might be called to give evidence concerning the child's best interests, live in Ontario. [ 29 ] In other words, the child is most substantially connected to the Province of Ontario. [ 30 ] No judicial consideration of the Family Law Act and in particular the jurisdiction of the courts in Alberta over a child who is substantially connected to another province was provided to me by either counsel. [ 31 ] However, it seems reasonable to me that the court who is best able to deal with the child and its welfare is the Ontario court.

That court will be able to deal with issues pertaining to parenting time and parenting responsibilities in a fair, full and equitable manner. That court will deal with the real best interests of the child based on evidence easily available in Ontario. [ 32 ] Under the Family Law Act this Court is bound to consider the best interests of the child.

Given that it is the Ontario courts that will have access to the evidence that will reveal the best interests of the child, this court ought not to take jurisdiction. [ 33 ] Therefore, I find that this court does not have jurisdiction to consider parenting time and parenting responsibilities concerning the child, nor does this court have jurisdiction to consider matters pertaining to child support. Those matters must be dealt with by the Ontario courts. [ 34 ] I direct that the parties make any further applications concerning child support, parenting time and parenting responsibilities in the courts in Ontario.

IV. Conclusion [ 35 ] Given the length of time that the child has resided and gone to school in Ontario, the child is most substantially connected to Ontario. Alberta courts do not have jurisdiction to hear any matters concerning the best interests of the child in this case.

All further matters are directed to be heard in Ontario. [ 36 ] Although it is not within my jurisdiction to make an order with respect to how further matters will be heard, I note that this Court and the Provincial Court of Alberta accommodated the mother and her Ontario counsel in this jurisdiction through the use of the telephone when the father made his application here.

The father requests that such courtesy be extended to him in the event there is any application in Ontario. [ 37 ] Further, given that the parties have recently gone through the expense of a hearing with respect to child support, the father requests that the court in Ontario enforce the recent order of the Provincial Court of Alberta respecting child support. In this regard I note

that the mother was fully involved and represented in the child support hearing before the Provincial Court of Alberta and should, therefore, have no complaint about the result. Certainly she did not appeal it to this Court. Nevertheless, I cannot direct what the Ontario courts may do if faced with an application by the mother. Again I note that the father asks the Ontario courts to take note that there was a full hearing in Alberta in 2010.

He may, of course, provide the Ontario court with a copy of the transcript and the orders made before the Alberta court. [ 38 ] Given that counsel for the father in the brief sent to me by new counsel for the father conceded that there was no juridical reason for the father to resist the jurisdiction of the Ontario court, each party is to bear their own costs. Heard on the 11 th day of March, 2011. Dated at the City of Edmonton, Alberta this 12 th day of July, 2011. A.B. Moen J.C.Q.B.A. Appearances: D. Craig Spencer Gledhill Larocque for the Applicant Dr. Séverin N.

Ndéma-Moussa Ndéma-Moussa Law Office for the Respondent