Boychuk v Hampton, 2017 SKCA 85

Court of Appeal for Saskatchewan Docket: CACV3117 Citation: Boychuk v Hampton , 2017 SKCA 85 Date: 2017-10-12 Between: Sandy Boychuk Prospective Appellant (Respondent) And Karen Hampton Prospective Respondent (Respondent) Before: Whitmore J.A. (in Chambers) Disposition: Leave to appeal granted in part On Application From: 2017 SKQB 220 , Saskatoon Application Heard: October 11, 2017 Counsel: E.F. Anthony Merchant, Q.C., and Evatt Merchant for the Appellant Glenn MacKay for the Respondent Whitmore J.A. I.

Introduction [ 1 ] Sandy Boychuk seeks leave to appeal against the decision of the Chambers judge dated July 17, 2017, pursuant to Rule 49 of the Court of Appeal Rules ( see Hampton v Boychuk , 2017 SKQB 220 [ Chambers Decision ] ). The Chambers judge’s decision concluded the Saskatchewan Court of Queen’s Bench had territorial competence to deal with the division of family property and did not decline that jurisdiction under The Court Jurisdiction and Proceedings Transfer Act , SS 1997, c C-41.1 [ CJPTA ]. [ 2 ] I conclude that leave to appeal should be granted for the reasons that follow. II.

Background [ 3 ] Karen Hampton brought a petition for equal division of the family home and unequal division of family property on August 10, 2016. In response, Mr. Boychuck sought an order transferring the action to Alberta, staying the action in Saskatchewan, transferring the family home into his name, finding this property not be considered the family home and not subject to equal division. III. The Chambers Decision [ 4 ] The CJPTA applies to the division of family property (see Hunter v Hunter , 2005 SKCA 76 at paras 15–16 , [2006] 5 WWR 141).

The Chambers judge considered ss. 3, 4, and 9 to 13 of the CJPTA and found the Court of Queen’s Bench for Saskatchewan has territorial competence over this action by virtue of a real and substantial connection. The majority of the family property was considered to be located in Saskatchewan, creating a presumption of a real and substantial connection. [ 5 ] The Chambers judge focused on the issue of whether to decline to exercise his territorial competence pursuant to the factors set out in s. 10(2) of the CJPTA .

He noted the main family asset is in Saskatchewan, the majority of the witnesses are from Saskatchewan, and Saskatchewan counsel was already engaged. A further consideration was the differing family property schemes in Alberta and Saskatchewan: the parties lived in a common-law relationship and Alberta does not have a statute analogous to The Family Property Act , SS 1997, c F-6.3, governing property distribution between common-law couples. In Alberta, parties must rely on the law of trusts and unjust enrichment.

Ultimately, the Chambers judge concluded there was a connection to Saskatchewan and the Saskatchewan regime for family property affirmed it was proper to maintain jurisdiction over the proceeding. [ 6 ] Mr. Boychuck now seeks leave to appeal and indicates the appeal would be taken on the following grounds: (

a) The Learned Chambers Judge erred in law by concluding at para. 30 that the laws of Saskatchewan were more fair for the adjudication of the property dispute, by saying “The reality of today’s world is that many couples live together for years without ever going through formal nuptials. Saskatchewan and other provinces have accepted this reality and have given common-law couples the same rights as married couples if the relationship ends.

I do not know why Alberta has not followed suit but by forcing a common-law spouse to have to pursue a claim to property acquired during their relationship under the common-law principles of equity because they did not purchase it themselves seems somewhat arcane.” The parties resided in Alberta as he concluded and he made the decision that he did not like Alberta law for this litigation;

(

b) The Learned Chambers Judge erred in law by concluding at para. 30 of the Reasons that the Petitioner was not forum shopping to gain an advantage. (

c) The Learned Chambers Judge erred in law by preferring the law of Saskatchewan when he concluded that the parties were both residents of Alberta; (

d) The Learned Chambers Judge erred in law by emphasizing his personal opinion of the laws between the provinces not the residency of the parties; (

e) The Learned Chambers Judge erred in failing to properly apply The Court Jurisdiction and Proceedings Transfer Act in failing to transfer the action to Alberta; (

f) The Learned Chambers Judge erred when he misapplied the facts that there would not be a multiplicity of proceedings between jurisdictions; (

g) The Learned Chambers Judge erred when he indicated that a majority of witnesses would be from Saskatchewan; (

h) The Learned Chambers Judge erred when he refused to transfer the Pasqua Lake residence into the name of the Respondent. [ 7 ] If leave is granted, Mr. Boychuck intends to request the Court of Appeal set aside the decision of the Chambers judge. He also seeks costs of the action and the appeal. IV. Analysis [ 8 ] The test to be applied to determine whether leave should be granted is well settled and is set out in Rothmans, Benson & Hedges Inc. v Saskatchewan , 2002 SKCA 119 at para 6 , 227 Sask R 121.

It essentially requires that the proposed appeal must be of sufficient merit and of sufficient importance. [ 9 ] The proposed appellant, in this case Mr. Boychuck, bears the onus to show these considerations weigh decisively in favour of granting leave: Mamchur v Sun Country Health Region , 2017 SKCA 6 at para 6 . Mr. Boychuck submits the proposed appeal meets the Rothmans test.

It is of sufficient merit and importance to warrant review of the Chambers judge’s decision. [ 10 ] In my view, the most important issue raised in the proposed notice of appeal is the ground addressing the comparison of the Saskatchewan and Alberta family property regimes with regard to common-law couples. The proposed appeal concerns the Chambers judge’s

interpretation of the differences between the two schemes, including his conclusion the Alberta laws are “somewhat arcane”, and the impact this had on determining whether to maintain jurisdiction. I consider this issue to have sufficient merit and broader implications to justify appellate review. [ 11 ] However, the proposed notice of appeal also contains numerous grounds that do not have merit and are not of sufficient importance. Grounds (b), (c), (d), (f), and (

g) are questions of fact that are both difficult to appeal successfully and are specific only to this case, with no broader implications. Ground (

h) concerns a discretionary decision that raises similar concerns as to merit and importance. [ 12 ] Thus, I conclude Mr. Boychuck has demonstrated that the issue regarding the Alberta and Saskatchewan family law regimes in his proposed notice of appeal is of importance beyond the parties. There is a broader interest in resolving the proper approach determining whether to decline jurisdiction where another province’s family property legislation differs from Saskatchewan’s in its treatment of common-law couples. [ 13 ] Accordingly, leave is granted to appeal on the following grounds: (

a) the learned Chambers judge erred in law by concluding, at paragraph 30 of the Chambers Decision , that the laws of Saskatchewan were more fair for the adjudication of the property dispute; and (

b) the learned Chambers judge erred in failing to properly apply the CJPTA in failing to transfer the action to Alberta. [ 14 ] Costs of this application will be costs in the cause. “Whitmore J.A.” Whitmore J.A.