AM v KF, 2023 ABCJ 128

In the Alberta Court of Justice Citation: AM v KF, 2023 ABCJ 128 Date: 20230503 Docket: FF901023039 Registry: Calgary Between: AM Applicant - and - KF and AF Respondents Decision of the Honourable Justice D. Mah Issue [ 1 ] The question before the Court involves one of jurisdiction. Facts [ 2 ] The Applicant is seeking Guardianship of her 15-year-old sister under the Family Law Ac t ( FLA ).

The two sisters reside in Cold Lake, Alberta and have lived together for approximately one year. [ 3 ] The child’s mother resides in British Columbia and consents to her elder daughter’s application for Guardianship as does the child, herself. Sadly, the child’s father was ostensibly involved in a fishing accident over a year ago. He is presumed deceased – although no one has produced a Death Certificate nor any confirmation that a legal declaration of death has been sought. [ 4 ] There is no connection between the child and Calgary.

The nearest Judicial District to Cold Lake is St Paul, Alberta. [ 5 ] Counsel for the Applicant is based out of Calgary and urges the Court to utilize Rule 3.3(3) of the Alberta Rules of Court which would permit the parties to agree on the Judicial District in which the action would take place. The Law

[ 6 ] Rule 3.3 (3) of the Rules states, …

(3) Despite subrules (1) and (2), the parties may agree on a judicial centre in which to start and carry on the action, in which case the judicial centre agreed on by the parties is the appropriate judicial centre unless the Court otherwise orders. [ 7 ] S 8 of the Court of Justice Act allows the Rules of Court to apply in instances where legislation does not stipulate a specific practice or procedure and where it would be expeditious or cost-effective to use the Rules . … 8

(1) The practice and procedure of the Court shall be as provided in this Act and the regulations.

(2) Where this Act or the regulations do not provide for a specific practice or procedure of the Court that is necessary to ensure an expeditious and inexpensive resolution of a matter before the Court, the Court may (

a) apply the Alberta Rules of Court , and (

b) modify the Alberta Rules of Court as needed. [ 8 ] No provisions contained within the FLA , the FLA General Regulation, AR 148/2005 , nor the Court of Justice Act ( CJA ) directly reference which Judicial Centre is to be utilized in an application for Guardianship, nor does it provide any statutory guidance as to how a Judicial District is to be determined. Accordingly, s 8 of the CJA d oes allow me to utilize the Rules of Court . Analysis [ 9 ] Notwithstanding the ability for this Court to apply the Rules of Court to the case at bar, I note that s 8 is a permissive provision and not a directive provision.

In other words, s 8 gives this Court the discretion to exercise the Rules where I find it appropriate to do so, but it does not mandate the use of such Rules . [ 10 ] In deciding whether or not the application should occur in the Judicial District of Calgary, I find that the family law jurisprudence surrounding instances of competing provincial or international jurisdictions to be helpful in determining the proper Judicial District within a province. [ 11 ] The caselaw shows that there is a two-part test in determining whether or not Courts in Alberta should have jurisdiction over a matter. [ 12 ] The first part of the test requires the child to have a real and substantial connection to this province. ( JPR v YMS , 2015 ABPC 283 at para 25 ).

The requirement for such a connection is highly fact specific, subject to the consideration of different factors and has a relatively low threshold.

Factors which have been considered in the past include: • Residence of the child; • Residence of the child at the time the application was filed; and • The child’s connection to the province. [ 13 ] If a real and substantial connection to Alberta is found, the second part of the test involves the Court querying whether or not the Court should exercise its jurisdiction. [ 14 ] The reasoning set out in the aforesaid two-part test is sound, and I find it appropriate to apply the same in determining which Judicial District is best suited to hear the application at bar. [ 15 ] In this case, I cannot find any connection between the child and the City of Calgary aside from the Applicant’s lawyer being situated in Calgary.

Respectfully, convenience to counsel is not a decisive factor when determining the appropriate jurisdiction of a case. ( Odland v Odland , 2017 ABCA 397 at para 22 ). Having found no nexus between the child and Calgary, I find it unnecessary to consider the second part of the test which involves the question of whether or not to exercise jurisdiction. [ 16 ] In addition, I find that there are also many practical reasons to decline the application from taking place in a setting where the child has no connection.

These reasons are especially concerning in the context of family law cases where a child is involved. 1) Filing outside the appropriate jurisdiction could encourage mischief such as judge shopping; 2) Parties filing future applications would likely be unaware of existing Orders granted in other jurisdictions, especially jurisdictions which have no connection to the child; 3) If a future dispute were to arise in the future regarding Guardianship, there could be administrative issues for the parties and/or authorities accessing existing Orders; 4) There is a risk of concurrent applications running in multiple jurisdictions without the Court in either jurisdiction being aware of the said applications ( DS v PA , 2018 ABPC 157 at para 47 );

5) In future cases, the presiding Court may be deprived of important information or context where the legal history of the family is not readily available or apparent; and 6) Emergency services such as Children’s Services or law enforcement agencies would likely be unaware that important court proceedings have occurred or been resolved elsewhere. [ 17 ] I, therefore, find that it would be inappropriate for me to permit the application to occur in the Judicial District of Calgary and order the matter to be transferred to the Judicial District of St Paul. Heard on the 25 th day of April 2023.

Dated at the City of Calgary, Alberta this 3rd day of May 2023. D. Mah A Justice of the Alberta Court of Justice Appearances: S. Page for the Applicant Self Represented for the Respondents