Does Alberta Have Jurisdiction To Hear Your Case?
Often, our clients seek legal advice as to whether or not the Alberta courts have the jurisdiction to hear parenting matters from another province. Situations like this occur when one parent resides in Alberta and the other parent resides in another province.
The Divorce Act: Two Step Analysis to Determine Jurisdiction
The law in Alberta under the Divorce Act stems from section 6 of the Act which gives the court discretion to transfer custody and access proceedings to another province in which a child of the marriage is most substantially connected. The Court will engage in a two-step analysis asking – 1) with which province are the children most substantially connected? 2) is the transfer of the application in the best interests of the children? A Court should only decline to order a transfer if it satisfied that the transfer would be contrary to the child’s best interests.
The Family Law Act Using Forum Non Conveniens to Determine Jurisdiction
In determining whether to stay an action, the Court will apply the principle of forum non conveniens, which guides the Court in determining whether jurisdiction is appropriate by asking if there is a different forum that is more convenient and appropriate for the pursuit of the action and securing the ends of justice. “The choice of appropriate forum is . . . to be made on the basis of factors designed to ensure, if possible, that the action is tried in the jurisdiction that has the closest connection with the action and the parties and not to secure a juridical advantage to one of the litigants at the expense of others in a jurisdiction that is otherwise inappropriate… there will be cases in which the best that can be achieved is to select an appropriate forum. Often there is no one forum that is clearly more appropriate than others.”
Case Law: Matt v. Rammasoot
This case dealt with a situation under the Family Law Act and not the Divorce Act. The children were born and raised in Thailand. The children lived in Thailand for most of their lives, but lived briefly in Canada. Mother brought application to return to Thailand with children and the Court allowed this. The Court ultimately found that Thailand had jurisdiction over the children The Court noted that the Family Law Act does not have specific jurisdictional provisions and thus went through the forum non conveniens to determine what was most appropriate. The Court discussed the four-part test and looked to the following factors:
- The location of the majority of the parties;
- The location of key witnesses and evidence;
- Contractual provisions that specify applicable law or accord jurisdiction;
- The avoidance of multiplicity of proceedings;
- The applicable law and its weight in comparison to the factual questions to be decided;
- Geographical factors suggesting the natural forum; and
- Whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court.