Hiebert v Fingerote, 2021 ABQB 807

Court of Queen’s Bench of Alberta Citation: Hiebert v Fingerote, 2021 ABQB 807 Date: 20211008 Docket: 4803 158297 Registry: Edmonton Between: Shannon Vivian Hiebert Plaintiff - and - Joseph Moshe Fingerote Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B. R. Burrows _______________________________________________________ [ 1 ] Joseph Fingerote submits that this Court lacks jurisdiction to hear Shannon Hiebert’s application to vary his child support obligation.

He submits that the application to vary ought to be heard by the Manitoba court. [ 2 ] The parties were married in June 1997 in Winnipeg. [ 3 ] Their son was born on August 10, 2000. [ 4 ] They separated in May 2011. [ 5 ] Ms. Hiebert commenced this divorce and matrimonial property action in October 2011. [ 6 ] The Divorce Judgment was granted on June 9, 2014. It ordered Mr. Fingerote to pay Ms. Hiebert child support of $700 a month when employed and $400 a month when not employed. Ms. Hiebert had agreed to Mr. Fingerote paying that amount of child support.

The Divorce Judgment indicates that the amount was a deviation from the Federal Child Support Guidelines . [ 7 ] Ms. Hiebert’s present application to vary child support was filed on August 24, 2021. [ 8 ] As indicated Mr. Fingerote submits that this Court lacks jurisdiction to deal with the variation application. He references s.

5(1)(

a) of the Divorce Act, which provides: A court in a province has jurisdiction to hear and determine a variation proceeding if (

a) either former spouse is habitually resident in the province at the commencement of the proceeding; or (

b) both former spouses accept the jurisdiction of the court. [9] Before the recent amendments to the Divorce Act, where this

section now says “habitually resident”, it said “ordinarilyresident”. This change is not unique to s 5(1)(a). All the provisions in the Divorce Act which previously made jurisdiction depend onwhere a spouse or a child was “ordinarily resident” have been changed to make jurisdiction depend on where the spouse or child is“habitually resident”.

I found the following explanation for this change in materials published by the Government of Canada discussingthe recent changes to the Divorce Act (https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/div248.html): The change aligns the English and French versions of the Act. In the corresponding sections, the French version uses “résidehabituellement.” Many provincial and territorial statutes also include “habitually resident” in relation to jurisdiction for parentingmatters. The 1996 Convention also uses the term.

Case law indicates no practical difference in meaning between “ordinarily resident”and “habitually resident.” [10] Though the term “habitually resident” is used in all of the jurisdiction provisions of the Divorce Act, the Act contains nodefinition of that term. What then does “habitually resident” mean? [11] In Korutowska-Wooff v.

Wooff, (2004) 242 DLR (4th) 385, , the Ontario Court of Appeal identified thefollowing features of “habitual residence”: (para 8) - the question of habitual residence is a question of fact to be decided based on all of the circumstances. - the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”. - a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, suchas employment, family, etc. [12] In R v Barnet London Borough Council, [1983] 2 AC 309 at 349, Lord Scarman of the English Court of Appeal stated thatthere is no requirement in order that a person be held to be habitually resident in a particular place that the person have an intention tosettle in the place indefinitely. [13] In her affidavit, Ms.

Hiebert swears to the following facts relevant to her habitual residence: - When the parties separated in May 2011 she lived in Edmonton. - She worked for the University of Alberta in the Music Department. She also had work with other Edmonton music organizations. - The parties’ son attended Grant MacEwan University from September 2019 to April 2021. I understand that during that time, helived with Ms. Hiebert in Edmonton. - Before he finished his time at Grant MacEwan, the parties’ son applied for admission to a music program at the University ofManitoba to begin in September 2021. - In October 2020, Ms.

Hiebert purchased a house in Winnipeg to provide accommodation for the parties’ son while a student at theUniversity of Manitoba. She purchased the home before the parties’ son was formally accepted at the University of Manitoba becauseshe was confident he would be accepted into the program he wished to attend. - The parties’ son was accepted into the University of Manitoba music program for which he had applied. - Because the Winnipeg home was not needed for the parties’ son immediately after it was purchased, Ms. Hiebert rented it out for afew months.

From the end of January until after the parties’ son finished his Grant MacEwan program, the Winnipeg house was empty. The parties’ son moved into the Winnipeg house in May 2021. - In March 2021, Ms. Hiebert terminated the lease she held on her Edmonton residence and moved into the empty Edmonton condoof a colleague until mid July 2021. - After the parties’ son had moved to Winnipeg, Ms.

