LAW 454 CONFLICTS OF Acorn CHAPTER 1—CHARACTERIZATION

3 Basic Questions: A. : which court has jurisdiction over the matter? Which court will take jurisdiction over the matter? –can take jurisdiction but under circs of the case there is another forum that is more appropriate in the interest of justice to hear the case B. Choice of : which law governs the matter? C. Enforcement: will the judgment be enforceable in other

Comity: recognition of one nation’s legal/executive/judicial acts by another -duty regard to international duty & convenience

“ Rule” -a rule that tells the court which law to apply given the nature of the subject matter -courts determine which law should apply by characterization of the issue : law of the forum hearing the case : law of the cause, law to apply once followed the choice of law rule lex situs: law of the place where the property is situated delicti: law of the place where the tort was committed : law of the place where a marriage is celebrated : law of the place where a contract was made : law of the place where a party is domiciled

There are 7 choice of law rules: 1. torts governed by the place where the tort committed (lex loci delictii) 2. contracts governed by the law the parties intended 3. formalities of marriage are governed by the law of the place where the marriage was celebrated (lex loci celebrationis or lex loci contractus) -once applied with the requirements of getting married then the marriage is recognized in other jurisdictions 4. intrinsic validity of marriage is governed by the ante-nuptial of the parties -ante = before the wedding where did you reside -cannot live in a place that doesn’t recognize same sex marriage and then elope to get a valid marriage 5. succession to movable property is governed by the law of the place where the deceased was domiciled (lex domicilii) 6. succession to immovable property is governed by the law of the place where property is situated (lex situs) 7. matrimonial property is governed by the law of the matrimonial domicile: the law of the place where the parties set up their matrimonial home after marrying (lex domicili)

Characterization: -characterization of the question refers to the process whereby we decide which choice of law rule ought to be applied -always done on the basis of the law of the forum (lex fori) -but for immovable vs. movable the court looks to lex situs

Hogg v. Provincial Tax Commissioner (1941 SKCA) F: deceased was domiciled in SK at the time of her death, she owned the rights of various mortgages on land which was situated in B.C. - Problem: the SK Succession Duties Act stated that any property devolving under the law of SK, estate taxes would be owed; SK felt that the mortgages constituted property devolving under the law of SK and therefore they were owed taxes I: In conflicts property is movable or immovable. In statute property is real or personal. Do they have to coincide? D: No, can be immovable in conflicts while domestically real property R: look to the lex situs to determine how the rule is applied, decision based on the laws of evidence, in B.C. distinction b/w moveable and immoveable property is very different from real and personal distinction, immoveable/moveable distinction which is a creature of Conflicts law, in this situation, mortgages are considered immoveable R: just b/c something is defined as moveable property in domestic law, doesn’t mean that it will be characterized as moveable property for the purposes of conflicts of laws o Money coming out of land has historically been classified as immoveable and ∴ mortgages would be classified as immoveable Results: once you decide mortgages are immoveable property, then they devolve under the law of lex situs and therefore , B.C. law is applied; in B.C., the tax commissioner is not able to tax estates ∴ SK was not entitled to the estate tax

Pouliot v. Cloutier (1994 SCC) F: married in 1936 in NH, moved to QB, domicile of choice in QB, H made out a will leaving all property to his brother, H dies, W discovers she’s been disinherited, NH entitled her to ½ of H’s estate, no provision in QB, in QB once someone marries property becomes part of a community regime where the property each spouse owns independently, they now share equally with their spouse I: How to characertize this issue? D: this is a false conflict, deals with succession to movable property on death R: if characterize as matrimonial property then NH law applies, if characterize as a matter of succession to moveable property then look to domicile at the time of death so QB applies, look to the T’s domicile at the time of death, he was domiciled in QB law says you can’t will away all your property to someone other than your spouse.

NOTE: when you get a false conflict in a case, it’s an indication that something has gone wrong

Under QB law, the spouse already owns ½ of the property so it would be draconian to say you had to will the property to your spouse (the spouse already had ½!)

What should be done? - had the Court characterized the issue they would have stated: this is about a wife wanting the property of her husband; given she is a wife, she will likely want something from her husband at the time of his death → this looks like a matrimonial property issue – property the wife believes she’s entitled to at the time of her husband’s death - if we decide it is an issue of matrimonial property then we find that we apply the law of the place the couple was married - we then should apply the whole of New Hampshire Law, and find that there is no false conflict

3 Principles of Proper Characterization: (1) Characterize the issue at its highest possible level of abstraction -not particular statute or rule in question. -forget about possible legal solutions in each jurisdiction

(2) apply the whole of the legal system that the choice of law rule directs you to -do not apply only selective provisions. -look at the big picture

(3) Consider matters of fairness when making the characterization -is one of the parties trying to avoid obligations which would be enforced under both competing legal systems?

SUBSTANTIVE LAW OR PROCEDURAL RULES : Procedural Law: -machinery of the Court -used to enforce substantive rights (i.e. rules of evidence and Provincial Rules of Court) -lex fori -deals with enforcement and remedies -Court always applies its own procedural rules EVEN WHEN doing the substantive rules of another jurisdiction -never sits as a foreign court -remains true to own institutional identity

Substantive Law: -everything else -i.e. the substantive law of contracts, property law, and torts -lex causae (law of the cause), it governs the dispute -choice of law rules direct us to this Leroux v. Brown (very old English case) NOTE: this case is the source of much confusion about the distinction b/t substance and procedure -characterized Statute of Frauds and procedural piece of legislation -distinction b/t rights and remedies -SOF is about remedies, but does not extinguish rights -“how to do it” = procedure (Prof says) -SOF is procedural vis a vis the creation of Ks -but this procedure is part of the substantive domestic law -it makes more sense to think of it as a substantive law -most compelling argument to characterize it to procedure is that it is akin to a rule of evidence, about how a K needs to be proved in the English courts -proof of the K requires writing

Horseshoe Club v. Bath (1997 BCSC) F: BC Gaming Act provides that no suit can be brought to recover money lent for the purposes of gambling, no such provision in NV, B goes to Nevada, gambles, borrows money, racks up an enormous gambling debt, returns to BC, doesn’t repay, casino sues him in BC b/c that’s where he is, along with his assets, lex causae is Nevada, K said that it was to be governed by Nevada law I: Is this a substantive or procedural issue? D: this is a substantive, lex causae is NV R: everything took place in NV, governed by Nevada law where there is no provision like the BC Gaming Act, B tried to say that “no action shall be brought” should be getting rid of the remedy and not the right, wording looks like cant bring the action in BC, does not mean that no action exists, just that cannot get a remedy for it in BC R: clarifies that the difference for procedural/substantive issues is a remedies/rights, no longer a purely textual approach to interpreting substance/procedure distinction

NOTE: our def is not very sympathetic -remember the 3 rd principle of characterization: fairness -this clearly effects rights as well as remedies and was intended to prohibit loans for gambling in BC, not an attempt to stop making loans in other jurisdictions

Tolofson v. Jensen (1994 SCC) F: car accident in SK, ptf and def lived in BC, limitations period in SK expired, but still running in BC, ptf sues in BC, I: Is a limitations period a substantive issue? D: substantive, limitations strongly impact the rights of parties R: doesn’t make sense to say your action still exists and you just don’t have a remedy -this is a full on rights issue, no longer viewed as procedural (as in the past) -found the ptf was out of time *the court retroactively punts the ptf out of their action, in this case the ptf was relying on good law that the limitation period was a procedural issue -prof thinks this is an unfair decision Does it make sense to understand limitation periods as substantive? -at the outset of the litigation you don’t know what the lex causae is -it was contested as to what it would be -as a practical matter the ptf should be able to rely on limitation period on place where they are bringing the action b/c they don’t know where the lex causi will be -still a danger of

issue of characterization of procedural vs. substantive is not something you can clearly just pick and choose, must always refer back to the rationale for the rule is undertaking its interpretation **it is about the inconvenience and hindering the court from doing business as usual vs. the how to (procedural)

AB tries to overrule this via Limitations Act s. 12 What this section says: -“the limitation law of the Province shall be applied whenever a remedial order was sought in this Province, notwithstanding that, in accordance with the conflict of law rules, the claim will be adjudicated under the substantive law of another jurisdiction” -this says that the AB period is used, even if the lex causae is different

Castillo v. Castillo (2004 ABCA) F: car accident in California, H&W are both from AB, insured in AB, ptf brings action in AB, Cal law says limitation period has expired (1 year), AB period still running (2 years) D: ABCA said that the combined effect of s. 12 and Tolofson was that both limitations periods applied and that the plaintiff had to have brought her action in time in both jurisdictions in other to be able to sue in the Alberta court -look to lex causae first to see if limitation period met, then lex fori **Prof thinks this is a bad decision: the clear intent of the legislature was to overrule Tolofson (which stated that limitations periods are substantive) -wording is significantly ambiguous that it was left to the court to misinterpret

Castillo v. Castillo (2005 SCC) -upheld the reasoning of the ABCA -said that the legislation does not breath life into actions that are statute barred in the lex causae -was also argued that AB legislature did not have the power to change the ruling in Tolofson -majority of the court did not deal with this argument

Characterization of Debtor Protection Legislation German Savings Bank v. Tetrault (1904 QBSC) F: NY statute “no action can be commenced or maintained after foreclosing w/o leave of the same court who granted the foreclosure, NY court did not grant leave, D in NY and had land there, borrows a lot of money and then goes to QB and defaults, forecloses in NY and attempts to sue her on the covenant to repay I: Procedural or Substantive? D: substantive piece of legislation R: textual analysis should be considered is not determinative of right/enforcement distinction, just b/c statute’s name says procedural doesn’t mean it will be so for the purposes of private , QB wouldn’t hear the case and the bank was prevented from suing on the covenant, where K made and obligation extinct it cannot be revived by a law in the jurisdiction where it is attempted to be enforced R: rejects textual approach to substantive/procedural distinction

ATB v. Granoff (1984 BCCA) F: chattel mortgage, def buys car in AB, goes to BC and defaults, bank seizes, sells, but def still owes more money than the debt, ptf brings action in BC, lex causi is AB b/c that’s where the K made, good situated, at the time no AB debtor protection law, can seize and recover deficiency, BC did have debtor protection law, ATB wants BC legislation to be characterized as substantive so that it will not apply I: Substantive or procedural? D: both R: the court returns to a textual type of interpretation -s. 23(1) ..”guarantee may enforce his right … (2) where possession is taken…the obligations are extinguished -court concluded that s. 23(1) was procedural and therefore part of the lex fori to be applied by the BC court -may enforce the right is code for procedural -the other section (2) was substantive because it deals with extinguishing rights -extinguished is code for substantive -court said both of these sections mean shrewd intention on the part of the draftsperson

Prof thinks violating the first rule of characterization which is that you characterize at the highest level of abstraction

TD Bank v. Martin (1985 SKQB) F: M in BC, takes out a mortgage with TD who are also in BC, M goes to SK, defaults on loan, TD forecloses and wants to sue on the covenant to pay, go to SK b/c there’ll be no problems getting the court to take jurisdiction, s. 3 says “…no action shall be commenced…:, s. 2 says “…no action shall lie on the covenant to pay…” I: Are s. 3 of SK Land Contracts Act and s. 2 of SK Limitations Act are procedural or substantive? D: both were substantive and were not part of SK to be applied to the case R: legislation is substantive, just b/c we refer to something as a rule of procedure domestically doesn’t make it procedural in conflicts, “no action shall be brought: does NOT equal procedure for conflicts, doubt should be resolved substantively, need to analyze specific question in light of its legal and factual background, disallowing a rt of action may be tantamount to destroying a K, keep local concepts or categories in mind when characterizing a foreign rule R: return to a total picture analysis rather than a textual approach

Rules of Evidence:

Re Cohn (1945 English Court of Chancery) F: mom and daughter both killed in same air raid in London, mom has a will in which she leaves everything to her daughter, daughter has a will in which she leaves everything to her husband, mother also has a provision in the will which says that if her daughter predeceases her that everything will go to her sisters children (nephews/nieces) -domiciled in Germany died in England, action heard in the English courts, German law presumes they die at the same time, England presumes that the older person dies first I: Do we apply the German presumption as part of the substantive law of the lex causi? D: yes R: rules of evidence are applied in order to come up with the relevant fact, fact that we are proving in this case is the uncertainty of the time of death, once the uncertainty is proved, the presumption of order of death tells us what is to be done after uncertainty is proved, these rules tells us what to do, not how to prove the death and uncertainty thereof -this means we look to the lex causae which tells us they die at the same time R: presumptions of fact are not rules of evidence so they are not procedural -they tell us what the evidence is not how to get it

C. Remedies Phrantzes v. Argenti (1906 Eng QB) F: W’s father failed to give proper dowry, all living in England, all Greek nationals - Greek law the father has an obligation to dowry to the husband -if he doesn’t the daughter has a right of action against the father to compel him to provide the dowry -Greek court looks at socioeconomic position of all parties and make a guess about an appropriate sum to be paid to the husband, then would compel the father to enter into a K with the husband (who is not in fact a party to the proceedings) -court assumes that the lex causae is Greece (very unlikely!) I: Is this substantive or procedural? D: so intertwined that cant recognize the rts w/o participating in remedies R: court reengages the right/remedy distinction -even if Greek law is to govern, we must look at the kinds of remedies that an English court is capable of giving, remedies are part of the procedural law of the forum, so apply only own remedies, court can only use the tools that it is empowered under its own law to use, if lex causi applied to establish the daughter’s right, the court is unable to exercise the remedy sought -the pairing of remedies with procedural rules and rights with substantive law resurfaces in this case and it shown to have some continued force -court is confined to only the kinds of remedies that it is empowered under its law to give R: where substantive rights of the lex causae can only be enforced by remedies that are completely unknown to the forum the action cannot be maintained in that forum -courts DO NOT sit as a foreign court!

