Boychuk v Hampton, 2019 SKCA 65

Court of Appeal for Saskatchewan Docket: CACV3117 Citation: Boychuk v Hampton , 2019 SKCA 65 Date: 2019-07-26 Between: Sandy Boychuk Appellant (Respondent) And Karen Hampton Respondent (Petitioner) Before: Ottenbreit, Whitmore and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Leurer On Appeal From: 2017 SKQB 220 , Saskatoon Appeal Heard: December 6, 2018 Counsel: E.F. Anthony Merchant, Q.C., for the Appellant Glenn MacKay for the Respondent Whitmore J.A. I.

Introduction [ 1 ] The appellant appeals the decision of a Court of Queen’s Bench Chambers judge that held that Saskatchewan was the appropriate forum for adjudication of the family property dispute between the parties. II.

Background [ 2 ] The parties cohabited in a common law relationship from 2002 until 2015. [ 3 ] After the parties separated, the respondent commenced an action in Saskatchewan, claiming an equal division of the family home and an unequal division of family property. [ 4 ] Some months later, the appellant commenced an action in Alberta and then brought an application to the Court of Queen’s Bench for Saskatchewan to have the Saskatchewan action transferred to Alberta. [ 5 ] The Chambers judge found that the majority of the facts were in dispute, but he was able to make certain relevant findings. [ 6 ] The parties appeared to reside both in Alberta and Saskatchewan during their relationship, spending much time travelling and spending some time in Alberta and some time at their cottage in Saskatchewan.

The Chambers judge found the respondent lived in British Columbia but was not certain where the appellant lived at the time of application. The appellant claimed he resided in Alberta, but the Chambers judge noted he was served with the petition in January of 2017 at a property in Saskatchewan. Being unsure of the residence of the appellant, the Chambers judge could not say whether it would be any more convenient for the parties to attend in Alberta or Saskatchewan to have the issues between them determined. [ 7 ] The Saskatchewan cottage is the only significant asset of the parties.

The respondent claims that the property was the family home but the appellant disputes that fact. [ 8 ] The Chambers judge reasoned in part that the Alberta Matrimonial Property Act , RSA 2000, c M-8 , only applies to married couples and does not apply to common law relationships, and concluded if the matter were to be transferred to Alberta, the appellant would take the position that the respondent would not be entitled to any value in the Saskatchewan property or in any other family property. [ 9 ] The Chambers judge considered The Court Jurisdiction and Proceedings Transfer Act , SS 1997, c C-41.1 [ Act ], and declined to transfer the matter to Alberta: Hampton v Boychuk , 2017 SKQB 220 , 98 RFL (7th) 165 [ Chambers Decision ]. [ 10 ] From that decision, the appellant appeals.

III. Standard of Review [ 11 ] The decision of the Chambers judge is a discretionary decision and, absent an error in principle or abuse of discretion, the standard of review applicable to decisions under the Act is deferential: see Hudye Farms Inc. v Canadian Wheat Board , 2011 SKCA 137

at para 13 , 342 DLR (4th) 659. [ 12 ] In order to exercise that discretion, this Court has recognized that a judge must correctly identify the law that governs that discretion. To the extent that the appeal involves the

interpretation of a statutory provision, it is a question of law subject to review on the standard of correctness: see Houk v Daniels Investments Saskatoon Ltd ., 2016 SKCA 147 at para 10 , 5 CPC (8th) 272; and 2055190 Ontario Ltd. v Zhao , 2018 SKCA 66 at paras 76–77 , [2019] 12 WWR 401. IV. Issues and Analysis [ 13 ] The Act prescribes the rules governing territorial competence (jurisdiction), as well as circumstances in which a Saskatchewan court should decline to exercise jurisdiction. In this case, both parties agree that Saskatchewan’s courts had jurisdiction. At issue in this appeal is the Chambers judge’s

interpretation of s. 10(2) of the Act , in particular his

interpretation of s. 10(2)(

b) and s. 10(2)(f). The sections in question each represent specific considerations a Chambers judge is required to make when deciding whether to decline jurisdiction over a matter in favour of another jurisdiction that has been put forward as more appropriate.