Hiebert committed “to live and work in Edmonton for at least the next two tofour years.” She suggests, though does not clearly so state in her affidavit, that she is committed to continue as a sessional teacher at theUniversity of Alberta, and in her musical coaching, performing and church music involvements in Edmonton. I understand that it is herpresent intention to do so. - In July 2021, Ms. Hiebert renewed her Alberta Driver’s License for 5 years.

She also changed the address on her automobileinsurance to the address of the Edmonton condo in which she is living. - Exhibited to her affidavit is an email from her U of A colleague confirming her understanding that Ms. Hiebert will be residing atthe colleague’s condo until such time as her work in Edmonton is completed. - Ms. Hiebert has moved some or her possessions to the Winnipeg house, including her piano. The parties’ son will need a piano inWinnipeg and she has been able to make other arrangements for her Edmonton needs.

- When she visits the parties’ son and other relatives in Winnipeg, she will stay in the Winnipeg house. [ 14 ] Mr. Fingerote, in his affidavit filed on this application, swears to the following facts: - The parties were both raised and educated in Winnipeg and were married there. They both still have close family there.

The parties’ son was born in Winnipeg. - Though he himself beneficially owns a residence in Winnipeg and stays there approximately one weekend per month and for extended periods “at the holidays” and in the summer, his habitual residence is Vancouver. - The parties moved to Edmonton in 2005 because of his work. They sold the residence they then owned in Winnipeg when they moved. They purchased a residence in Edmonton. - The parties lived together in Toronto for about 6 months in rented accommodation beginning in December 2008. It was while they were living in Toronto that they first separated. Ms.

Hiebert moved with the parties’ son to Winnipeg at the time of this separation. Mr. Fingerote took, or at least threatened, proceedings to require her to return to Toronto with their son. Ms. Hiebert and the parties’ son returned to Toronto. - In 2010 the parties reconciled and returned to Edmonton. - The parties again separated in May 2011. Ms. Hiebert was living in Edmonton. Mr. Fingerote was living in Banff. - In July 2021, Mr. Fingerote visited the parties’ son in the Winnipeg house. He saw what he recognized as many of Ms. Hiebert’s possessions in the house – including many items of her furniture.

He saw mail addressed to Ms. Hiebert at the Winnipeg house from the Government of Manitoba “and several other items”. - Mr. Fingerote swears that “it does not seem reasonable that the Plaintiff would purchase a two-bedroom house for [the parties’ son] to reside alone with all the Plaintiff’s belongings while she rented a condominium in Edmonton.” [ 15 ] Much of the “evidence” in Mr. Fingerote’s affidavit is as to things he has been told by his son. This is hearsay. I have not included it in the above

summary of Mr. Fingerote’s evidence. I decline to rely on it. In any case, in my view, the hearsay would not change my conclusion on this application. [ 16 ] In my view, Ms. Hiebert’s evidence clearly establishes that she is habitually resident in Edmonton. That she owns a house in Winnipeg, visits there reasonably frequently, has moved a significant portion of her possessions there and, indeed, may have long term plans to move there, does not make Manitoba her habitual residence. She has a settled intention to continue living in Edmonton for some time for the purposes of her work.

Whether or not her intention, if she has one, is to live in Edmonton indefinitely or permanently is not determinative. [ 17 ] I find that this Court has jurisdiction to deal with Ms. Hiebert’s child support variation application. I dismiss Mr. Fingerote’s challenge to that jurisdiction. [ 18 ] Having been successful on this application, I tentatively rule that Ms. Hiebert is entitled to costs. I will tentatively set the amount of those costs at $1000. If either party wishes to make submissions regarding costs, they may do so in writing of no more than two pages in length, filed and served by October 25, 2021.

If either party wants to reply to the submission as to costs made by the other side, they may do so in writing of no more than two pages in length filed and served by November 12, 2021. If no costs submission is filed and served by October 25, 2021, my tentative ruling as to costs shall be final. Heard on the 21 st day of September, 2021. Dated at the City of Edmonton, Alberta this 08 th day of October, 2021. B. R. Burrows J.C.Q.B.A. Appearances: Jerry D. Kiriak for the Plaintiff

Mr. Fingerote appeared without counsel