Khalij Commercial Bank Ltd. v. Woods (1985 ONHC) F: def was in Dubai, racks up a large debt in favour of the ptf bank, secures the loan by way of a floating charge debenture, takes off to ON, sues in ON, ptf trying to say that Phrantzes is an analogous case b/c Dubai remedies so different, Dubai allows for prejudgment imprisonment of the debtor I: Is substance too intertwined with procedure to apply? D: no, but b/c of differences in law apply our own R: remedy that the execution court in Dubai gives is foreign to the ON court, here we can find in the lex causae the amount owing and use our own remedies for the debt repayment, we are used to enforcing remedies R: we can use our own procedures if those from the lex causae are too foreign, so long as the substantive right is something we would understand (debt enforcement) NOTE: ON court distinguished this case from Phrantzes -in that case there was no way in honouring the claim

Canadian Deposit Insurance Corp v. Canada Commercial Bank (1994 Alta QB) -following collapse of a bank in the early 80s -only understand the ruling: the validity of SIs is a matter of substantive law -once validity is determined, priority of creditors is done by lex fori as a matter of procedural law

NOTE: heads of damages are substantive BUT quantum is procedural -resurfacing to the right and remedy distinction

Somers et al v. Fournier et al (2002 ONCA) F: S injured in car accident in NY, domiciled and resident in ON, sued in ON, def submits to the jurisdiction of the ON court b/c damages in the US are always higher, ON there are caps on non-pecuinary damages I: What about the law relating to costs, is it substantive or procedural? Prejudgment interest? Procedural or substantive? Quantum of damages and the cap in ON? Procedural or Substantive? Should the courts make an exception ? (Deal with this later) D: for costs, the ON rules should apply b/c were procedural R: costs are procedural b/c they are discretionary in nature, way to discipline the litigants, prejudgment interest is a claim to interest that the ptf has been out of pocket for since the time of the tort, consider it as part of the ptfs losses (ex for medical expenses and loss of earnings), found that the interest law was substantive b/c it is like a head of damages, caps on award for non-pecuniary damages were procedural b/c issue of quantum, -the head is established by the law of NY and the maximum amount available is capped by ON thus dictating the quantum available

NOTE: the rule that heads of damage are substantive and quantum is procedural can cause problems, what happens if the head exists in the lex causi but not the lex fori -how do we calculate damages when the heading doesn’t exist in the forum

CHAPTER 2—DOMICILE Introduction: -more dependent = more the court will apply rules to determine your own domicile -“propositus” is the person whose domicile we are trying to figure out -determined by the lex fori -applies its own law to determine where the person is domiciled -different than , citizenship, or residence -you are never without a domicile

3 Types of Domicile: 1. of origin: the domicile that you are born with -mother’s domicile if parents unmarried at time of birth -father’s if your parents are married at time of birth -NOTE: this does not necessarily mean the place where you were born!!! -NOTE: lex fori determines the age of majority -NOTE: legitimacy is governed by father’s domicile at date of birth 2. of choice: any adult person can have own domicile of choice -requires 3 things: 1. animus manendi –intention to stay/remain in that place for the rest of your days 2. factum –that you are actually there 3. -need to be of the age of majority to establish a domicile of choice -married women used to be incapable of having one of these until 2006

3. of dependence -married women take the one of her husband -ex if husband moves to another country, the wife tracks the husbands as he moves all over the world, whether she does or not -wives always take her domicile from her husband whether or not he is a minor or not NOTE: in a petition for nullity of marriage, the domicile of H does not attach if the marriage found to be void, if it is found voidable then it does attach

3 Ways to get rid of Domicile of Dependence 1. death of husband 2. divorce 3. judgment of judicial separation

-for children all the changes of domicile of dependence of the parent will follow those of the parent

What are the rules for dependent minor children? -CL rule is minor husband takes domicile on his parent depending on if he is legitimate or illegitimate -CL rule for wife is that she takes her domicile by (possibly) double dependence, takes hers from her husband who takes his from parents (if he is a minor, if not then he has his own) doctrine of reverter: -in all cases of ambiguity the domicile of origin revives, this ensures that no one is ever without a domicile

A. Domicile of Origin

Udny v. Udny (1869 HL) F: 2 sons vying for the fathers estate, father starts off with Scottish domicile of origin, moves to England and gets domicile of choice there, moves to France, meets woman, has child 1, then they get married, has child 2, father dies and property is to go to the father’s eldest legitimate son, Scots law says that fathers subsequent marriage retroactively legitimates child, English and French law say that children are irretrievably illegitimate if born out of wedlock I: Which of these jurisdictions do we look to determine the legitimacy of child 1? D: Scotland R: choice of law tells us legitimacy of child determined by law of fathers domicile -child 2 is trying to argue that father was domiciled in England or France -court said at the time of first boys birth father was uncertain of whether he was going to stay there, eventually did leave, so England is not the right one, situation of ambiguity, so domicile of origin springs back to life, so he was retroactively legitimated R: in situations of ambiguity of domicile we revert to the domicile or origin -uphold the doctrine of reverter

B. Domicile of Dependence -s. 104 Family Law Act -taking an indirect route in the way its drafted -legal personality is independent from that of its spouse -married person has same legal capacity as unmarried person

NOTE: up until 1968 jurisdiction of divorce was based on petitioner’s domicile which was determined based on the Husband’s domicile -this was difficult when spouses were deserted and the woman couldn’t bring a petition in a far away country

Harrison v. Harrison (ENG 1953) F: W brings a petition for divorce in Eng, H had assaulted the W, was jailed and was not contesting the petition, court was concerned about jurisdiction, H born in England to married parents domiciled in England, H stayed in England when parents move to SA, domicile of dependence becomes SA even though he remains in England, leaves England for NZ, marries while still a minor, intends to stay in NZ, but eventually returns to get further job training, reaches age of majority in Eng, but doesn’t have animus in relation to England, only there to upgrade training I: What is his domicile? D: England

R: situation of ambiguity, has animus in NZ but not factum -need simultaneous factum and animus -no intent to stay in England so no animus -so b/c confusion the domicile of origin kicks in meaning that he will revert to his domicile of dependence -this meant the W was domiciled in England as well and brought her petition there -prior to the age of majority the doctrine of domicile of dependence would have meant that H and W would have followed his fathers domicile in the jurisdiction of SA -because he is now an adult the domicile of dependence lifts **age of majority is determined by the lex fori

Davies v. Davies (1985 ABQB)) Background: jurisdiction for nullity is based on the domicile of the petitioner and there are different kinds of flaws in marriages -if the alleged flaw in the marriage would render the marriage void then the domicile of dependence does not attach, if it renders it voidable then the domicile of dependence does attach to the wife -incapacity to consummate is a flaw that renders the marriage voidable only **remember the determination of domicile is done under lex fori

F: H and W are domiciled in Ontario, married there -W leaves H and comes to AB and intends to remain there indefinitely -if we can look at her as independent then she would have a domicile of choice in AB -petitioning for divorce in AB, AB has a domicile of dependence, ON has no domicile of dependence -AB law says her domicile is ON b/c she is married subject to a flaw that would render the marriage voidable, this means domicile of dependence attaches

I: What is her domicile?

D: ON law applied to find the woman domiciled in AB

R: this is Q of intrinsic validity of marriage, this is governed by the anti-nuptual domiciles of the parties -this was ON, so ON law applies, therefore she is domiciled in AB **this is a case where the Court achieved what it wanted by shifting the characterization of the issue from voidable to intrinsic validity

What would have happened if AB law was applied? -would have told them to get a judgment for nullity in ON -then ON would have said according to our law you are domiciled in AB -this would have meant she would have not been able to get a petition for nullity in either jurisdiction -Prof thinks that the court ought to have made the determination that the CL rule was contrary to s. 15 of the Charter and that it was to be struck down -the difficulty with this is dolphin deliveries b/c charter does not apply to the wrt to private parties , Prof thinks it should in this kind of situation

C. Domicile of Choice—Acquisition

White v. Tennant (1888 US) F: family farm straddles border of P and WV, large mansion house on WV side and a smaller dwelling on WP side -preposites dies intestate, grew up in mansion house in WV, moves to another farm in WV -he and his wife decide they are going to move to dwelling house in P -lived entire life in WV, it is his domicile of origin and first one of choice -P has bad weather, horrible living quarters, so H and W move to the mansion in WV -W had caught typhoid fever, H takes care and also takes typhoid fever -only time ever spent in P is the one day in P

I: If you have intention to remain, how much presence in the jurisdiction is required to have the domicile of choice take effect? Did they acquire domicile of choice in P?

D: Pennsylvania

R: domicile significant b/c succession to movable property which is normally governed by the domicile of the person at the time of his death -if domicile in WV W gets everything, if in P then W gets ½ and siblings get ½ -court said when he crossed the border his intention to live in P changed his domicile of choice instantly -when they moved they had the intention of moving there permanently, so once they stepped into P then they had changed their domicile of choice -when they moved back for the night there was no intention of staying in WV -H had intended to fix up the house in P so that they could remain there

R: factum is factum only, having your body in the jurisdiction, once you step inside the jurisdiction if you have the requisite intent then you are domiciled there regardless of how long you remain

NOTE: always look at the context when we are trying to determine the domicile -courts tend not to be as guarded finding a domicile for divorce purposes -this has changed since earlier times

Jablonowski v. Jablonowski (ONHC 1972) F: trying to establish domicile in Ontario b/c he wants a divorce -born in Germany, domicile of origin there -left Germany and came as a legal immigrant to Canada in 1955, met Canadian woman -followed her to the US legally, had proper immigration -once he exited Canada it messed up his capacity to re-enter -comes back to Canada illegally, intending it to be his permanent home

I: Is it possible to get a domicile of choice in a place where you are an illegal alien?

D: he had animus and facturm wrt to Canada

R: 3 impediments to being found domiciled in Canada -wasn’t domiciled in Canada under the Canada Immigration Act -also was an illegal alien -was subject of deportation proceedings -but court found he was domiciled here notwithstanding the impediments -purposes of the immigration act doesn’t matter for the purposes in a private international law dispute (look at animus and factum only) -the deportation proceedings are relevant but only wrt the issue of animus -illegality of residence can be wrt to animus as well -more difficult to establish the intention to remain indefinitely if in the midst of legal proceedings which are trying to throw you out of the country -may effect animus but are not determinative, still look at intent R: we only look at common law rules and his state of mind when determining the domicile of an illegal immigrant, whether or not he is allowed to be there by domestic law is irrrelevant

Puttick v. A.G. (Eng 1979) F: statute allowed a declaration of the validity of marriage where the person is domiciled in England, Mrs P was a notorious Communist celebrity terrorist, member of gang in West Germany in 1970s, escaped prison and got a fake passport and moved to England, married and Englishman, wants to establish she is domiciled here *note the differences in this person and Jablonowski

I: Does she have an animus? Note that she has factum b/c she is there. Assuming she does have the animus can she be domiciled there as an illegal alien?

D: she did not have the proper animus

R: marriage characterized by casual, meaningless, and infrequent sex, doesn’t affect the validity of the marriage, but lessens the evidentiary weight that a more romantic marriage would have Problem: if she got married only to stay in England then how does she not have animus? Answer: she doesn’t want to stay in England per se, she wants to avoid the deportation -her animus is anywhere but Germany Prof thinks the point on the marriage is non-sensical -were the charges dropped, she would return there to keep being a terrorist -court goes on to say that you cannot be domiciled in a place where you are an illegal alien, relies on Dicey v. Morris -use a notion of a unilateral domicile -cannot have a domicile when your presence is not accepted in the country -“it has been held that domicile of choice cannot be acquired by illegal residence b/c cannot allow a person to acquire a domicile in defiance of the law which the court itself administers”

Are Jablonowski and Puttick reconcilable? -both quote the same case for a different proposition -you can be subject to deportation proceedings without being an illegal alien -decision has not been taken -but if you are an illegal alien you are one in that moment -also Puttick was the classic terrible illegal alien, whereas J was a technical violation -Puttick was a flagrant violation NOTE: the following case says the ratio of Puttnick is in regard to the animus, the illegal alien parts are obiter

Mark v. Mark (2005 ENGHL) F: parties both married in Nigeria under a polygamous marriage, moved to England, all kids born in England -H goes into exile in England b/c political situation, gets a 4 year visa -W relies on multiple visas which allow her to stay for 6 months at a time -H gets a permit to remain until Apr 30 1998 -both overstay the length of the visa, Fall 1998, political situation changes in Nigeria and H returns to stay there permanently -W remains in England, 1999 decides going to stay in England forever (acquires animus) -W applies for divorce in 2000 - says can hear divorce if petitioner domiciled in England -after filing of petition, gets immigration situation sorted out, granted leave to remain -H saying that it doesn’t matter b/c relevant time is when she filed the petition -H has also petitioned in Nigeria b/c W would have fewer rights if granted there

I: Is it possible to get a domicile of choice in a place where you are an illegal alien?

D: yes, she had both animus and factum, Puttick reasoning didn’t apply

R: court says the ratio of Puttick is that P did not have the requisite animus -however the illegal alien parts are obiter -cites Jablonowski and you simply look at the animus and factum -here she had the intent to stay and had a reasonable anticipation that the immigration difficulties would be ironed out (which they were) -also no public policy reason not to find her domiciled there -not trying to get a greater foothold in the country -wanted domicile purely for the reason to get a divorce **we must always look at the surrounding circumstances! -if trying to use court to abuse the laws then may have a very different outcome

“If…Then..Contingencies” 2 Basic Categories: 1. probable -if waiting for something else to happen then will not acquire SK domicile -ex. ABer in SK waiting for ailing relative to die will not acquire domicile in SK

2. pipedream -if I win the lottery I will move to a beach country.. -will not bar the acquisition of a domicile of choice -ex. ABer leaves for SK, wished to win money and move to a beach -will not block acquisition of SK domicile

Re Fuld (1968 English Court Probate Division) F: fled Germany from Nazis, came to Canada, went to law school, moves to England -maintained a residence in Frankfurt and was very proud of it -appeared there was a feud with mother in Germany, would move back once mother died -died in England in 1965

I: Where was he domiciled? Germany or England?