Section 10 provides as follows: Discretion as to the exercise of territorial competence 10(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to try the proceeding.

(2) A court, in deciding the question of whether it or a court outside Saskatchewan is the more appropriate forum in which to try a proceeding, shall consider the circumstances relevant to the proceeding, including: (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (

b) the law to be applied to issues in the proceeding; (

c) the desirability of avoiding multiplicity of legal proceedings; (

d) the desirability of avoiding conflicting decisions in different courts; (

e) the enforcement of an eventual judgment; and (

f) the fair and efficient working of the Canadian legal system as a whole. [ 14 ]

Section 10 of the Act is a codification of the common law doctrine of forum non conveniens : Teck Cominco Metals Ltd. v Lloyd’s Underwriters , 2009 SCC 11 at para 22 , [2009] 1 SCR 321; see also Pichler v Fiegehen , 2009 SKCA 101 at para 28 , [2009] 10 WWR 625; and Yara Belle Plaine Inc. v Ingersoll-Rand Company , 2014 SKQB 254 at para 73 , [2014] 11 WWR 140 [ Yara Belle Plaine ].

Legislation identical to s. 10 has been enacted in British Columbia ( Court Jurisdiction and Proceedings Transfer Act , SBC 2003, c 28 , s 11) and Nova Scotia ( Court Jurisdiction and Proceedings Transfer Act , SNS 2003, c 2 (2nd Sess), s 12). [ 15 ] The Chambers judge began his analysis looking at several facts that involved consideration of s. 10(1)(a). The respondent is presently living in British Columbia, but it was unclear where the appellant resided.

Based on this uncertainty the Chambers judge concluded that he could not say that “it would be any more convenient for the parties to have to attend in Alberta or Saskatchewan to determine the issues between them” ( Chambers Decision at para 27). He also noted that because the main, if not sole, family assets were the cottage and its contents, “the majority of the witnesses called on this issue will most probably be from Saskatchewan” (at para 28).

From all of this, he concluded that “it will certainly be more convenient for the witnesses to have the matter heard in Saskatchewan” (at para 28). [ 16 ] The Chambers judge then continued as follows: [29] If the action proceeded in Alberta, it would not be impossible for the petitioner to pursue her claim for division of family property, but it would certainly be more difficult. Unlike Saskatchewan where the FPA [ The Family Property Act ] has been amended to give common-law couples the same rights as married couples who separate, the Alberta Matrimonial Property Act only applies to married couples.

In Saskatchewan, the FPA creates a presumption that property acquired by unmarried couples, be it the family home or simply property, is shared equally unless a party can fall within an exception set forth in the statute. In Alberta, the general rule is that property acquired by a common-law couple during their relationship belongs to the party that paid for it and in whose name it is registered.

Any recourse the non-owning spouse would have would be through the common-law principles of constructive or resulting trust and unjust enrichment. [30] The respondent acknowledges this difference in the law between the two provinces but accuses the petitioner of forum shopping to gain a juridical advantage. I disagree. 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. [31] As I have already pointed out, there is a connection to Saskatchewan as the property at issue is in the province. Saskatchewan recognizes and accepts the rights common law couples have and does not penalize them for failing to get formally married.

In my view, this is a reflection of the fair and efficient working of today’s Canadian legal system and confirms that Saskatchewan is the jurisdiction in which this action should be determined.

[32] The fact that the respondent commenced an action in Alberta regarding the property in question some seven months after the petitioner had filed her action in Saskatchewan is not determinative of where the matter should proceed. In this case, the only issue between the parties is how the property they accumulated during their 13-year common-law relationship should be divided. This issue will be determined either in Saskatchewan or Alberta and wherever it is decided, the other action will be moot.

As such, I have no concerns about a multiplicity of legal proceedings or conflicting decisions in different courts. [33] As the main asset in issue is the Pasqua Lake residence and its contents, it would be easier to pursue enforcement of a Saskatchewan judgment in Saskatchewan.

A judgment from an Alberta court would have to be registered in Saskatchewan before enforcement could be pursued, adding some inconvenience to the process [ 17 ] The Chambers judge then concluded that “[t]aking all of these factors into account” he was “satisfied that it is appropriate that Saskatchewan retain territorial competence” (at para 34). [ 18 ] The principal point of debate before us was the Chambers judge’s analysis at paragraph 30.

