Navigating the emotional and financial complexities of divorce can be challenging enough, but when international borders come into play, the legal landscape can become even more overwhelming. For couples residing in Alberta, whose marital dissolution spans international lines, understanding the reach of Alberta courts is crucial to ensure that your family law matter is brought to the appropriate jurisdiction to avoid lengthy delays and increased legal expenses.

In addition to federal legislation, Alberta has its laws governing divorce proceedings. 

However, when one or both spouses reside outside the province or country, questions about jurisdiction, applicable laws, and enforcement of judgments can arise, adding layers of intricacy to an already complex process. This blog post will explore the nuances of cross-border divorces involving Alberta residents, shedding light on the jurisdictional principles that govern such cases.

What is Jurisdiction?

Jurisdiction generally refers to a specific court’s authority to deal with a particular matter before it. Alberta courts possess jurisdiction over divorce cases involving Alberta residents, but what happens when one or both parties reside elsewhere? This question lies at the heart of cross-border divorce proceedings. Considerations such as the location of the couple’s assets, the spouses’ habitual residence, and any agreements or arrangements may influence which jurisdiction holds authority over the divorce proceedings. 

Determining Jurisdiction

Canadian courts use a two-stage analysis to determine issues of jurisdiction. The first part of the test involves determining whether the specific province has jurisdiction over the particular matter. This may be explicitly clear through legislation, such as the federal Divorce Act, which stipulates that a party may bring a claim under it in the province they have lived in for at least one year immediately before the commencement of such a claim. 

From the Hague Convention to bilateral agreements between countries, various legal frameworks come into play when resolving disputes involving spouses residing in different jurisdictions. As such, Alberta courts must carefully consider these legal instruments and other complex inner workings to ensure equitable outcomes for all parties involved.

Real and Substantial Connection Test

Conversely, Alberta’s Family Law Act is not explicitly clear on when a province will have jurisdiction over a claim; therefore, a court will engage in a “real and substantial connection” test. First, a court will determine whether the legislation provides for specific jurisdictional authority or whether the court can pursue the common law principles of jurisdiction simpliciter, which involves weighing the strength of the connection between the jurisdiction, the claim and the involved parties. 

The second part of this analysis is heavily fact dependent and involves the forum conveniens test. In this test, a court will determine whether it should assume jurisdiction over the matter or decline jurisdiction in favour of another jurisdiction deemed the more convenient forum. The party raising the issue of forum non conveniens has the onus of proving why the court should decline jurisdiction. Before making a decision, a court will assess several factors, including, but not limited to:

• The principle of comity;
• The physical location of the interested parties and witnesses;
• Costs associated with transferring the matter to another jurisdiction;
• The children are physically location, and their connection to each jurisdiction;
• Whether a party has attorned to a particular jurisdiction (i.e. whether one party either implicitly or explicitly agreed to continue the case in a specific jurisdiction);
• Where the litigation can be resolved most efficiently within the proper administration of justice; and
• Whether one party is “forum shopping” in an effort to gain an unfair advantage.

Court of Appeal Upholds Alberta’s Jurisdiction in International Divorce Case

In the recent matter of Pander v Chopra, the Alberta Court of Appeal was asked to consider whether Alberta had jurisdiction over a divorce between two parties who were originally married in India. At the time of the hearing, the wife and the parties’ child resided in India, while the husband was resident in Alberta.

Parties Get Married in India Before Moving to Canada

The appellant (“CC”) and respondent (“KP”) were married in India in 2012 and had a child together in 2015 before moving to Canada in 2018. On May 24, 2022, KP filed a statement of claim for divorce, stating that he had been habitually resident in Alberta for at least one year before the date of the claim. 

The Court of Appeal understood that CC returned to India in November 2022 with the parties’ child and obtained an injunction from the family court in India to prevent KP from proceeding with the divorce action in Alberta. CC also applied for restitution of conjugal rights in India, where she and the child reside.

Chambers Judge Finds Alberta Has Jurisdiction; Decision Appeal 

Despite this, KP applied for a determination that Alberta had jurisdiction over the parties’ divorce. The Court acknowledged that section 3(1) of the Divorce Act provides that “​​[a] court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding.”

The Court noted that the Chambers Judge found that the parties had both been residents of Alberta for four years before the claim and concluded that Alberta had jurisdiction over the divorce action. However, CC appealed the decision, arguing that KP was not habitually resident as required by the Divorce Act, as he had worked in Qatar from March 2021 to April 2022. She also argued about forum shopping and forum conveniens, which refers to a court or jurisdiction being convenient for resolving the dispute. 

Court Affirms Alberta’s Jurisdiction Over Divorce

Ultimately, the Court upheld the decision of the Chambers Judge, given that CC was a habitual resident of Alberta for four years before the claim was filed, as this satisfied the section 3(1) requirements in the Divorce Act. KP filed an amended statement of claim on July 5, 2023, to reflect this change and, as a result, Alberta retained jurisdiction over the divorce. 

The Court also upheld the costs award issued by the Chambers Judge and noted that the “default rule” for costs applied to this matter, entitlement KP to Column 1 costs for the appeal.

Contact the Family Law Lawyers at Getz Collins and Associates for Comprehensive Advice on Divorce Proceedings

The skilled family litigation lawyers at Getz Collins and Associates offer modern, comprehensive and tailored family law services to accommodate each client’s unique needs, from property division to parenting arrangements. In divorce proceedings, our family law team will help guide you through the process and will provide practical legal advice at every stage of the process to ensure your case is filed and resolved in the appropriate jurisdiction. 

From our offices in Calgary and Strathmore, we represent clients in communities across Alberta, including Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, Hussar, and surrounding areas. To speak with a team member regarding your family law matter, call us at (587) 391-5600 or contact us online to schedule a confidential consultation.