D: Germany, never acquired a domicile of choice in England

R: his exit from Germany was not voluntary, this is significant -means it makes it automatically less likely that he acquired a domicile of choice -exile means there is little choice in your actions -the contingency in his mind prevented him from acquiring a new domicile of choice in England, contingency can be found in the probable event category -it was a realizable contingency R: lengthy residence is not sufficient for the acquisition of a domicile of choice, if there is a realizable contingency it will prevent you from acquiring a domicile of choice

Gunn v. Gunn (1956 SKCA) F: petitioning for divorce, need to uncover H’s domicile, propositous born in MB, lives all life there, offered a promotion if moves to SK, moves to SK, living there for 4 or 5 years -admits that would leave for ON if got offered a better job I: Has he acquired a domicile of choice? D: yes R: the contingency was in the pipedream category -just because would go based on a great opportunity doesn’t preclude from having a domicile of choice -interprovincial changes in domicile has relaxed standard of proof of acquisition of a new domicile of choice -we are dealing with s. 92(13) so provincial jurisdiction most of the time -if we hold the propositous to a high standard of getting a new domicile of choice then the doctrine of reverter may kick in -this means that they will be domiciled in their home country b/c in a situation of ambiguity, so go to domicile of origin R: relaxed standard for acquiring domicile of choice in a new province, if move without a specific date on which you are leaving then prob have a new domicile of choice

IRC v. Bullock (1976 Eng CA) F: prop goods will be taxed if domiciled in England -born in NS, joined air force in England, married an English woman -intended to leave as soon as war over, changed mind after marriage -retired, spent all of his time trying to convince his wife to retire in NS -she doesn’t want to, buys house in England -B makes a will, says “If my wife were to die, I’d go back to NS” -court tends to view prop statements of domicile of little evidentiary weight -look at what they do not what they say I: Did he acquire a new domicile of choice in England? D: no R: this contingency was an impediment to his acquisition of a new domicile of choice in England, substantive certainty that his W would die and not a vague statement -found to be in the probable event category

Re Furse (1980 Eng Court of Chancery) F: US is domicile of origin, comes to Eng with parents as a child -later goes back to NY, marries an American -gets in army, moves to England, buys a farm, takes a life there with his wife -constant contemplation of “If my health failed, I couldn’t keep farming and would have to return to the US”, looked at properties there I: Domicile of choice in England? D: yes R: desire was to stay in England, nature of contingency was that I love my live as is, but if my health were to fail and I couldn’t live on my farm and enjoy life there then I may go back to the US, he did not want the contingency to happen R: if the contingency is a “pipe-nightmare” then this will not prevent the acquisition of a new domicile of choice

Osvath-Latcocksy v. Osvath-Latcocksy (SCC 1959) F: domicile in Hungary, becomes Canadian citizen, would return to Hungry if the Russians were out and Communism ended I: Domicile of choice in Canada? D: yes R: court found that this was in the same category as the pipedreams -it was unrealistic -it doesn’t block the acquisition of a domicile of choice in Canada -at the time it was not foreseeable that the Russians would get out of Hungary

Ramsay v. Liverpool Infirmary (1930 HL) F: Testator born and grew up in Scotland, remained there until 45 -left Scotland following his mother, brothers sisters to Liverpool -remains in Liverpool for 37 years, makes a holograph will -under Scots law a holographic will is valid, not valid under English law -succession to movable property governed by domicile of testator at time of death I: Is he domiciled in England or Scotland? D: remained domiciled in Scotland R: period of residence of 37 years of adulthood/old age -signs his will as a Glasgow man -viewed himself as a Scot -court says that he wasn’t very much of a self-starter, not integrated into a community -no clear evidence to make this his home -he had abandoned in factum but not in animus -domicile of origin remains in place R: cannot prove animus by pointing at a long period of residence, intent is everything

ATTN: the decision that he remained domiciled in Scotland was necessary to the conclusion that the propositus’ will was valid -clearly from the POV of the person drafting the will a holographic will was valid -CLEARLY: context is everything

Domicile of Choice—Abandonment

IRC v. Dutchess of Portland (1982 Eng Chancery Division) -1973 Eng abolished domicile of dependence for married women, but created a transition period so that a married woman’s domicile would be domicile of dependence until she abandoned it animus and factum

F: from QB, domicile of origin is QB, domicile of choice in QB, marries a Duke of Portland in England and moved to England, husbands domicile is England -maintains residence in QB the whole time -says its her intention to remain in QB -every year she would return to QB for a 10-week visit -she returns to QB for visit and argues that she had the intent to remain in QB, am back in QB and have now acquired a new domicile of choice in QB I: Did she acquire a new domicile of choice? D: no R: remember it is a tax man case -her presence in QB had to be a permanent type, not a holiday presence -had to be going there to remain indefinitely -had ceased to intend to reside but must also cease to reside there R: when you cross the border to acquire factum we need to consider if there is an intent to remain there indefinitely NOTE: this differs from White v. Tennant b/c when they crossed the border the intent was to remain there indefinitely, here it was just to go for a visit

CHAPTER 3—DOMESTIC RELATIONS 4 Aspects -divorce -legitimacy -custody -marriage -formal and essential validity -recognition of foreign marriages

Essential validity -governed by domicile of parties prior to the marriage taking place -ante-nuptual domiciles -who can marry whom -capacity to marry -degrees of affinity and consanguinity -incapacity to consummate -same sex marriage falls in here -CA 1867, places marriage and divorce under federal jurisdiction (this means essential validity governed by federal law)

Formality -application for nullity -lex loci celebrationas used to govern formal validity -the “how” it is that you get married -ex. who has the power to marry pl, what do parties have to say, what forms need to be filled out, vaccinations, blood tests, etc -parental consent -CA 1867, places the solemnization of marriage within the province under provincial authority (this means everything to do with formal validity)

Alberta Marriage Act -marriage defined as one man and one woman -but the rest of the act is directed toward the formal validity of marriage -cannot get married under the influence of alcohol or drugs -whether this would invalidate marriage is unknown -s. 2 -this is a blatantly unconstitutional piece of legislation -invocation of the notwithstanding clause was political, province doesn’t have jurisdiction over whom can marry Formal Validity Berthiaume v. Destous (1930 PC) F: meet in France, married in France, both domiciled in QB, married in France, live in Paris until 1926, H brings another woman home to live with him and his wife as his mistress, W initiated divorce proceedings in Paris which were unsuccessful, returns to QB to try and divorce him there, H argues that French law needed to show a civil and religious certificate, W couldn’t produce b/c no civil certificate existed I: Were they married? Is the marriage valid all over the world? D: no, b/c didn’t have the requisite certificates R: court oversteps the bounds of the rule -says that a marriage that is valid in the lex loci is valid anywhere in the world -if invalid in lex loci is invalid everywhere else -Acorn thinks it should be amended to say “formally valid”….

Apt v. Apt (1947 Eng CA) F: W domicile is England, H is Argentina -W exercises power of attorney naming another as her representative -rep goes to Argentina and enters into a marriage for her by proxy -Argentina law allows this, and it is a valid marriage -W’s evidence is that she intended to marry on that basis and had not revoked power of attorney -her issue was that she wanted to live with H but he wants nothing to do with her -she wants a nullity b/c he is being a jerk, H is nowhere to be found I: Was the marriage valid? D: yes R: the issue of marriage by proxy is a formality -this is govered by the lexi loci celebrationas -it is ok to marry like that in Argentina -so she is married -she was trying to argue that this is a matter of essential validity -if you are not there then it should be governed by the ante-nuptial domicile -court rejected this R: marriage by proxy is a Q of formal validity and is governed by the lex loci celebrationas

Hassan v. Hassan (2006 ABQB) F: Islamic law marriage performed in Carstairs -done over the phone, so very difficult to say if it was performed there, nevertheless the officiator was in Carstairs -H is residing in Saudi, W is residing in Canada -no AB license, woman not even in the room at the time, she is upstairs -they have not complied with any formalities -H travels to AB, consummates marriage -cant get marriage letter from AB -go to Pakistan and get a certificate, reg marriage that took place in AB -parties return to Canada and live there until 2000 -H files for divorce and wants matrimonial property -W says forget it, we were never married -W has also commenced divorce proceedings in Pakistan I: Is the marriage valid under AB law? D: no R: nothing under AB law is complied with -court is disinclined to find the marriage invalid, b/c they don’t like to see W escaping property obligations -note your intention wrt to marriage is not important -the state sets the intent more than a regular contract -rule is the lex loci celebrationas, which says its invalid -so there is no marriage here or anywhere

NOTE: H could bring an action based on unjust enrichment and constructive trust

**parental consent is a matter of formal validity and is governed by the lex loci celebrationas -Ogden v. Ogden -AB requires it for ages 16-18

Essential Validity Brook v. Brook (1891 HL) -act passed in 1857 changed English law to allow a man to marry his deceased wife’s sister, remember women couldn’t live on their own -so before the law, second sister would be living with sister and H, sister one dies, sister 2 would be living in sin, so was kicked out

F: domiciled in England, married in Denmark 1850 b/c you are allowed to marry a deceased wife’s sister there, return to England right away -set up home, Act passed in 1857, so by the time the case gets to court the marriage would have been valid I: Is the marriage valid? D: no R: court says the marriage is not valid b/c this is a matter of essential validity -that means it is governed by the parties ante-nuptual domicile -so whether they can marry is based on English law, whom can marry whom -at the time they were married they were not allowed to be under English law

**Prof thinks that today we would look at the law at the time that the court is hearing the case

Frew v. Reed (BCSC 1969) F: boy and girl in BC, in BC need parental consent if under the age of 18, did not have parental consent, b/c they were first cousins -go to Washington and get married there -essentially fleeing the jurisdiction to escape the regulations about parental consent -Washington doesn’t allow first cousins to marry I: Is the marriage valid? D: yes R: consent to marriage is a matter of formal validity as per Ogden v. Ogden -so consider if marriage is formally valid, look to lex loci celebrationas -in Washington don’t need consent -then we ask if it has essential validity, governed by anti-nuptual domiciles -those are in BC, which allows for marriage of first cousins

Prof: this is an example of a false conflict b/c it is a result that wouldn’t have occurred within the ambit of either jurisdiction -best approach is to look at the highest level -Prof thinks parental consent really should be viewed as essential validity -thinks Ogden got it wrong, improper characterization -NOTE: Ogden has never been overruled, it is a very old case, and this is a pretty settled point of law that consent is formal validity

Canada v. Narwal (1990 FCA) F: Canada immigration is trying to deny a marriage that parties want to confirm -W in India, marries Narwal 1, come to Canada, make home there, divorce -W establishes domicile of choice in Canada, decides to marry ex Hs brother Narwal 2 -N2 domiciled in India -couple met in England and married there -N2 goes back to India, she returns to Canada, child born in Canada, trying to sponsor him to come to Canada as her H -Canada is denying the marriage b/c Indian law prohibits this type of marriage, but Canadian law allows it I: Is this a valid marriage? How do we determine the essential validity when the ante- nuptial domiciles of the parties are not the same? D: look at rule in Sottomeyer and expand it R: had not set up matrimonial home, neither has animus or factum in England -intention and desire to be in Canada for both -court says that there is no reason other than the Canadians blocking his entry -would set up a home if he was able to enter into Canada -so we will call the matrimonial domicile Canada R: when conflict b/t 2 ante-nuptual domiciles if one’s domicile and matrimonial domicile would allow the marriage, because Hs domicile doesn’t allow the marriage it will not tip the balance to disallow

Sattomayer v. DeBarros -conflict b/t the 2 ante-nuptual domiciles -basic rule that: where the lex loci celebtrionas, lex fori, matrimonial domicile, and the domicile of at least one of the parties are all the same place, and the marriage is valid there, then the court will find the marriage to be valid

NOTE: in Narwal we didn’t have all the above factors -lacked celebrationas, but Eng would have allowed the marriage -met all the other factors including the “deemed” matrimonial domicile

RESULT: court is developing a more flexible approach, asking where the centre of gravity of the marriage is, look where the marriage has the most connection to

Wilkinson v. Kitzinger (2006 Eng HC) F: parties both women, professors in England -come to BC, are married there in 2003, return to England -although couldn’t get married in England, could have an institution of civil partnership I: Is the marriage valid? D: no R: matter of essential validity, governed by the ante-nuptual domiciles -matrimonial home in England -do not have the capacity to marry there -court did find that the marriage in BC resulted in having a civil partnership under England’s Civil Partnerships Act

Prof: What would have happened if the Canadian courts were looking at this marriage? -everything was English except the lex celebrationas -our conflict of law rules are the same as the English ones -but if want to say that the marriage is valid maybe argue (facts changed) -get one to live in BC for a year -bring a Charter application under s. 15 that it is discrimination -perhaps the court in enforcing the English law is violating the Charter -this would require getting over Dolphin Delivery

Recognition of Foreign Marriages: -has to do with the situation in which the marriage passes both tests of intrinsic and formal validity, but we may have another kind of issue with it -maybe polygamous, or other public policy issues -don’t get to this issue until it passes the validity test

Hyde v. Hyde (1866 English Divorce Court) F: H is allowed to take more than one W, parties move to England, domiciled there -W had been given a divorce under Utah law, H seeking divorce under English law -court needs to acknowledge a marriage before it can give a divorce -in this case the marriage was potentially polygamous b/c had not taken 2 W’s yet I: Valid marriage? Recognized? D: it is valid but is not recognized R: marriage complied with all formal requirements of marriage in Utah -it was also essentially valid, both domiciled in Utah which allowed polygamous marriages -so on the initial two choice of law rules there is nothing wrong, this is not the end -says that polygamous is not the same legal creature as English defn of marriage -this contract is a direct offence of our notion of marriage, so cant call it marriage

R: polygamous marriage is not the same kind of contract as an English marriage, so it cannot be classified as marriage under English law therefore cannot grant a divorce

**Canada’s def’n of marriage now includes same sex marriages, but we still have the Hyde concept of 2 people to the exclusion of others for life** -that is the legal construct we take, everything except man/woman

Cheni v. Cheni (1965 English Divorce Court) F: marriage b/t uncle and niece in Egypt, ante-nuptual domiciles there, as well as matrimonial domiciles, Egypt allows this type of marriage, move to England, establish a domicile of choice there, niece wants out of the marriage I: Is this valid? Recognized? D: valid and recognized R: satisfies the Hyde criteria, but what about the public policy -this marriage not allowed in England, so niece is trying to say this is so abhorrent that it should not be recognized -court says that the law should not be too judgmental if it is a civilized country that allows degrees of consanguinity -should look at good manners, common sense, and reasonable tolerance R: if the Hyde criteria are satisfied and a civilized society recognizes the marriage then we should as well

Transmutation: (from Ali v. Ali) 1. potentially polygamous marriage (China or Utah) 2. a move to AB 3. acquired domicile of choice in AB 4. no attempt by H to take further Ws THEN….the marriage has transmuted into monogamous

Re Quon (1969 ABSC) F: man domiciled and married in China in 1942 (concubines still contemplated) -concubines still have some rts to property -his marriage is formally and essentially valid -comes to AB, gets a domicile of choice here, gets another wife as well -doesn’t tell both Ws about each other, he dies, they discover one another -Chinese W applying under Dependents Relief Act to get a share in the estate I: Who is the W to receive disposition of property? Can we recognize Chinese marriage? D: recognize the Chinese marriage based on Ali v. Ali R: form of Chinese marriage anticipates that which would be a matrimonial offence under Canadian law (concubines obtain a legal status) -court says that when he came to AB and married the new W, the Chinese marriage transmuted into a monogamous marriage -NOTE: completely contrary to the intention of Ali b/c Ali is based on the original marriage staying together, there is not W2