The appellant’s argument was that the 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”. [ 19 ] Underpinning paragraph 30 of the Chambers Decision seems to be the idea that the law that would be applied to adjudicate the parties’ dispute (the choice of law) would be determined by the location where the dispute was heard. This notion is incorrect: Club Resorts Ltd. v Van Breda , 2012 SCC 17 , [2012] 1 SCR 572 [ Van Breda ].

Van Breda explains as follows: [111] Loss of juridical advantage is a difficulty that could arise should the action be stayed in favour of a court of another province or country. This difficulty is aggravated by the possible conflation of two different issues: the impact of the procedural rules governing the conduct of the trial, and the proper substantive law for the legal situation, that is, in the context of these two appeals, the proper law of the tort.

In considering the question of juridical advantage, a court may be too quick to assume that the proper law naturally flows from the assumption of jurisdiction. However, the governing law of the tort is not necessarily the domestic law of the forum. This may be so in many cases, but not always. In any event, if parties plead the foreign law, the court may well need to consider the issue and determine whether it should apply that law once it is proved.

Even if the jurisdictional analysis leads to the conclusion that courts in different states might properly entertain an action, the same substantive law may apply, at least in theory, wherever the case is heard. [ 20 ] The Chambers judge was likely led to his error on this point because s. 10(2) (

b) and s. 10(2) (

f) of the Act were not argued by the parties in the manner they were intended. That is to say, the parties should have argued the competence of the Saskatchewan courts to hear the matter and any other broad-based fairness and efficiency consideration that may have applied. The parties did not argue in this way. Rather, they invited the Chambers judge to consider the substantive fairness of Alberta and Saskatchewan laws. This error by the Chambers judge invites consideration of whether it is appropriate to intervene in his ultimate decision not to stay the Saskatchewan action in favour of the proceedings in Alberta. That requires an examination of s. 10(2) (

a) to (f). [ 21 ] The appellant did not suggest that the Chambers judge improperly analysed the considerations relevant to s. 10(2) (a). [ 22 ] Section 10(2)(b), the consideration of the law to be applied to issues in the proceedings, essentially requires a judge to inquire whether the court in a given jurisdiction can competently apply the law that will decide the case: see Broad v Pavlis , 2015 BCCA 20 , [2015] 6 WWR 685 (British Columbia’s legislation is similar to Saskatchewan’s legislation in this regard): [19] [The Chambers judge] also considered the other factors set out in s. 11(2) [the equivalent of Saskatchewan’s s. 10(2) ].

He agreed with the respondent that the comparative convenience and expense for the parties militates in favour of the action continuing in B.C. (s. 11(2) (a)) (at paras. 62–63). He found that enforcing a B.C. judgment would not be an issue (s. 11(2)(e)) (at para. 69); the inconvenience of having to bring in Alberta witnesses did not outweigh the other factors (s. 11(2)(a)) (at para. 70); and although the focus … revolves around Alberta law, the B.C.

Supreme Court is capable of applying it (s. 11(2)(b)) (at para. 72). … [51] The Chambers judge acknowledged that the issue … revolves to some extent around Alberta law, and concluded that the B.C. Supreme Court is capable of applying it (at para. 72). Much of the relevant law is not statutory but based on common law principles, which are common to both provinces. The legal issues are not complex.

While expert evidence on Alberta law may be necessary and witnesses may have to come from Alberta, the chambers judge considered these matters and concluded that they were not significant compared to the factors favouring B.C. (at paras. 70–72). (See also: Yara Belle Plaine ; and Frank and Ellen Remai Foundation Inc. v Bennett Jones LLP , 2016 SKQB 213 [ Remai ].) [ 23 ] The Chambers judge wrongly engaged in a comparative analysis of fairness of the laws in force in Saskatchewan and Alberta.

