Howard v Dzineku, 2024 ABKB 079

Court of King’s Bench of Alberta Citation: Howard v Dzineku, 2024 ABKB 079 Date: 20240212 Docket: FL03 72431 Registry: Edmonton Between: Beryl Araba Gyeduwaa Howard Applicant - and - Moses Kwame Dzineku Respondent _______________________________________________________ Endorsement of the Honourable Justice T.G. Rothwell _______________________________________________________ A. Introduction and Background [ 1 ] This matter came before me in morning Family Chambers.

The Applicant, Beryl Howard, (the Mother) filed a Notice to Attend Family Docket Court on December 5 th , 2023 indicating she wishes to apply for a parenting order and a child support order. The Respondent, Moses Dzinkeu, (the Father) had counsel attend Family Docket Court, who raised the issue of this Court’s jurisdiction. The Father resides in the State of New Jersey in the United States of America (“USA”). The Docket Endorsement directed that the issue of

jurisdiction be determined in Chambers. [2] The Mother has not commenced an action seeking an order for parenting or child support but did file a FL-10 Family LawAct Claim seeking “an order determining that Alberta is the proper jurisdiction to determine parenting and support of the children of themarriage.” [3] The Father served the Mother with a Notice of Motion in the State of New Jersey seeking a child support order returnable onDecember 28, 2023. [4] The following matters are not in dispute: • The parties were married in Ghana. • The Father moved to the USA in 2007 to attend post-secondary school and the Mother moved to the United Kingdom. • There are three children of the marriage. • The parties divorced on January 29, 2016 and the divorce was obtained in Ghana. • In 2019 the Mother moved to Nova Scotia with the parties’ children. • In June of 2023 the Mother re-located to Alberta with the parties’ children. • The children have always primarily lived with the Mother. • The Father lives in New Jersey and the children visit him there during the summer and the Christmas holidays.

B. Positions of the Parties Mother [5] The Mother submits that the Alberta Court of King’s Bench has jurisdiction to hear this matter and that this Court is the mostconvenient forum for the matter to be determined. The mother submits, inter alia, that she and the children reside here and that anAlberta Court is better placed to determine the appropriate quantum of child support for children who reside primarily in Alberta.

Father [6] The Father does not seriously contest this Court’s jurisdiction but submits that the New Jersey Court is the more convenientforum and notes that his New Jersey action was commenced first. C. Analysis [7] The analytical framework for determining conflict of laws questions is set out in the Club Resorts Ltd v Van Breda, 2012SCC 17 [Van Breda]. “When a Court considers issues related to jurisdiction, its analysis must deal first with those concerning theassumption of jurisdiction itself”: Van Breda at para 69.

Jurisdiction is determined using the “real and substantial connection test” asproposed in Morguard Investments Ltd v de Savoye, (SCC), [1990] 3 SCR 1077 [Morguard]. Preliminary Matter – Subsisting Action in Alberta? [8] When this matter came before me in morning Family Chambers it was not apparent to me that an underlying action had notbeen commenced seeking a parenting and child support order. All that had been filed seeking this relief was the Mother’s Notice toAttend Family Docket. Court.

The Alberta Court of Appeal considered whether a Notice to Attend Family Docket Court constituted anoriginating application in Kwadrans v Kwadrans, 2023 ABCA 203 [Kwadrans]. [9] Kwadrans considered whether filing a Notice to Attend Family Docket Court was a sufficient means to commence an appealof an arbitral award.

The Chambers Judge held that this was not simply an improper form or a technicality that could be cured under rule3.2(6) of the Alberta Rules of Court, Alta Reg 124/2010 but rather “[t]his is the failure to abide by a process established by a statute,which I am not able to override.” The Chambers Judge issued an order dismissing the originating application for being filed out of timeand striking the appeal. [10] The Alberta Court of Appeal upheld the Chambers Judge’s conclusion that an originating application had to be filed (para 20)and agreed that a Notice to Attend it is not an originating application. [11] The Court explained at paras 24-27: [24] The Court of King’s Bench has published information about Family Docket Court on its website.

In a publication dated June21, 2020, Family Docket Court was described as follows:

Family Docket Court is a place you go before you can proceed with the scheduling of any formal applications in a family matter. It is a place where the Court considers your matter and directs you to a process that best serves the needs of your family and your children. … To attend Family Docket Court, you must complete a Notice to Attend Family Docket Court form, select 2 date options, and submit it to the Clerk with a copy by email to the other party.

It is not necessary for you to have started an action or filed an application before filing your Notice to Attend Family Docket Court. [emphasis added] [25] The foregoing suggests that a Notice to Attend Family Docket Court was never intended to amount to a commencement document and this concept seems to have been acknowledged by the appellant in the language used in his filed Notice to Attend Family Docket Court when he wrote, “[t]his Notice to Attend is filed in the course of commencing an Arbitration Award appeal...” [emphasis added].

Therefore, while rule 3.2(6) provides the Court with the ability to correct a procedure that was “started in one form” that should have been started in another, we do not accept that a Notice to Attend Family Docket Court starts or commences an action as contemplated by rule 3.2 as a Notice to Attend Family Docket Court is not referenced in rule 3.2(1). [26] Further support for this conclusion is found in the definition

section of the Rules of Court, which provides: “Commencement document” means (

a) a statement of claim, (

b) an originating application, (

c) a counterclaim, (

d) a third-party claim, and (

e) a claim under the Family Law Act, and includes an amended commencement document; [27] Again, there is no reference to a Notice to Attend Family Docket Court as a means by which to commence or start an action. [ 12 ] While the Mother has a Claim – a Family Law Act in Form FL-10, she did not include in it a request that this Court make a parenting or a child support order. Based upon the reasoning in Kwadrans , I am not prepared to accept that the Mother’s Notice to Attend Family Docket constitutes an action.

I find that there is no proceeding before this Court under the Family Law Act or the Divorce Act for a parenting or child support order. [ 13 ] Had the mother commenced an action for parenting and child support, I would have concluded that this Court has jurisdiction to hear this matter because the children have been living in Alberta since June 2023. [ 14 ] Having established jurisdiction simpliciter, the next issue would have been a consideration of whether the Alberta Court of King’s Bench should exercise its jurisdiction when a proceeding for child support has also been commenced in New Jersey.

This step requires a determination of the forum conveniens . See: ET v GT , 2018 ABPC 147 at para 3 ; Hasham v Kanji , 2020 ABQB 483 at para 41 ; Consentino v Consentino , 2016 ABQB 331 at para 17 . [ 15 ] I decline to undertake a determination of whether this Court should exercise or decline its jurisdiction until after the Mother has formally commenced an action for a parenting and child support order. Upon confirmation that an action has been commenced and that the Father has been served with a Claim seeking this relief, I will consider the parties’ arguments on the forum conveniens issue. D.

Conclusion [ 16 ] I am seizing myself with this matter for a period of 30 days from the date of this decision. If I receive confirmation that the Mother has commenced and served a Claim seeking parenting and/or child support, I will consider the parties’ arguments on forum conveniens . If I do not receive confirmation within 30 days, I am no longer seized with this matter. Heard on the 23 rd day of January, 2024.

Dated at the City of Edmonton, Alberta this 12 th day of February, 2024. T.G. Rothwell J.C.K.B.A. Appearances: Allison Nutting for the Applicant Paul Govenlock for the Respondent