Prof: court did this b/c bequests made to W2 in the will, the W1 had nothing left in the will, H was maintaining 2 families by going back and forth

B. Divorce

in divorce, we are only ever concerned with questions of jurisdiction and recognition b/c we always apply our own law (question 2) -membership in the community is usually determinative -should be getting divorce from place where your marriage is grounded -ex. trying to avoid the quickie Nevada divorce -community has the moral authority to divorce you…other places dont

Jurisdiction: -in deciding whether to recognize a foreign divorce we look to the circumstances under which the foreign court took jurisdiction -prior to 1968 Divorce Act -domicile of the petitioner was determinative of jurisdiction -b/c domicile of dependence then the only court that had jurisdiction was the place where the husband was domiciled -see Alberta v. Cook -after the invocation of the Divorce Act (July 1 1968) -does away with domicile of dependence for the purposes of jurisdiction of divorce -court would take jurisdiction when all 3 met: -petitioner domiciled in province -petitioner OR the respondent was an ordinary resident for 1 year immediately preceding the filing of the petition -petitioner OR the respondent was actually resident for 10 months of the preceding year -after the 1985 Divorce Act (July 1 1986) -completely does away with domicile as a basis of determining jurisdiction -petitioner OR the respondent must be ordinarily resident in province for 1 year preceding the petition -requirement of actual residence no longer exists

Wrixton v. Wrixton (1968 Act) (1982 ABQB) F: petitioner born in MB in 1957, immediately moves to AB in 1958, lives life in AB except for 1.5 years in Hawaii -returns from Hawaii on May 1, 1982, files for divorce on July 22, 1982 (2.5 months after returning home) I: Is she ordinarily resident for preceding year? D: no, court didn’t have jurisdiction over the divorce R: presence in Hawaii was an extended vacation -intending to come back to AB all along, only there for a break -court also said that had a fixed address and was gainfully employed while there -this weighed against her -she wasn’t actually resident there anyway, so it wouldn’t matter, but the discussion on ordinary resident important R: restrictive reading of ordinary residence in 1968 Act -it may not be good authority for the same term under the 1985 Act

Engle v. Carswell (1986 Act) (1992 NWTSC) F: H files petition in NWT, W contested on the basis that the court does not have jurisdiction, argues he is not ordinary resident here, but is in California -H has a retirement place in CA and spends most of his time there I: Who has the onus of proving jurisdiction? (an aside) -court says that where a person has been served within the boundaries of that province then jurisdiction is presumed -cannot use precedents drawn from civil litigation to apply to divorce -fact that def is in the jurisdiction means nothing when it comes to divorce -court holds that the petitioner has the onus of proving the jurisdiction -court of its own action can also assert or question the jurisdiction b/c taking jurisdiction is always discretionary for the court

I: Is he ordinarily resident here? R: normally, regularly, customarily resident there…look at synonyms? -element of permanence or is it a temporary connection -not concerned with length of stay, rather concerned with your presence -the meaning of ordinary residence is not the same thing as under the past Act -once Parliament removed the requirement of actual residence, this shows that we are to reinterpret ordinary residence as a more fluid concept -factors in favour of residence in NWT -he is a very mobile person, how to treat these pl, are they able to divorce anywhere? -look at nature of ties to the community, is he a member? -discuss that he is a local hero, famous bush pilot, owns home in NWT, rents the retirement place in CA, continues to have assets in NWT, files tax return in NWT -factors against residence in NWT -spends more time in CA than NWT R: spending more time is not determinative of ordinarily resident , it is how we interpret that fact, look at authenticity and enduringness of connection with community

Alexiou v. Alexiou (1985 Act) (1996 ABQB) F: H and W are Greek and married in Greece, lived most of their lives there -1990 go to Germany, spend 5 years there, come to Canada in 1995 -H gets a job as a Priest in church and applies for landed immigrant status -status formalized in 1996, W goes back and forth to Greece -H later suspended by church and loses job -W has employment status in Greece, needed to keep returning to keep up her status there -had a home in Greece -H brings action for divorce in Canada, also maintenance and custody issues -at time of hearing case, both unemployed and W intending to return to Greece I: Were they ordinarily resident? Is it appropriate for Canada to hear? D: ordinarily resident but Greek court better to hear R: had a home, kids, employment, etc in Canada -prob weren’t domiciled there but were ordinarily resident for 1 year preceding petition -so court CAN take jurisdiction, but this is not the entire ball game -discretionary nature of court to take jurisdiction (CAN may not mean WILL) -W had also petitioned in Greece and Greece courts were trying to take jurisdiction -court also considers the children’s custody -they are on the way back to Greece, evidence of best custodial parent in Greece -would be difficult for Canada to decide R: can be ordinarily resident in an area but the court may still refuse to hear the case if they are a forum non conveniens , court retains a residual discretion to take jurisdiction or not

Forum non conveniens -United Oilseed Products v. RBC -need to examine in all cirs of the case if this is the appropriate place to hear the cause of action -best suited forum to serve the ends of justice? -another forum that is more appropriate? -court retains own independent status in determining if appropriate etc

Difference b/t jurisdiction in divorce vs. other litigation -ord civil litigation we ask can we serve the def w/I the jurisdiction? -don’t care if member of the community -only care if they are here -wrt to divorce none of the above applies -only need to know if a member of the community

Choice of Law -once the AB court takes jurisdiction then the Divorce Act applies -there is no other issue -no one will apply a divorce act that is different than their own -don’t do a procedure/substance distinction here -this distinction assumes that the rule we are applying directs us to another law -here, we are assuming that we’ve already taken jurisdiction -there is no lex causi that is different -we always apply the forum law

Recognition -s. 22 of the Divorce Act talks about recognition of foreign divorces -based on the idea of reciprocity -concerned with circumstances with which court considered -sufficient connection to community, membership in community -s. 22(1) if either spouse ordinarily resident in the country for 1 year preceding the divorce then we will recognize it -legislation ties the date for recognition to the date that the law changed in Canada -we do not recognize on this basis before July 1 1986 -s. 22(2) divorce granted on the basis of the domicile of the wife in that country shall be recognized -will recognize a foreign divorce that was granted on the basis of wife’s independent domicile, so getting rid of domicile of dependence for women -there is still the potential that a divorce granted June 30, 1968 on the basis of the wife’s independent domicile cannot be recognized in Canada -still Charter questions about this NOTE: W does NOT have to be the petitioner for this section to apply! H can petition for divorce in a jurisdiction where W is independently domiciled -s. 22(3) -we still have all the common law grounds for recognizing divorce -as a result we need to be aware of all the common law principles for recognizing divorce -so we need include this section in analysis of whether we can recognize if 22(1) and (2) do not allow it

Common Law Grounds for Divorce: -will recognize if granted by courts of husband’s domicile ( LeMesurier) -will recognize a divorce if it is recognized by the courts of the place where the husband is domiciled ( Armitage ) -“full faith and credit clause” which is a US concept -if we would have taken jurisdiction under similar circumstances ( Travers v. Holley ) -we are concerned with the factual circumstances under which the foreign court took jurisdiction and not the legal basis on which they took jurisdiction (Robinson-Scott ) -if there is a real and substantial connection between the parties and the jurisdiction in which the petition was granted ( Indyka )

Schwebel v. Unger (1963 ONCA) -tricky situation, pay attention to the fact that this is an example of the court stick handling away the problem by recharacterization of the issue which is dodgy but gives a result they want

F: domicile at the time of marriage was Hungary, after war were refugees and were going from refugee camp to another, at one in Italy and obtained a “gett” from a Rabbinical Court -went to Israel and each independently established a domicile of choice in Israel -obtained a certificate from Israel acknowledging the divorce in Italy -W goes to Toronto, gets married while still domiciled in Israel -Canadian H trying to say she is not his W and owes her nothing, never married b/c she was never divorced -claims the gett divorce cannot be recognized in Canada I: Will Canada recognize the divorce? D: yes, recharacterize the issue as petition for nullity R: H was domiciled in Hungary which did not grant Rabbinical divorces -it is not recognized by the courts of Rabbinical -Canada would not have taken jurisdiction in similar circumstances -but the law of Israel does recognize the divorce, Rabbinical divorces recognized from anywhere in the world under Israel law -court shifted the characterization of the issue as a petition for nullity so the issue would be capacity to marry -governed by ante-nuptual domicile which is Israel -court said most central issue is the intrinsic validity -was able to marry based upon ante-nuptual domicile

*case often cited for proposition that a divorce can be recognized if it is recognized by the law of the place where the parties are domiciled immediately after the granting of the divorce -this is not the ratio of the case but may work

Indyka v. Indyka (Eng HL 1967) F: H/W domiciled in Czech, matrimonial home is there, W never leaves there -not deserted by her H, but throws him out, he goes to England, gets domicile of choice -W petitions for divorce in Czech in 1949, divorce granted, 3 months later English law changed to allow court to take jurisdiction based on Ws domicile of previous 3 years -H has 2 nd marriage in 1959, and 1969 case heard I: Is 2 nd marriage still valid or was his first marriage still in tact? D: first marriage valid, divorce was proper and will be recognized R: divorce not granted by Hs domicile, at the time English courts wouldn’t have recognized the H’s domicile, and English court wouldn’t have taken jurisdiction under the same circumstances at the time the divorce was granted -no basis at common law to recognize the initial divorce -here everything has to do with Czech -there is a very very real and substantial connection b/c the only English fact is that he had obtained a domicile in England

R: will recognize a divorce if there is a real and substantial connection between the parties and the courts granting the divorce

NOTE: the time element was relevant to reciprocity in this case -1959 is when further rights were purportedly vested in K of 2 nd marriage -so look at policy at 1959, at this point the law had shifted and we would have taken jurisdiction

Kish v. The Director of Vital Statistics (1973 ABCA under 1968 Act) F: context in application for marriage license -needed to establish that H’s first divorce is valid -H married in Hungary in 1928, had a child 1930, H left Hungary and domicile of choice in AB -citizen in 1955 and in 1970 petitioned for divorce in Hungary -W1 is still in Hungary and has been there all along I: Can we recognize this divorce? D: yes, real and substantial connection R: W independently domiciled in Hungary and we now view them as having independent domiciles determined as if she was an unmarried woman -court mistakenly thought that the W had to be the petitioner for s. 22(2) to apply -found that there was enough of a real and substantial connection -no sense that the parties were trying to evade -Hungarians rules were also stricter -W had a better chance to defend in Hungary as well R: either party can have a real and substantial connection to the jurisdiction if we are to recognize the divorce, doesn’t have to be the W!

Bate v. Bate (1978 ONHC) F: petitioner married in 1950 to H1, ante-domiciles of ON, entire marriage in ON, in 1957, Mrs. B goes to NV stays in a hotel room with a friend gets a divorce, returns to Canada, 1958 marries H2 and gets a legitimate divorce from H2 in Sweden, marries H3 in 1969 I: Is her marriage to H3 valid? Can we recognize her 1957 divorce from H1? D: no, precluded by s. 22 and also in the common law R: if we do not recognize it then she isn’t married to H3 -effect of presumption of validity of a marriage and a divorce assumes that both should be acknowledged as valid -court says that we have these presumptions -this means that we have a tactical burden implication -having introduced that piece of paper into evidence the person who is contesting the validity/recognizability has to do something -if do nothing then the marriage/divorce is presumed valid -and a persuasive burden -this also puts the persuasive burden on the person challenging the divorce -if at the end of the day it is a tie (balance of probabilities is tied) then the trier of fact must conclude that the marriage is recognized as valid -divorce could not be recognized under s. 6(2) of the Divorce Act -she is claiming that she was domiciled in NV (intended to spend life there) -court didn’t believe her, even if it did it didn’t matter b/c the section is similar to s. 22 and is explicitly prospective only -her divorce was granted in 1957 so even if she was domiciled there the court cannot recognize a divorce on the basis of the Ws domicile until after 1968 as stated in the legislation -court found that none of the common law grounds work to recognize the divorce -Indycka is the only hope she has with a “real and substantial connection” -no real presence or membership in the community

Keresztessy v. Keresztessy (1976 ONHC) F: W1 is alleging they are still married, parties married in Hungary in 1944, come to Canada in 1956, citizens in 1963, separated in 1972 -1974 H brings divorce proceedings in Hungary from Ontario, granted in Hungary -ON gov grants a marriage license for W2 on basis of Hungarian divorce -letter from lawyer saying the divorce is ok b/c parties were domiciled in Hungary at the time of the divorce, argue it should be recognized on basis of LeMessurier I: Is he married to W2 or still married to W1? D: court refused to recognize the divorce R: under the 1968 Act and can recognize if W is domiciled there, but she was not -opinion letter was not conclusive, had not been in Hungary for years -acquired a domicile of choice in Canada -wasn’t an allegation of fraud, but were curious why the petition in Hungary didn’t mention that the parties were Canadian citizens -weren’t apprising the Hungarian court of the full situation, probably wouldn’t have taken jurisdiction if they had known -also wasn’t clear that W had been given full notice of the proceedings R: the relevant time period for assessing a real and substantial connection is when the petition is made

Re Edwards v. Edwards Estate (1985 SKCA) F: married in 1957 in SK, W is 23 years younger than H -value of estate about 68K, dies intestate, she is making an application under Dependents Relief Act to be given the entire estate -daughter shows up and wants some money, says not his W -arguing that the divorce from W2 cannot be recognized -W2 domiciled in California, California court took jurisdiction in 1953 on basis of her residence, accepts it because she is resident there, H was not resident nor domiciled there -he was domiciled in SK

Time Line: (W1 had died and is not in the picture) 1950 – marriage to W2 1953—divorce in California 1957—marriage to W3 1968—Divorce Act (post July 1 can have on basis of Ws domicile) 1969—Indycka (real and substantial connection common law test)

I: Can the divorce be recognized? D: not on the Divorce Act, but yes under Indycka R: cannot be recognized on Divorce Act under s. -LeMesurier n/a b/c not granted on basis of Hs domicile -Travers reciprocity principle would not work b/c we only looked at Hs domicile -Indycka was good b/c there was a real and substantial connection -H was also born in California, W was resident there at the time of the petition -Hs domicile of origin was California, also had a lot of family members there -so there is a real and substantial connection, but the daughter is still saying that Indycka didn’t happen until 1969 (so is time barred like the Divorce Act) -court says there is no such thing as a change/overruling in the common law -the judge ‘discovers’ the common law, so it exists in all its “pristine perfect beauty” from time immemorial and is to be discovered by the judges -doesn’t matter when Indycka was decided, existed but wasn’t discovered R: we can apply the real and substantial connection test retroactively to recognize a foreign divorce that was granted on the basis of a real and substantial connection to the jurisdiction prior to the decision in Indycka