Under s. 10(2)(b), the Chambers judge was required to consider whether a court in Saskatchewan would be competent to apply the law that will ultimately decide the proceedings between the appellant and the respondent. [ 24 ] Section 10(2)(

b) is intended to be focused on the appropriateness of the court in relation to the applicable laws and not the fairness of the potentially applicable laws to the ultimate proceeding. Here, the applicable law is either Saskatchewan’s law, which would

mean that the respondent is considered a spouse for the purposes of family property division, or Alberta’s law, which would mean that therespondent is not considered a spouse for the purposes of family property division. Specifically, the applicable law is either that governingthe division of family property under Saskatchewan’s The Family Property Act, SS 1997, c F-6.3 [The Family Property Act], or thecommon law principles of constructive or resulting trust and unjust enrichment. Regardless of which law is applicable, a court inSaskatchewan would presumptively be capable of applying it.

Likewise, a court in Alberta would presumptively be capable, with relevantexpert evidence and witnesses, of applying Saskatchewan’s family property division law if that were found to be applicable. [25] The Chambers judge also noted he was not concerned about a multiplicity of proceedings under s. 10(2)(

c) of the Act orconflicting decisions under s. 10(2)(d), and that it would be easiest to pursue judgment enforcement in Saskatchewan because that iswhere the property is located (s. 10(2)(e)). These conclusions are not challenged by the appellant. [26] The substantive fairness or unfairness of the law in a particular jurisdiction is largely irrelevant to s. 10(2)(f): see VaughanBlack, Stephen G.A. Pitel & Michael Sobkin, Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act(Toronto: Carswell, 2012) at 204–207 [Black, Pitel & Sobkin]. [27] Guidance for how to apply s. 10 can be taken from the application of the

section in British Columbia and Nova Scotia as wellas from the application of the doctrine of forum non conveniens before the enactment of the Act and in jurisdictions that have not enactedsimilar legislation. However, s. 10(2)(

f) is a factor that has not conventionally been considered in the common law forum non conveniensanalysis and has not been consistently applied as an independent factor under the Act (Black, Pitel & Sobkin at 195–198). [28] In Tochor v Rudensky, 2016 SKQB 52 at paragraph 32, s. 10(2)(

f) was characterized as a “catch-all” provision that invited aconsideration of whether the other enumerated s. 10(2) factors promoted the fair and efficient working of the Canadian legal system: seealso Sigma Group of Companies Inc. v Chartier, 2007 SKQB 300 at para 19, 301 Sask R 224. [29] In Jiang v Shi, 2017 BCCA 276, [2017] 11 WWR 660, the British Columbia Court of Appeal considered it to be in the interestsof fairness and efficiency for all proceedings related to division of family property to take place in one forum. This, however, seems to bemerely a reconsideration of s. 10(2)(

c) and s. 10(2)(

d) of the Act, which require the Chambers judge to consider the desirability ofavoiding multiple proceedings and conflicting decisions: see also 3289444 Nova Scotia Limited v R.W. Armstrong & Associates Inc., 2018NSCA 26 at paras 55-56, 421 DLR (4th) 478; Yara Belle Plaine at para 77; and Cooper v Cooper, 2006 SKQB 40 at para 9, 276 Sask R54. [30] There are cases that have engaged in analysis that includes some elements of comparative legal advantages that may accruefrom the selection of one forum in favour of another.

For example, in Garcia v Tahoe Resources Inc., 2015 BCSC 2045 at para 84, [2016]3 WWR 169 [Garcia] (reversed on other grounds, 2017 BCCA 39, [2017] 5 WWR 631; leave to appeal to the SCC refused, ), a British Columbia Supreme Court judge understood s. 10(2)(

f) as inviting him to consider the juridical advantage thatwould accrue to one party or the other following the selection of the forum.

In that case, specific concerns respecting discovery rules, alimitation period, and alleged corruption in a foreign judiciary were all in issue and appeared to have been considered under s. 10(2)(f).Without commenting on the correctness of any particular part of this analysis, it can have no role in a case like this one where the choiceof law is unaffected by the choice of forum. [31] Focusing on the substantive fairness or unfairness of the law in a given jurisdiction would also run counter to the principle ofcomity as it is understood in Morguard Investments Ltd. v De Savoye, (SCC), [1990] 3 SCR 1077 (WL) (SCC)[Morguard]: [31] For my part, I much prefer the more complete formulation of the idea of comity adopted by the Supreme Court of the United States inHilton v.

