Pander v Chopra, 2024 ABCA 52

In the Court of Appeal of Alberta Citation: Pander v Chopra, 2024 ABCA 52 Date: 20240216 Docket: 2301-0138AC Registry: Calgary Between: Kaushal Pander Respondent - and - Chunmun Chopra Appellant _______________________________________________________ The Court: The Honourable Justice Patricia Rowbotham The Honourable Justice Michelle Crighton The Honourable Justice William T. de Wit _______________________________________________________ Memorandum of Judgment Delivered from the Bench Appeal from the Order by The Honourable Justice A. Woolley

Dated the 1st day of June, 2023 Filed on the 9th day of June, 2023 ( Docket: 4801 193472) _______________________________________________________ Memorandum of Judgment Delivered from the Bench _______________________________________________________ Rowbotham J.A. (for the Court): [ 1 ] The appellant appeals a decision which held that Alberta retains jurisdiction over the parties’ divorce action. [ 2 ] The parties married in India in 2012 and had a child in 2015. They moved to Canada in 2018.

On May 24, 2022, the respondent filed a statement of claim for divorce which stated that the respondent had been habitually resident in Alberta for at least one year immediately preceding the date of the claim. The statement of claim was served on the appellant in Calgary on October 24, 2022. [ 3 ] It is our understanding that in November, 2022, the appellant returned to India with the child and obtained an injunction from the family court in Gurugram, India to restrain the respondent from proceeding with the divorce action in Alberta. She also applied for restitution of conjugal rights in India.

The appellant and the child are currently living in India. [ 4 ] The respondent applied in morning chambers for a determination that Alberta had jurisdiction over the divorce. Subsection 3(1) of the Divorce Act , RSC 1985, c 3 (2nd Supp ), provides that “[a] court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding.” [ 5 ] The chambers judge concluded that Alberta retains jurisdiction over the divorce action.

She found that the parties were both resident in Alberta for four years before the claim was filed. The chambers judge ordered the appellant to pay costs in the amount of $675. [ 6 ] The appellant appeals on the ground that the respondent was not habitually resident in Alberta as required by subsection 3(1) because he was working in Qatar from March, 2021 to April, 2022. She also appeals the costs award.

She also raises arguments of forum conveniens and forum shopping. [ 7 ] In support of her argument that the respondent was not habitually resident in Alberta for at least one year before filing the action, the appellant applies to admit new evidence. It consists of a copy of the respondent’s LinkedIn profile showing his work history as being employed in Qatar from March, 2021 to April, 2022. This evidence likely does not satisfy the test for the admission of new evidence, as it was available at the time of the hearing before the chambers judge.

In any event we need not rule on it. [ 8 ] The complete answer to this appeal is that, as the chambers judge noted, the appellant was a resident of Alberta for four years prior to the filing of the claim. This satisfies the requirement of subsection 3(1) . On July 5, 2023, the respondent amended his statement of claim for divorce to reflect that the appellant, as opposed to the respondent, had been habitually resident in Alberta for at least one year immediately preceding the date of the claim. [ 9 ] In the result, Alberta has jurisdiction over this divorce.

Given our conclusion on this ground, there is no need to address the appellant’s arguments regarding subsection 3(2) of the Divorce Act . [ 10 ] As for the appeal as to costs, costs are in the discretion of the chambers judge. We see no reason to interfere with her decision. The costs were awarded under

Schedule C, Column 1 for a contested application. [ 11 ] The appeal is dismissed. As for costs in this court, the default rule applies. The respondent is entitled to his costs in Column 1 for the appeal. We invoke Rule 9.4(2)(c).

Appeal heard on February 12, 2024 Memorandum filed at Calgary, Alberta this 16th day of February, 2024 Rowbotham J.A. Appearances: A. Sadagheh for the Respondent Appellant, C. Chopra P. Singh (McKenzie Friend) for the Appellant