NOTE: this results softens the harsh result that the Divorce Act produces -so now, in most cases where the W is domiciled where the divorce was granted, the court will most likely be able to find a real and substantial connection and recognize the divorce under Indycka whenever it was granted

Fraud and Recognition of Divorce Powell v. Cockburn -where there is fraud going to jurisdiction the court will not recognize the divorce -ex. when the parties duped the court about jurisdiction -but we do not care about fraud going to grounds or anything else -court will also be concerned if the opposing party did not get notice of the proceedings

Custody: -the main issue is where one parents removes the child from the jurisdiction where it is habitually resident and is attempting to escape the application of a custody order in another jurisdiction

1. Can we take jurisdiction? 2. Always apply our own law 3. Do we recognize/enforce foreign custody orders? -this is where the bulk of trouble occurs NOTE: most provinces have enacted the Uniform Custody and Jurisdiction Enforcement Act that sets out 3 basis for jurisdiction in custody cases 1. 2. Even if child not habitually resident in the jurisdiction but conditions met the court can take jurisdiction: a. child present in juris b. substantial evidence of child’s best interest in juris c. no application is pending in the juris where the child is habitually resident d. no extra-provincial order of custody or access has been recognized in the province e. real and substantial connection with the province f. it is appropriate 3. The child would suffer serious harm if the court does not take jurisdiction

**AB, MB, QB, NS have not signed but 6 provinces and 2 territories have SO to take jurisdiction look at common law grounds (notion of parens patriae) -ordinary residence of the child -domicile -residence of person in control of the child -presence of the child -agreement of the parties

IN ALBERTA -there are 2 legislative schemes that are superimposed on each other w/o any logical attempt to reconcile the inconsistencies b/t the two -The Hague Convention …implemented by International Child Abduction Act -s. 7 of AB Intnl Abduction Act makes the Hague Convention paramount -where there is a conflict the Hague will govern -The Extra-Provincial Enforcement of Custody Orders Act

The Hague Convention on the Civil Aspects of International Child Abduction Objectives

1. to secure the prompt return of any child wrongfully removed or contained in any contracting state and to ensure that the rights of custody and access are effectively respected in contracting states -sending pl back to where they supposedly belong

Convention Defines Wrongful Removal or Retention (Article 3) 3(a) breach of rights of custody -not rights of access, cannot get an order returning the child if breach access right 3(b) rights must be exercised -at the time of the removal or retention in order for it to be wrongful 3(c) potential sources of rights -may arise by operation of law -parents have a prima facie right of custody -by agreement of the parties -by administrative or judicial decision

Rights of Custody (Article 5) -include rts relating to the care of the person of the child -also in particular the right to determine the child’s place of residence -having care and control of the person of the child is neither necessary or sufficient for custody rts under the convention -sometimes an access parent will have rights of custody within the meaning of the convention and sometimes it won’t -just because you are the access parent doesn’t preclude you from bringing an application -once the court makes a finding of wrongful removal they MUST send the child back to the place of habitual residence (this is basically all that they do) -court is not empowered to make a determination of the best interests of the child -if they find a wrongful removal they have to send it back best interests or not

5 Exceptions When Do Not Have to Order Return of the Child 1. Article 12a -where time b/t wrongful removal and the bringing of the application is more than one year then there shall be a return unless it is demonstrated that the child is settled in the new environment 2. Article 13a -if the custody rights were not being exercised by the custodial parent or if the parent with rights of custody has consented to the removal/retention 3. Article 13b -court doesn’t have to order the return if there is a grave risk of harm to the child -physical or psychological harm or otherwise place in an intolerable situation 4. Article 13b -if the child is mature enough to have his or her own independent opinion about where they would like to be and they do not want to return -remember the convention doesn’t apply to children over 16 5. Article 20 -if it is in breach of fundamental principles relating to human rights -what does this mean over and above the harm exceptions?

NOTE: Alberta does not accept Article 25 of the Convention about requiring the requested state to provide legal aid as though they were a resident of the province

Article 16 –the court hearing does not have the jurisdiction to decide on the merits of the custody dispute unless they conclude that there is no obligation to return the child under the convention -the threshold under “grave risk/intolerable situation” is a much higher standard than best interests

The Extra-Provincial Enforcement of Custody Orders Act -s. 2 enforce custody order of another jurisdiction UNLESS no real/substantial connection with the jurisdiction that granted order -s. 3 allows the Court to reexamine the matter on the merits in the situation where there is no longer a real and substantial connection to the jurisdiction granting the order and the child now has a real and substantial connection to Alberta -interests of the opposing parties are not dominant -in varying the order and putting its own in place the court must consider the same kinds of concerns it would look to if it were making a de novo order -also supposed to treat custody as a primary importance and access/visitation as secondary importance -s. 4 court can vary if failure to vary an order would result to serious harm, even if there is/was a real and substantial connection to the jurisdiction that varied the order

Thompson v. Thompson (1994 SCC) F: goes to Scotland, meets guy, married, have a child, lived with Hs parents in Scotland and then split up, custody fight ensues in Scotland -Scots find W is more appropriate custodial parent, has more drive/ambition -gives W interim order for custody, gives access to H, include a non-removal order saying that can’t be moved out of Scotland pending the final determination of custody issues by the Court -breakdown in communication b/t lawyer and W, W goes to Canada -H comes to MB and brings an application for return of the child to Scotland I: Meaning of wrongful removal? Was there a wrongful removal? Grave risk of harm? Does the court have the power to put conditions on the order if one is granted to send him back? Relationship b/t intnl and domestic laws? D: yes there is wrongful removal, no grave risk of harm, conditions can be placed R: remember the court is not seized by the issue of the best interests of the child (1) Wrongful removal -3 possible interpretations of the notion of removal or retention a) her rts of custody are limited by the access order and the non removal order -in violation of her own rights, court rejected this b) rts of custody are determined by the Scots court and that is the institution that has the right to determine the childs place of residence -so court has rights of custody and she has breached these -rejected this interpretation, too broad -so means would never be able to remove a child b/c the court would always have the rt to determine the child’s place of residence so any removal would be a wrongful removal in violation of the court’s notional rt of custody c) non-removal order that was in interim order created and preserved in the court a rt to determine where the child would live, highlighting that court had continued rt to determine where child would live -interim order of custody preserves courts rt to determine residence and the court has custody and she is in violation of the court’s rights of custody NOTE: this case is not in line with other countries -others have held that when there is an interim any removal of a child in violation of that order is a wrongful removal

Is there wrongful removal in this case? -no mens rea requirement -doesn’t matter what you understand your rights to be -removal is removal, irrespective of mother not knowing she was in violation

Can we say that there should be an exception made b/c of grave risk of harm? -could not be brought within the risk of grave harm -there is no intensifier that is modifying “physical or psychological harm” -the adjective is attached to risk -need to show an intolerable situation, not just some harm

Can we put conditions on the return? -it was possible to order remedies which tried to prevent trauma to the child upon the return to the place of habitual residence

NOTE: court expressed the view that the two legislative regimes should be kept separate - they looked between the relationship between the schemes. - Mrs. Thompsons counsel should have made a counter application under the act saying that there was now a real and substantial connection with MB - But Court argues that both regimes should be kept completely separate – you make an election under one or the other.

Knight v. Knight (1998 ABQB, 1999 ABCA) F: dealing with both pieces of legislation, married in the US, son in Oregon in 1991, moved to Alabama when the kid was 2, separated in Alabama when he was 4, W returned to AB with the child, H then came to AB to visit the child, applies for custody order in Alabama, grants it to H, grants a number of yearly access visits to the mom, when boy 6 goes to AB for spring visit, H goes to South Dakota in process of moving to Texas, asks W to keep the boy until the end of the summer visit, W says fine but then brings an application in AB for a custody order, H applies to strike SOC and counters with an application for return of the child under the Hague Convention I: Is there a wrongful removal/retention under the convention? D: no, b/c she is still within the time of the agreed access visit R: need to be within the provisions of the Convention to get an order -used a strict letter law approach, was still within her time -dealing with Ws application, court found that situation met the test for the court to be able to vary the custody order -was a real and substantial connection to Alabama, but no longer b/c no one lives there anymore R: if an application to have a child returned for wrongful removal is made before the right to visitation is expired then there is no wrongful retention

-AB court says it can vary the order but say that the father is the appropriate custodial parents and that the child should be returned at the end of the access visit as usual -also say that should come back to AB for the final determination (above was an interim order) Acorn: this case puts an additional burden on the parties -court doesn’t vary the Alabama order to a significant degree, but still wants to decide it again at a later time NOTE: this case was affirmed on appeal by the ABCA -real and substantial connection was a question of fact that cannot be overturned on appeal Acorn thinks dissent is more appropriate: -the presence in the access jurisdiction as a real and substantial connection will never give an authoritative court -can always flip back and forth b/t custodial court and access court

KJS v. MT (1999 NS Fam Ct) F: H/W living together in Nunavut, H left for NS and was not aware that W was pregnant, child later born in Nunavut, H and child don’t interact much until the child is 7 -H/W agree that child to go to NS for one year, W stipulates she is not giving up rts of custody and not agreeing to any period in excess of the year period -child goes to NS and H applies for a custody order -this is a situation where there is no pre-existing custody order in place I: Can the NS court take jurisdiction? D: yes R: NS and AB have not enacted the legislation so we are basing the decision on common law principles -common law grounds for taking jurisdiction: (derivative of notion of parens patriae) -ordinary residence of the child -domicile -residence of person in control of the child -presence of the child -agreement of the parties -court should also be considering forum conveniens/non conveniens -court looks at pros and cons, as it does this we see a ‘best interest’ of the child analysis bubbling up (which we aren’t supposed to consider according to Acorn because it is not before the court yet) -better environment in NS, in school in NS, -finds that mothers common law partner and uncle abused the child, also substance abuse in the home -no existing custody in the mothers favour and the child in NS with mothers consent -against taking jurisdiction was that Nunavut was ordinary resident, first language was Innu, all witnesses only speak Innu and no translation services in NS so no one can testify in NS -overriding point is that the child is doing well in NS so court took jurisdiction

Matrimonial Property -provincial matrimonial property statues vary greatly -we have an overlay of the common law on the legislation -ask to what extent the legislation has overruled or supplanted the common law

3 CL Basis for Taking Jurisdiction: 1. presence of def in the jurisdiction -this is generally the case in most civil litigation 2. immovable property situated in the jurisdiction

3. movable matrimonial property = r/s connection of a party to the jurisdiction

Choice of Law -movable matrimonial property = matrimonial domicile -domicile where the parties set up and intend to make their matrimonial home and actually do make their matrimonial home -immovables = lex situs unless there is a K -whether there is a K governed by the matrimonial domicile

Enforcement -we enforce a judgment relating to matrimonial property so long as there was a real and substantial connection b/t parties and court granting the judgment

Alberta Matrimonial Property Act -4 crics where you can apply to court for an order dividing matrimonial property 1. habitual residence for both spouses is AB -whether there live together or not 2. last joint habitual residence was AB 3. habitual residence of both spouses was AB at the time of marriage 4. matrimonial property is related to a divorce proceeding being brought before the AB court -choice of law -AB act has no choice of law provision -will apply the AB statute when they are going to hear the application -enforcement -s. 9(1) enforcement of AB orders in foreign jurisdictions -gives court power to make an order wrt property situated in AB -restriction of court to only make order for that property -but can consider property anywhere else in making the order

When will AB court enforce a foreign order in relation to property situated to property in AB? -the Act is silent on the point -should just argue the CL and say that will enforce if real and substantial connection

Does s. 3 completely oust the CL unless s. 3 criteria are met? -probably not -there may be some circumstances in which we can take jurisdiction on CL basis -ex. if there is immovable property in AB but the parties have no ties to it -will the AB or another court deal with it? -Acorn thinks that AB will take it even if cant satisfy s. 3

Tezcan v. Tezcan (BCCA) F: immovable property in BC, H/W married in Turkey, 2 kids, W stays home, H is an engineer, spend some time in BC, has real estate there, condo in joint names and an appt building in which he has a 13/20 undivided interest, H has tons of money, divorce in Turkey, remarries, W remarries and divorces again, W has no money, Turkish law gives her nothing -W brings application in BC for division of property in BC Note: question of jurisdiction was pre-decided giving it to the BC court I: Choice of law? D: BC R: no one is habitually resident here, very small ties to BC -court characterized this as a matter relating to immovable property -H was trying to suggest this was movable property b/c all matrimonial property should be considered movable b/c you only get a money judgment, you will never get title to the farm -court says BC statute vests a rt of property in the spouse and is not the same that he is arguing, so there is a potential interest in land that is going to be granted -H arguing there is an implied K that all the property will be governed by the law of Turkey -How do we determine if there was an implied K? -determined on the basis of matrimonial domicile -look to Turkey -court says there is nothing to suggest that Turkish law all they did was get married -no such thing as a real and substantial connection to matrimonial property -so governed by the lex situs

CHAPTER 4—CONTRACT -choice of law fundamentally determined by intention of parties -trying to create a neutral framework to allow contracting parties to do what they want

Old Law: formal validity = lex loci contractus essential validity = NOTE: location of the formation of a K can be completely arbitrary

19 th Century Principles: -parties should be autonomous -agreement should be sovereign -promise -law should be a neutral framework that enforces the parties intentions -it should allow the structure within which promises can be made but the substance of those promises should be within the autonomy of the parties -this is a laissez faire idea

Present: -supremacy of intention -shared understandings of fairness -so on the one hand the parties are able to choose what law will apply but cannot just escape the idea of fairness that they should be tied to

The Search for the of the Contract Has 3 Parts 1. Did the parties expressly state their intention? 2. Did they impliedly express their intention? Note: express and implied intention are subject to -bona fides -legality -public policy 3. What would reasonable parties have intended in all the circumstances of the case? -presume parties intend the K to be governed by the jurisdiction with the most real and substantial connection

What is meant by bona fides, illegality, and public policy? 1. bona fides -is there some legitimate reason for choosing that legal system -need to look at the broader context of the agreement in determining if it is bona fide -may take into account the law of a jurisdiction that is very sophisticated -ex. for O&G Alberta or Texas would be a good place to look at b/c it is heavily litigated there 2. legality -does performance of the K require someone to break the law of the place where they are doing business? -the court does not care if another jurisdiction allows for the illegal act -what is our court prepared to participate in the enforcement of? 3. public policy -court will not participate in a K that is morally repugnant