Guyot, 159 U.S. 113 (1895), at pp. 163–64, in a passage cited by Estey J. in Spencer v. The Queen, (SCC), [1985]2 S.C.R. 278, at p. 283, as follows: “Comity” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, havingdue regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protectionof its laws [citation omitted].

As Dickson J. in Zingre v. The Queen, (SCC), [1981] 2 S.C.R. 392, at p. 400, citing Marshall C.J. in The SchoonerExchange v. M’Faddon, 11 U.S. (7 Cranch) 116 (1812), stated, “common interest impels sovereigns to mutual intercourse” betweensovereign states. In a word, the rules of private international law are grounded in the need in modern times to facilitate the flow of wealth,skills and people across state lines in a fair and orderly manner. Von Mehren and Trautman have observed in “Recognition of ForeignAdjudications: A Survey and A Suggested Approach” (1968), 81 Harv. L.

Rev. 1601, at p. 1603: The ultimate justification for according some degree of recognition is that if in our highly complex and interrelated world each communityexhausted every possibility of insisting on its parochial interests, injustice would result and the normal patterns of life would be disrupted. [32] In Van Breda, the Supreme Court described the principle of Morguard as being “to establish comity and a strong attitude ofrespect and relations between the different provinces, courts and legal systems of Canada” (at para 112).

The “strong attitude of respect” islacking in the Chambers judge’s decision in the present matter. [33] In my view, therefore, nothing in s. 10(2)(

f) assists the appellant’s request that the Saskatchewan action be stayed in favour ofproceedings in Alberta. [34] The Chambers judge erred in law when he considered s. 10(2)(

b) and s. 10(2)(

f) of the Act as requiring him to compare thelaws of Alberta and Saskatchewan for the purpose of assessing the relative substantive fairness of the applicable laws in thosejurisdictions. However, ultimately nothing turns on this error. [35] The onus was on the appellant to show that the factors set out in s. 10(2) would favour Alberta. No factors were found tosupport the appellant’s contention that the proceedings should take place in Alberta. On the other hand, the Chambers judge found

numerous facts in support of keeping proceedings in Saskatchewan. Even though treating s. 10(2) (

b) and s. 10(2) (

f) as neutral considerations in this case renders the respondent’s position weaker than the Chambers judge found it to be, the appellant has still failed to meet his onus. Given the facts found by the Chambers judge, any reasonable and responsible decision-maker would have come to the same conclusion, namely that Saskatchewan is the forum conveniens . The facts compel that conclusion. [ 36 ] Furthermore, if one were to consider the inevitable result rule, the errors of the Chambers judge are inconsequential to the determination that Saskatchewan was the appropriate jurisdiction for this proceeding: see R.P.

Kerans and Kim Willey, Standards of Review Employed by Appellate Courts , 2d ed (Edmonton: Juriliber, 2006) at 274–278. [ 37 ] In his Chambers application, the appellant also requested the court to sever the joint tenancy of the Saskatchewan property pursuant to The Land Titles Act, 2000 , SS 2000, c L-5.1 [ The Land Titles Act ], and leave him with title to that property. He argued the respondent was blocking him from listing the property for sale and so severance was appropriate. [ 38 ] The appellant tendered no evidence to support this request.

The Chambers judge observed such a request would more appropriately be dealt with under The Family Property Act . Although the order requested could be made under The Land Titles Act , such an order is discretionary and a deferential standard of review applies.

In the absence of an evidentiary basis, and in light of the standard of review, there is no reviewable error with respect to the Chambers judge’s decision not to sever the property. [ 39 ] The respondent petitioned for equal division of the Saskatchewan property, which was denied because it was not clear, based on the affidavit evidence, that the property was indeed the family home. Equal division pursuant to The Family Property Act would, therefore, have been inappropriate at that stage, and a trial was ordered. I do not see the appellant as taking issue with that decision. V.

Conclusion [ 40 ] I would dismiss the appeal with costs to the respondent. “Whitmore J.A.” Whitmore J.A. I concur. “Whitmore J.A.” for Ottenbreit J.A. I concur. “Leurer J.A.” Leurer J.A.