The couple were married in India before relocating to Canada
The Alberta Court of Appeal has dismissed an appeal challenging Alberta's jurisdiction over a divorce action between parties originally married in India.
The court’s decision in Pander v Chopra, 2024 ABCA 52 reinforced Alberta's authority to preside over the divorce proceedings, underlining the province's jurisdiction based on habitual residency.
The couple, who tied the knot in India in 2012 and welcomed a child in 2015, relocated to Canada in 2018. The respondent initiated the divorce process on May 24, 2022, asserting habitual residency in Alberta for over a year preceding the filing. The claim was duly served to the appellant in Calgary on October 24, 2022.
The case took an international turn when the appellant moved back to India with the child, securing an injunction from an Indian family court to halt the Alberta proceedings. In addition, she sought restitution of conjugal rights in India, where she currently resides with the child.
Despite these developments, the respondent sought a determination from an Alberta chambers session, asserting Alberta's jurisdiction based on the Divorce Act's stipulation that a province can entertain a divorce proceeding if either spouse has been habitually resident there for at least the year leading up to the action.
The chambers judge upheld Alberta's jurisdiction, finding that both parties had resided in Alberta for four years before the divorce claim was lodged. Consequently, the judge ordered the appellant to cover costs.
The appellant's challenge centred on the claim that the respondent's employment in Qatar from March 2021 to April 2022 precluded habitual residency in Alberta for the required duration. She contested the jurisdictional ruling and the costs award, introducing arguments related to forum conveniens and accusations of forum shopping.
The appeal included an attempt to introduce new evidence showing the respondent's employment in Qatar during the contested period. However, the court deemed this evidence as insufficient to satisfy the criteria for new admissions, being available at the original hearing.
Ultimately, the Court of Appeal concurred with the chambers judge, emphasizing that the appellant's four-year residency in Alberta before the divorce filing met the Divorce Act's requirements. This conclusion rendered the appellant's additional legal arguments moot.
Regarding the costs appeal, the Court of Appeal found no basis to overturn the chambers judge's discretion. The appeal's dismissal cemented Alberta's jurisdiction over the divorce, with the respondent entitled to costs for the appeal process.