Express Selection of the Proper Law Vita Foods v. Unus Shipping (1939 PC) F: K to ship a cargo of herring from NL to NY, def is a carrier incorporated in NS, K is made in NL, the herring are picked up by def in NL and taken to NY -accident on the way, herrings delivered in a severely damages condition -in NL there is a law saying that any K exempting a carrier from liability for negligence is void, this particular K exempted the carrier for liability in negligence -K also has a saying that it was to be governed by the laws of England -English law says its ok to exempt from negligence -def says that court should give effect to choice of law clause b/c the cheaper rate negotiated was based on the assumption that no liability in negligence I: Which law governs? D: choice of law clause governs (UK law) R: gave effect to the choice of law clause -the only time you should override the intent of the parties is when the choice of law was not bona fides, was illegal, or violated public policy and court is not prepared to enforce -here none of this applied so we should respect the parties intention -Eng was where the insurer was located

Golden Acres v. Queensland Estates (1969 QLSC—not very good, little authority) F: cheap land in QL, land holders looking for buyers, difficult to find buyers b/c everyone is broke, so approach pl in HK to buy low priced QL real estate -hire a real estate agent in HK to try and find buyers for condo development -this deal is about unpaid wages -QL developer stiffs the realtors b/c no QL real estate license in order to sue in QL -NOTE: they sued in QL b/c wouldn’t be able to enforce in HK as easily I: Which law? D: QL, HK choice of law vitiated b/c not bona fides R: court said that the choice of law clause could not be upheld b/c it did not pass the bona fides test as enunciated in Vita Foods -what you need in order to pass the Vita Foods bona fides test is some legitimate reason for choosing the other legal system other than the reason for avoiding the legal ramifications -the only reason HK was chosen to avoid the QL real estate license requirement R: court asked where the centre of gravity of the K was and then came to a normative conclusion that that ought to be the proper law of the K and then to look suspiciously at the reasons for not choosing what should have been the real and substantial connection -contrasts with Vita who looks for real and substantial connection first NOTE: this case contrasted in the following case

BHP Petroleum v. Oil Basins Ltd. (1989 AUS SC) F: only the fact that at one point royalty funds were funneling through a bank in NY, K said “shall be interpreted and applied in accordance with NY laws” I: How much connection to a jurisdiction is required to pass the bona fides test? D: must be some evidence of a relationship R: -we don’t look at strongest connection and why they didn’t pick it -we ask is there some legitimate reason why they picked where they did, if so don’t overturn it -complicated finance K, sophistication of NY law in relation to these kinds of Ks counts as a bona fides reason to choose that system -interpreted the words “interpreted and applied in accordance with” as the same thing as “governed by” R: permissible to choose laws of a sophisticated place to govern a K, this will satisfy bona fides requirement

Difference b/t Choice of Forum Clause and a Choice of Law Clause -choice of forum specifies the procedural rules -cannot force a court to take jurisdiction b/c it is always a matter for the discretion of the court -but it does prevent the parties form objecting to the forum -choice of law specifies the substantive law

No Express Selection: Colemenares v. Imperial Life (1967 SCC) F: C was a resident and domiciled in Cuba, wanted to get insurance from a Can company operating in Cuba, goes to IL and fills out forms to get policy -forms sent to ON, accepts, sends back concluded K etc to Cuba, premiums paid -C leaves Cuba and establishes a residence and new domicile of choice in US -under terms of K he is entitled the face value of the policy at any time -surrenders the policy to IL and asks for the cash -under Cuba law it is an offence to turn the cash value of insurance policy to a US resident -the law of ON doesn’t preclude this I: What law governs? D: Ontario, most real and substantial connection R: present circumstances are not relevant to determining the proper law of the K -we must look at the situation at the time of the formation of the K in order to make a judgment about the proper law -what you say now about your intention is not necessarily persuasive -what you did after the formation of the K is no evidence about your intent at the time the K is formed -process of diving the proper law of the K is an amalgam of asking whether there is any evidence of implied intention and weighting the points of contact of the K with the competing jurisdictions -factors in favour of Cuba are insured’s domicile and residence, application filled out there, forms in Cuban language, premiums paid in Cuban currency, K did not become effective until the approved K arrived back in Cuba and $ paid -decision to underwrite made in ON, forms were ON forms drafted by ON lawyers which were merely translated to Spanish, head of company in ON -key stone fact was that the forms done by ON lawyers based on ON law R: when assessing the real and substantial connection look at the time of formation of the K, subsequent evidence is not relevant

NOTE: we need to evaluate the significance of each particular connecting factor in order to determine its weight, don’t just count fors and againsts Chesire List of Factors for Determining What Law Intended: -domicile and residence of parties -national character of corporation -style in which K drafted -may refer back to other law -place where K made/performed to be performed -language K drafted in -provision valid in one place and not another -goes toward the valid jurisdiction -reasonable anticipation of lenders/insurers -situs of subject matter of K -head office of company -currency being used -nature of the subject matter

The Al Wahab (1983 Eng HL) -connecting factors/point of contact are not all of equal weight -want to tell a story about what the parties actually did intend -one factor in the face of all others may be determinative

Offshore International v. Banco Central (1976 Eng CoQB) F: OI are incorporated in Panama and doing business in US -primary K b/t them and a construction company who is working offshore of Spain -construction company negotiates a letter of credit for OI with Banco Central -the confirming bank is in NY -dispute arises about the letter of credit b/t OI and Banco Central I: Which law will govern the letter of credit? D: NY R: favoring NY was the fact that the doc has to be presented in NY to have $ paid out, money was paid in NY, payment in US dollars -the overriding fact in the case stems from considering what the point of a letter of credit was (person absolutely assured that they are immediately paid the money) -this means that the confirming bank is the one that’s supposed to pay out R: law which will facilitate easy-functioning letters of credit is the best place to govern -best to do this if say governed by the law of the place where the confirming bank is situated -commercial facilitation

Statutory Choice of Law Rules: Canadian Life Assurance v. CIBC (SCC) F: CLA insurance comp that has a NY office, EE decides to perpetrate fraudulent scheme, sends names of policy holders to TO office and says that they have requested a surrender so the TO office will send cheque to give to policy holder -EE forges the signature of the policy holder and cashes the cheque himself -cheques are drawn on a bank in NY, but it is CIBC NY branch -EE goes to jail but fight in this case is b/t the insurance company and the NY branch of CIBC -insurance company argues that the Bank should not have paid out on the cheques, that they were forgeries, so the Bank should wear the loss -under NY law the Bank would not be liable for paying out if the fraud originated w/I the ptf corporation -under ON law CIBC would be liable either way I: Which law? D: NY R: common law approach would be to look for an implied intention and then if no implied intention ask what a reasonable parties intention would be -we by-pass this inquiry in this case b/c we have the Bills of Exchange Act -here a cheque written in Canada and cashed elsewhere the law governing that cheque is the law where that cheque is cashed -it also has an exception for an inland bill if both drawn in Canada by someone residing here (is the NY branch of the CIBC residing in NY?) -court found that the NY branch was a resident of NY so it wasn’t an inland bill -this meant that the cheque was governed where it was cashed (NY) -so Bank had a defence to reimburse

UN Convention on Contracts for the International Sale of Goods -applies in relation to intnl Ks for the sale of goods, creates body of law -K for the sale of goods with an intnl element then you can have it governed by this new body of law -this convention is driven by party autonomy -you don’t have to comply but you can accidentally end up with it if you are not careful -there can be choice of law provisions in the statute that can oust the courts reasoning regarding what reasonable parties intended -this is the only statutory choice of law rule that Acorn knows of

International Conventions Implementations Act which implements the UN Convention on Contracts for the International Sale of Goods -it is based on party autonomy so if you don’t want it to apply it doesn’t have to -you can K out of the convention -careful the drafting can be tricky -should say that the domestic law of K of AB is to govern and that the UN Convention is not to apply if you want to successfully oust the intnl convention

When Does the Convention Apply? -intnl K for the sale of goods -Articles 2/3 decide what constitutes these terms -basically it applies to commercial sale of goods when parties in 2+ countries -2 situations when the convention applies -parties places of business are in different states and each are signatories to the K -so will apply unless you do something about it -where the rules of private intnl law lead to the application of the law of a contracting state -be careful with this one -b/c AB implemented the convention then the convention is part of AB law -so if we say that AB law governs then the convention will apply -if we don’t want it to apply we must say AB law will apply and the Convention doesn’t apply -so we have ousted the convention and pointed to the domestic law of K

What Does the Convention Do When it Applies -sets out substantive set of rules to govern the K for the sale of goods -it is an amalgam of civil and common law rules put together by experts

Why Would We Not Want it to Apply? -it is an experimental body of law rather than a tried and true legal system -a lot of q’s under the system are not answered -sense that it is a “European” model so many North Americans are leery of it

Why Would We Want it to Apply? -break stalemate -come to compromised position if there is a distrust wrt the legal system of the trading partner

Illegality Ross v. McMullen (1971 ABSC) F: R and M real estate agents in ON, R licensed in ON and M licensed in ON and AB -trying to lease an office bldg in Calgary, looking for tenant, M moves to Calgary to get tenants, R and M renegotiate their agreement to split the commission to a 30/70 split R/M -ultimately M wants 100 and refuses to give money to R -R comes to AB to sue M -AB law precludes suing for commission unless licensed in AB I: What is the proper law of the K? D: AB R: no express choice of law clause in the K -court says that the fact R sued M in AB is a factor weighing in favour that the proper law of K is AB (this is a wrongheaded thing to say b/c we are concerned about what facts exist at the time the K was made, what was the state of mind then?) -stuff that happens later is not supposed to matter -the court decided that M didn’t have to pay R under their agreement -AB license was required to bring an action for a commission -also s. 28 required that no licensed agent shall pay a commission to an unlicensed person in consideration for furthering a trade in real estate -so if he pays 30% to R then he will be in violation of AB law R: AB courts will not participate in the enforcement which allows for the remuneration of somebody who doesn’t have a license (which will be in breach of a statute) *Acron thinks the court is responding to the sense that M did all the work and if R wanted money he should have come to Ab and got licensed

Block Brothers v. Mollard (1981 BCCA) F: M in BC and has land there, hard to sell, hires B in AB to get pl to buy land -sells land, realtor wants the commission and the land owner refuses -realtor licensed in AB but not in BC, realtor sues in BC, same legislation as AB about not being able to sue for commission if unlicensed I: Was the BC provision procedural? Was the proper law of the K BC? Against public policy? Proper law of the K? D: AB R: -wording was “no action shall be brought” -doesn’t make any difference what the words are, it is a substantive provision limiting the right of action so this argument doesn’t hold water -M also argued that the proper law of the K was BC law and not AB (lex cause is BC) -court found that the subject matter of the K was a fee relating to the finding of a buyer, it did not deal with immovable property -M also argues that the enforcement of the K was contrary to public policy (like above case) -court says that contrary to public policy must be morally repugnant, here it didn’t meet threshold (if anything was the opposite b/c trying to screw the realtor) R: for a violation of public policy the law must be morally repugnant, it cannot just be a law that is different from the law of the forum

Boardwalk v. Maalouf (1992 ONCA) F: goes to NJ, borrows money at a casino to finance gambling, doesn’t pay money back, returns to ON, B sues him in ON b/c that’s where he is for collection purposes -M argues that cant sue in ON b/c these Ks are morally reprehensible in Canada -no express choice of law clause here I: Proper law? D: NJ R: there are no connections in ON except the guy went back there after holidays -everything points to NJ, lender, forms, etc -just b/c he left to ON after the loan paid doesn’t affect -M wanted it to be ON law b/c NJ law allows for the type of K -debt could be enforced in ON and court said it was not contrary to public policy -English precedents say a gambling debt is enforceable so long as game legal where the debt contracted (irrespective if game is illegal in the country) -there is no rock solid revulsion about gambling in ON -equities of the situation also influence public policy, if he won at gambling and didn’t repay that would not be equitable R: gambling debts from other countries are enforceable if they are legal in that country, a finding of contrary to public policy must violate concepts of essential justice and morality Illegality Under Lex Loci Solutionis: -lex loci solutionis = law of the place where the relevant performance occurs -will not enforce a K if doing so would requite one of the parties to commit an offence - grounded in the covenanty of nations and the respect for the sovereignty of the laws of other jurisdictions

Ralli Brothers v. Compania Naviera (1920 Eng CA) F: K for the sale of jute, K to ship jute from Caclcutta to Barcelona, when cargo to arrive in Barcelona def was supposed to pay $50 per ton of jute -since the making of the K a new Spanish law that said it was illegal to pay more than 875 pesos ($10) per ton of jute -this was an offence, not just an invalid K provision -def pays the lower price, ptf wants to get the full amount and brings an action in England to recover the balance owing under the K I: What is the proper law of the K? Can the K be enforced? D: Spanish law, K unenforcable R: even if everything is governed by Eng law it doesn’t matter b/c we will not use our authority to coerce a party to violate the laws of another jurisdiction -court distinguished b/t lex loci solutionis enforceability and illegality -if Spanish law had said something like “no action shall be brought…” or “K unenforceable” then it would be irrelevant (unenforceable) but making it illegal is a different scenario R: K, whether lawful by its proper law or not, is invalid insofar as its performance is unlawful by the law of the country where the K to be performed, distinction b/t enforceability and punishablilty

Gillespie Management v. Terrace Properties (1989 BCCA) F: ptf management company in BC, enters into K with def company in Washington -K for ptf to manage a property in Washington, ptf not in charge of day to day operations of property, but was supposed to find renters and supervise the actual superintendent -most of this done over the phone from BC, but did make weekly visits to Washington to do part of the work -under Washington law to be in this rental business you must have a Washington real estate license, ptf did not have one -def terminated 10 months into the K and doesn’t pay the ptf I: Does the def have a defence on the basis of ptfs lack of real estate license? What is the proper law? D: BC law is the proper law of K, but K unenforceable R: -usually when say BC is the proper law of the K the Washington provisions would not apply and the ptf would be fine -but the def is arguing Rallie Brothers and is suggesting that this is a case of illegality -ptf is countering with Block Brothers -Washington Code said “it is unlawful to act as an agent w/o a license…” -penalty was not a fine of imprisonment –remedy was one of unenforceability -went beyond mere enforceability b/c of the wording of the code “unlawful” and b/c he was coming into Washington once a week to do it

-ptfs conduct is illegal -distinguished Block Brothers b/c in that case everything that the ptf realtors did was done in AB, whereas here the ptf was visiting Washington to perform the K R: if illegal performance is required in the lex loci solutionis then K unenforceable

Capacity to Contract: -governed by the proper law of the K NOTT the law of the domiciles of the parties -domicile of the parties used to be the governing principle -so if didn’t have capacity under domicile then couldn’t K anywhere -there are problems with this b/c of minors and women in Islamic countries etc -the NEW rule is governed by the law of the K, and not the domiciles etc

Charron v. Montreal Trust (1958 ONCA) F: H domiciled in QB b/c posted in ON against own wishes, so W in QB b/c 1958 -H/W married in ON, living in ON, enter into K of separation in ON -under QB law at the time married pl could not make binding Ks with each other -K unenforceable in QB, but in ON its perfectly fine I: Is this K enforceable? Capacity? D: enforceable under ON law b/c there is a capacity to K there R: we do not conform to the old rule -capacity is governed by the proper law of the K and not the domicile of the parties -clearly ON is the law of the K R: the issue of capacity will be governed by the proper law of the K if that law is the law of the place where the K has its most real and substantial connection

Formal Validity: -used to be governed by lex loci contractus (where its made) -now a K is valid if it complies with lex loci contractus OR of its proper law -don’t need to be formally valid under both

Kenton Natural Resources v. Burkinshaw (1983 ABQB) -deals with the Alberta Guarantees Acknowledgment Act -spoke to situation when pl were guaranteeing loans and were not realizing that it was putting them on the hook for the full amount if their friend defaulted -legislation said no guaranty will be valid unless certificate of acknowledgement similar to a certificate of independent legal advice, had guarantee explained to them, signing with full understanding of what document means F: K for sale of mineral rts in Tennessee, purchaser in AB -corporation is guaranteeing the return of a $50K deposit if they are unable to give good title by a certain date -remember corporations have limited liability, therefore if they cannot fulfill obligations then the creditor will be out in the cold -they couldn’t provide good title and didn’t have any money -purchaser wants to go after the individual director who guaranteed the loan -K was made in AB that was saying certificate of acknowledgment was required I: What is the proper law of the K? D: Tennessee R: court looked at the K in the context of the whole thing -K made in AB about immovable property located in Tennessee -Tennessee had no rules about certificates of acknowledgment -there need not be compliance with AB law lex loci contractus governs the formal validity b/c there is compliance with the proper law of the K (Tennessee) R: it is an either or possibility b/t lex loci contractus and the proper law

CHAPTER 5—TORTS -lex fori -justification b/c there is a kind of relationship b/t tort law and criminal law so we have an interest in upholding our own standards and norms (very rare) -lex loci delicti -nations are sovereign over the pl who are present in that jurisdiction who are violating the standard of care there -conforms to the legit expectations of the parties -sometimes it is completely fortuitous -could have gone elsewhere and it would have still happened there -doesn’t always make sense to be there -also sometimes problems with phrase of where the tort committed -ex. for Internet defamation -proper law of the tort -where is the most real and substantial connection -this is the American approach for the most part

Phillips v. Eyre (1867) *used to be authority until Tolofson* F: case coming out of Jamaica, 1860s the conditions of the slaves were terrible, extreme poverty, huge violent rebellion, E was governor of Jamaica at the time, jailed, executed w/o trial, etc, after rebellion, E enacted legislation which insulated any gov official from any liability for anything done in the effort to put down the rebellion, E left and went to England, Phad been beaten during rebellion and came to Eng to sue E for wrongful imprisonment and assault and battery I: Will the English court hear P’s suit? Award damages for injuries? D: no R: 2 prong test enunciated to bring action in England for tort committed abroad if: -1. actionable under English law -2. not justifiable under lex loci delicti -was actionable in England -is justifiable b/c the statute insulated all the members

Maclean v. Pedigrew (preceeds Tolofson) -SCC applied the above 2 part rule to say that you could bring an action as long as it was actionable under lex fori and not actionable under lex loci deliciti F: car accident in ON by defs negligence ON law ptf couldn’t recover b/c the gratuitous passenger rule which said passengers in a vehicle (not a taxi) cannot sue the driver in negligence -QB law they could recover, were both resident and domiciled there R: in order for the action to be brought in QB we have to be able to say it is actionable under the law of QB and not justifiable under lex loci delicti -court said it was not justified -yes there was a statute, but we also look to the HTA -the negligence that was alleged is a violation of HTA so it is not justifiable R: so now we ask if there is any law of the lex loci deliciti that the negligence is in breach of (this is what was in place when Tolofson was heard)

Tolofson v. Jensen (1994 SCC) F: ptf def and F and S, resident in BC but have accident in SK -go back to BC and sue in BC -SK had a short limitation period and a gratuitous passenger rule -the SK def Jensen and the son have already settled so there is no issue between them, it is just between F and S I: What law should apply?

Lucas v. Gagon (1994 SCC) F: ptf and def from ON which is a fault based jurisdiction -H is driving and the accident happens in QB which has a no fault system -QB has a fixed amount of how much you get for each particular injury and that’s it -3rd party QB def who is also out of the picture when the case is being heard -W and kids are saying they are from ON and just happen to be across the boarder, want to be able to sue in ON to get more money I: What law should apply? R: criticized McLean b/c said it created situations that were not expected by the parties -even under McLean they’d be able to go under ON law -need to get rid of this case, shouldn’t have to worry about the SOC from the drivers from different drivers -should not create a situation where single txn created different circumstances depending on where you sued -court will replace it with a fixed rul of lex loci delicti -this is justified b/c in the area of tort what we want the most is certainty b/c parties should be able to settle with confidence about the legal backdrop that they are negotiating in relation to R: adopts lex loci delicit rule into Canadian law for torts

NOTE rule does not deal sensibly with the holiday car crash situation -this is addressed in the Hague Convention which says this exception should be made where all parties are from the forum (so lexi fori should apply) **Canada is not a signatory to the Convention and the court does not agree to follow the Convention but it may be that there is room for exceptions to the lex loci delicti rule in the intl context where there would be an injustice -so in interprovincial context = lex loci delicti (no exceptions) -intnl context = presumption of lex loci deliciti with a discretion reserved to the court to make an exception if deliciti would create an injustice

Counterarguments to the responses by the SCC in Tolofson: -doesn’t make sense when breach in one jurisdiction and the damage occurs in multiple jurisdictions (ex. in products liability distributed worldwide) -so damage will happen (lex loci deliciti) in many different countries -how do we decide? -the idea is that you should be able to rely on the place where you are acting

NOTE: Tolofson rejected the Hague Convention -instead its lex loci deliciti UNLESS -international context AND -injustice -these can lead to an exception as seen below

Hanlan v. Sernesky (ONCA 1998) F: ptf/def are from ON, car crash in Minnesota, ptf brings action in ON (lex fori), under ON law it was possible for relatives of the injured party to have a cause of action against the def for losses due to primary ptfs injuries I: Which law applies? D: ON law R: if lex loci delicti applied then pl who have a cause of action in ON will be deprived for compensation of their secondary loses -court allowed the exception in this case -Tolofson sets out the possibility of an exception in the intnl context -would be an injustice to deprive other ptfs of their action just b/c tort in Minnesota R: international car crash an exception to rule in Tolofson so long as an injustice would arise

NOTE: is a deprivation of a cause of action really an injustice for these pl?

Wong v. Lee (ONCA 2002) F: ptf/def from ON, driving in NY, car goes off the road and ptf is injured, insured in ON, insurer is resident in ON, so nothing connects the case to NY other than the fact that the accident took place there -ON law precluded ptf from suing for pecuniary loss, but in NY they can -in ON non-pecuinary loses had to meet a threshold test (like catastrophic injuries) in order to be recoverable in excess of the set statutory rate, recovery subject to a statutory deductible, none of these limitations were in NY law -ptf wants to sue under the lex loci delecti so he will get more, def doesn’t want it I: What law applies? D: NY R: quantum under the heads of damages were found to be substantive lex causae -exception carved out in Tolofson is very narrow, only to be in circumstances where there is an intnl case that would create a clear injustice -laws favouring one party or another does not constitute an injustice -no grounds on which to make an exception to the rule in Tolofson

(Dissent) Borin J.A. -based on a philosophical understanding of the idea of discretion -notion of judicial discretion means that there are a range of options for the court, all of which are lawful, where there is no discretion then the court makes a lawful decision or an unlawful decision -when discretion exists the court has wiggle room, power to decide from among a number of options, all of which are lawful -Tolofson creates a discretion in the intnl context -once the court makes that decision it is not subject to being overturned on appeal

Somers et al v. Fournier et al (2002 ONCA) F: ptf from ON, lex loci deliciti is NY, def from NY, ptf files a suit in ON, under NY law the limitation period had expired, court found that the rules relating to awards of costs are procedural b/c they are part of the court’s disciplinary mechanisms -ptf arguing there should be an exception to lex loci deliciti rule b/c the limitation period is up I: Exception to the lex loci delicti rule? D: no, NY law applies R: was intnl, but the situation was no different than the Tolofson v. Jensen case, -quotes Wong v. Lee, exception in intnl context is meant to be very restrictive -no injustice, if there is, it is no more than existed already in Tolofson so we will not allow for an exception in this case

Brill v. Korpaach Estate (1997 ABCA) F: ptf from AB, def from SK, lex loci delicti from Sk, lex fori is AB, limitation period in Sk has expired but still running in AB -accident in SK, ptf goes back to AB to sue, SOC issued in Jan 1993, at the time everyone assumes limitation periods are procedural and there’ll be no problem with bringing the action in AB under that limitation period -July 1994, SOD filed and def does not raise the limitation period issue -July 1995 Tolofson decision saying that limitation periods are substantive and the lex loci deliciti decision -def submits an amended SOD, pleading the limitations issue -ptf argues there should be an exception b/c of the injustice (everyone thought they were doing the right thing) -ptf thinks the lex loci should be seen as AB b/c the place of the tort should be where the damage is suffered (injuries were actually suffered and materialized in AB not SK) -court rejected this -ptfs 3 rd argument that it was unconscionably harsh to hold otherwise, b/c state of the law I: Injustice? D: no R: this is not even in the exceptions that are set out in Tolofson -there is no international element -so there is no possibility for us to extend this exception in this situation -court said that AB not the place of the tort R: damage in a car accident happens on impact, irrespective of the continuous suffering -result is no harsher than the case of Tolfoson itself, expired limitations periods are not sufficient for an injustice

Bezan v. Vander Hooft (2004 ABCA) F: ptf is flown to AB after the accident, dies the next day from the injuries, ptf from AB, def from SK, SK has a no fault scheme, AB has a fault scheme, recovery under the Fatal Accident Act is going to be greater in AB than it would be in SK, SK is lex loci delicti -ptf is trying to argue both that there should be a lex loci delicti rule and also that the place of the tort was in AB I: Exception? D: no R: damage occurs where the accident happens -just b/c came immediately to AB after doesn’t matter, tort didn’t take place in AB

SUMMARY: only exception allowed was when the families were denied a cause of action if the lex loci delicti rule upheld

Place of the Tort:

Moran v. Pyle National (1973 SCC) ** pre-Tolofson case F: ptfs estate suing in SK, ptf is in SK, def in ON, to sue in SK they need to serve the ON def in ON, they have to get an order for service ex juris, court will allow this order if it’s a SOC in relation to an action in tort where the tort took place in SK -negligent manufacturer or a light bulb, made by ON company -components made in ON or US, assembly in ON, shipped to SK, ptf changing lightbulb and was electrocuted and died I: Where did the tort occur? D: SK R: one theory is that where the DOC breached (ON), but court says there is no negligence in the air, this means that you can breach your DOC all you want in ON and there is no tort until someone is harmed, tort crystallized when someone hurt -this meant the tort happened in SK so the ptf can get an order ex juris to serve in ON R: tort arises where the person is harmed

What kind of injustices can the rule in Moran give rise to? -SOC in Canada is pretty high -if manufacture here to send somewhere like Africa or China then we can manufacture to a lower standard -this already happens in China, they manufacture to a SOC of where its going

Leonard v. Houle (1997 ONCA) F: A high speed chase involving the ON Police begins in Ottawa and crosses the bridge into QB, thief hits a pedestrian in QB, pedestrian sues the OPP and the thief in ON saying that the tort occurred in ON -ptf wanted the lex causae to be ON to be able to recover for negligence, in QB he couldn’t -ptf also argued that OPP negligent in carrying out police duties (not of MV operation) I: Where did the tort occur? D: QB R: DOC also being breached across the river in QB, relevant breach that caused the damage took place in QB, also no exception to Tolofson b/c we are in interprovincial context, ptf OPP was negligent in carrying out its police duties vis-à-vis the police, the no-fault regime shouldn’t come into play, argument was rejected

Survival of Actions Act R.S.A. 2000, s.2 -cause of action survives the death of the plaintiff and lives on for the estate

Fatal Accidents Act R.S.A. c. F-8, s.2 -defendant who would have been liable for damages in negligence for injuring a plaintiff remains liable if the plaintiff dies from the injuries caused by the negligence.

Other Causes of Action: -look at the interface between actions for tort and actions for contract where there are elements of both in the legal relations involved

Re Schroen Estate v. Wawanesa (1996 ABQB) F: application requesting advice from Court how to proceed, S pedestrian in Louisiana, killed, estate sued in Louisiana, found driver, award of damages, deceased’s insurer given opportunity to participate in the proceedings, declined, driver’s insurance company goes into receivership during proceedings, estate now trying to recover under S’s own insurance, underinsured motorist clause, policy states: s. 5(b) liability governed by where accident happened, but quantum governed by place where policy issued, s.5(f) nothing binding (quantum/liability) unless they’re given an opportunity to participate I: Does the lex fori or lex loci delicti govern? D: lex loci delicti governs, L law applies R: insurer prepared to indemnify for damage caused by an underinsured motorist outside the province as determined by the lex loci delicti , however, they don’t want to get stuck with a huge U.S. damage award, court finds that quantum not to be determined under L law, also fnds that they were given an opportunity to participate

Thai v. Dao (1998 ONSC) F: T & D from ON, D driving T’s car, accident in QB caused by the D and another unidentified driver, ON Act states all insurance Ks must provide that the insurance company will pay for everything that the insured would be able to recover from an unidentified insured motorist, T argues insurance company owed the amount in damages that would have been recoverable under ON law I: Does the insurer pay under the lex loci delicti or the lex fori? D: recovery of damages for torts are governed by the lex loci delicti, action dismissed, QB aw applies

Herman v. Alberta Public Trustee (2002 ABQB) -about the interface between tort and contract where the plaintiff and defendant are also in a contractual relationship and where the negligence is both a breach of contract and a tort F: plane crash, 3 of the ptfs had entered into a K to charter a plane from Ft. McMurray to SK, 3 other ptfs were guests, one ptf found to enter into the K himself, 2 others were found to have entered into it as a result of an agency agreement, lex loci deliciti is SK, AB law significantly more beneficial to ptfs I: What law governs the K? What law governs the tort? D: AB law governs the K, SK law governs the tort R: passengers/carriers resident in AB, domiciled in AB, K made in AB, fact that they were taken into SK did not tip the balance to make its real and substantial connection SK, court found that the ptfs who were privy to the K could sue on AB law, other ptfs had to sue in SK b/c weren’t privy to the K as guests R: if you have an action in K and in tort then you can choose which cause of action to pursue and have either the lex loci delicti or lex loci contractus apply to your choosing

CHAPTER 6—SUCCESSION

Remember: immovable property = lex situs governs Movable property upon death = law of domicile at time of death **characterization of the property is done by the law of the lex situs!!!

Testate Succession: Re Berchtold (1923 English Chancery) F: T domiciled and dies in Hungary, land in England to be sold w/proceeds going to son, son dies intestate in Hungary, Hungarian law: sisters all subject to LE to widow English law: wife gets everything, I: How to characterize the property? Which law applies? D: immovable property, English law applies R: property characterized by the law of the lex situs which is England, English law held that immovables include leasehold interests, rent charges, mortgage debt secured by land, interest in the proceeds of sale of real estate subject to a trust R: money payable out of the sale of land is immovable property NOTE: the sister argued that the property once in the hands of B was money and hence movable, court rejected this b/c the money was coming into the son’s estate as money

Wills Act 39(1) In this Part, (a) an interest in land includes a leasehold estate as well as a freehold estate in land, and any other estate or interest in land whether the estate or interest is real property or is personal property; (b) an interest in movables includes an interest in a tangible or intangible thing other than land, and includes personal property other than an estate or interest in land.

NOTE: the movable/immovable distinction adopted by the Act but it is given a new name: movable property/an interest in land.

(2) succession to immovable property is governed by the lex situs. Formal and intrinsic validity of a will of immovable property are governed by the situs.

(3) succession to movable property is governed by the law of the testator's domicile at the time of death. Formal and intrinsic validity of a will of movable property are governed by the domiciliary law.

40. As regards the manner and formalities of making a will, so far as it relates to an interest in movables, a will made either within or outside Alberta is valid and admissible to probate if it is made in accordance with the law in force at the time of its making in the place where (a) the will was made, (b) the testator was domiciled when the will was made, or (c) the testator had the testator's domicile of origin.

NOTE: the problem that arose in Ramsay v. Liverpool Infirmary would be solved without resorting to the artificial tortured interpretation of domicile that we find in that case

-. 41 will cannot go from being formally valid to being formally invalid as a result of a change in domicile.

-s. 42 construction of the will is presumed to be governed by the law of the place where the testator was domiciled at the time of the making of the will -but if consistent with lex situs the lex situs prevails

NOTE: Part 3 Wills Act says that where there is a foreign or interprovincial element can designate your will to be an international -governed by the Convention Providing a Uniform Law on the Form of an International Will

Allison Estate v. Allison (1998 BCSC) F: T domiciled in QB, executed will in QB, married and moved to B.C., domicile of choice BC, entire estate is moveable property, QB law marriage does not revoke a will, B.C. law will automatically revoked by marriage I: Do we apply the domicile at the time of death or at the time the will was drafted? D: at the time will was drafted, QB law applies, will not revoked by marriage R: question of whether marriage revokes a will is determined by the testator's domicile at the time of the marriage, should be able to determine when you are married whether or not the will will be revoked, subsequent domicile changes should change this R: change in domicile will not invalidate a will that was previously valid under the matrimonial domicile

Re Canada Trust Co. and Sachs (1990 ONSC) F: 1960 man gets married,1968 creates a will giving all property to his wife, 1974 divorces, affirms his will to give all property to his now ex-wife -everything happened in QB, land in ON, had QB land and movable property unaffected by the divorce and will validity b/c of the law 1977: ON law changes so divorce invalidates wills 1986: man dies I: Can the QB court take jurisdiction? Is the will invalidated by ON law? D: no, land in ON, will was invalidated by ON law R: Formal and Essential validity are governed by the situs of immoveable property. The QB court reluctant to make a determination related to immoveable property situated in another jurisdiction, action moved to ON, W argues at time the will was made and the divorce, the will wasn’t revoked by divorced; law changed later, assess things from the time of death, at the time of death the law in ON would invalidate the will therefore the will was invalid w.r.t. the ON immoveable property and went under the On Intestate Succession Act where the wife was unable to recover

Intestate Succession: -biggest problem is immovable property outside of the jurisdiction where the deceased was domiciled -opportunity for the spouse to double dip

Intestate Succession Act -s. 3(1) where an intestate dies with a surviving spouse and issue the first $40,000 goes to the spouse and he/she has a charge on the estate for that amount

Re Collens (1986 Eng Chancery) F: deceased domiciled in Trinidad, buys property in 3 jurisdictions: T&T: movable and immoveable property Barb: moveable property England: immoveable property -7 children from the marriage are fighting with the new young, interloper wife who swooped in and conceived a child, W settles with the rest of the family for £1, 000, 000, negotiation takes place under T&T law I: Can Wget the preferential share of England - £5,000 D: yes R: permits the potential of double dipping

Sinclair v. Brown (1898 ONSC) F: H dies intestate Illinois, immovable and movable property there, also immovable property in ON, there is a surviving W, no kids, 2 sisters, Illinois law gave a widows award of $833, after that widow and sisters to share proportionately with residue, in ON $1K to widow, sisters trying to argue that one preferential share is all that a widow gets I: Can W double dip and get 2 preferential shares? D: allowed W to double dip R: court says only has power to apply the ON act

Thom Estate v. Thom (1987 MBQB) F: dies intestate in SK where he has movable and immovable property, also has immovable property in MB, widow gets preferential share 40K in SK and shares with the kids 1/3 of the residue each, MB law says W gets a preferential share of 50K and ½ the residue I: Can she double dip? D: no, gets 40K from SK and 10K from MB R: already got 40K under SK law, entitled to 50K in MB law so the court decides to top up the difference, gives her 10K off the top of the MB assets and then the residue is divided, aim behind the statute are to create an equitable distribution, a ballpark idea of what the reasonable person would do in the cirs, courts trying to comply with policy intentions and think they can achieve the result of both by doing this R: no longer allowed to double dip, but will top up the shares so that the W gets maximum amount

Vaughan Black’s Case Comment on Thom Estate -thinks the court should be getting rid of in completion the lex situs rule for immovable property and that it should all be going under the law of the deceased domicile at the time of death -Acorn doesn’t think it is such a striking issue of justice to let the widow get both -thinks it depends on the size of the estate -if gave whole estate to widow by double dipping may be more problematic -Black argues that the policy reasons for the rule no longer exists -came out of Eng at the time that no longer exists -no longer trying to keep land in powerful families -no longer an interest in ensuring immovable property governed by lex situs -Acorn doesn’t find him persuasive -even if law wrt immovable property was based on that historical context there are still good reasons for keeping the lex situs rule -if nothing else, each jurisdiction must have sovereignty over that over which it is constituted—its land

Vak Estate v. Dukclow (1994 ONSC) F: intestate, dies in MB, estate includes immovable property in ON as well as some property in MB, preferential share in MB is 50K, and in ON is 75K, deceased had an estranged H but they had never been divorced, also had a son from a previous marriage, by the time this case is being heard the estranged H has also died intestate, the estranged H will just get the money and it will go to his brothers and sisters, we want it to go to the son I: Can H get 2 preferential shares? D: no, gets 75K total R: court follows Thom, gives H 50K off the top in MB and then will not allow him to get the 75K in ON, will top it up to make it 75K total, applied Thom to limit the deceased’s spouse right to double dip R: upholds Thom

CHAPTER 7—PROOF OF FOREIGN LAW

Traders Realty Ltd v. Sibley (1982 ABQB) - 2 basic principles: 1. foreign law is a fact to be proven in evidence -in order to prove foreign law you would call expert witnesses -viva voce evidence -must plead the aspects of foreign law specifically in the pleadings -law can also be admitted or agreed upon by the parties NOTE: in interprovincial issues this is different b/c you can have dueling experts -s. 12 Judicature Act allows the court to take judicial notice of any province or territory in Canada

2. in absence of proof of foreign law we presume the law of foreign jurisdiction we presume it to be the same as the law of the forum -happens in China a lot

The Mercury Bell (FCA) F: labour dispute on ship flying the Liberian flag, substance of Liberain law not pleaded, no expert evidence adduced I: What law applies? Can we presume the law is same as lex fori? D: Canadian law, exclusive of Labour Relations Board stuff R: b/c no evidence this meant that it would be governed by Canadian law, Labour Code of Canada deal specifically with the Labour Relations Board, court held that the lex fori will apply only to the extent that its provisions are capable of general application, couldn’t apply all the administrative law aspects, wouldn’t go so far as to assume Liberian law would allow for the Labour Board R: when we assume the lex fori is the same as the foreign law we only apply the general provisions exclusive of any administrative provisions

CHAPTER 8—REFUSAL TO APPLY FOREIGN LAW -we apply the law of another jurisdiction when there is a dispute b/t parties -we do not apply the public law of another jurisdiction, we exclude: -foreign penal law -criminal courts of the jurisdiction the only ones capable of dealing with it -but international jurisdiction to try a crime against humanity -any court can try NOTE b/c penal is an adjective we run into problems about what penal is -foreign tax/revenue law -2 exceptions: a. interprovincially -reciprocal enforcement of tax judgments b. international treaties may authorize some tax judgments -laws that are contrary to public policy

Huntingon v. Attril (1891 PC) F: provision in NY code essentially criminalizing the making of false statements in a prospectus, fine to be levied against the directors was to be paid to the creditors I: Is this a penal law ? Or b/c it is a compensation of creditors does it have a sufficient element of private law for us to enforce law? D: not a penal law, matter of compensation R: if truly a penal law then fine would be paid to the state, here the ptfs had the rt to pursue the action themselves, basic underlying aim is compensation not penalizing so more akin to a private law action R: look to basic underlying intention of the statute to determine if its penal or not

CHAPTER 9: JURISDICTION OF THE FORUM COURT -does the court have a legitimate claim to authority over this def? -don’t care about the ptf -do we have the right to make def do something -presence of def within the jurisdiction is a major determinative -3 circumstances where courts may take jurisdiction even if not w/I territorial borders: 1. order for service ex juris under Rule 30

2. by conduct -attorned to courts jurisdiction even without service 3. expressly agreed to be bound -even without being served -court feels it has moral authority over the def even though not within the jurisdiction NOTE: all of these principles are subject to the principle of forum non conveniens -the decision to take jurisdiction is always a discretionary one -usually involves a Q of where is the evidence most readily available

Personal Service: Butkovsky v. Donahue (1984 BCSC) F: ptf mom and def daughter in a car accident in Oregon caused by defs negligence, ptf domiciled in BC, def domiciled in California, lex loci deliciti is Oregon, car insured by BC company, ptf brings action in BC NOTE: this is a pre-Tolofson case so limitation periods will be seen as procedural and governed by lex fori -ptf gets ex juris service order, def insurer wants it set aside, brings an application for an extension of time to serve daughter in BC, by this time the limitations periods in both jurisdictions have run their course -daughter comes from California for the express purpose of being served by mom I: Can the court take jurisdiction? D: yes R: first rule of taking jurisdiction is if the def can be served w/I boundaries, she was served here and that was sufficient, court didn’t care that she only was there for traveling, even though they had jurisdiction to allow her to be served court considered whether it was a forum non conveniens, test is if it would be better done in another forum, court said a justice cant be done anywhere else b/c limitation period is expired everywhere else R: after we decide if we can take jurisdiction the court must consider if it is a forum non conveniens

NOTE: usually we look at the evidence available, not on the ability to sue

Charron v. La Banque Provincial du Canada (1936 ONHC) F: woman suing bank in negligence, domiciled in QB, banks office in QB, negligence in QB, moves to ON and brings the action in ON, serves the docs on the branch office in ON, Bank contests the jurisdiction saying that the service isn’t good and that the bank is not resident in ON for the purposes of service I: Does the court have jurisdiction? Proper service? D: yes to both R: service to the branch constituted service to the bank w/I the borders of ON, court did not view itself as a forum non-conveniens, would be difficult for def to come and def in ON, difficult for ptf to pursue action in QB, R: where service affected and neither forum in a better position to hear the case so there is no reason to oust the case from court’s jurisdiction

Kroetsch v. Domnik (1985 ABQB) F: suing a company in AB for wrongful dismissal, comp not registered in AB and claims that it doesn’t do business in AB, K was made in TO, company had agent/manager in AB who solicited orders and sent them to ON, ptf serves the agent in his basement in Calgary I: Did this constitute good enough service? D: yes, no other way to serve that aspect of the corporation R: there are rules for how to serve a corporation in ON and AB, the def was doing business in AB and not registered in AB, there are no rules for these types of companies, since the corporation was operating outside the ABCA the court said that service on the EE was sufficient, the court did not view itself as forum non-conveniens b/c it would be equally hard for the ptf or def to relocate R: upholds Charron, service for an unregistered company can be affected on EE

Service Ex Juris: -circs when a court may grant an order ex juris: -Rules of Court R. 30 a. land in Alberta b. K or wills dealing with land in AB c. relief sought against a person domiciled or ordinarily resident in AB d. estate of a deceased who was domiciled in AB e. centre of gravity of trust in AB and need to serve Tee outside f. K that was made in AB, made by agent within AB, AB law governs K g. breach of K committed in AB h. tort committed in AB i. injunction going to take effect in AB j. service of 3 rd party (if 1 st def in AB) k. action by mortgagee of property (not land)… l. chattel mortgage m. judgment of any court of AB n. proceeding is a matrimonial cause -we have already decided about jurisdiction under the Divorce Act o. carriage by aircraft p. (Kroll), if person has judgment from another jurisdiction and def has property in AB, ptf wants to seize in AB but def is elsewhere can serve them (enforcement) q. breach of equitable duty w/I AB -supporting documents for service ex juris set out in R. 31 -affidavit or other evidence stating that: a. belief there is a reasonable cause of action b. country the person to be served is, or probably may be found c. grounds upon which the application is made, must give time limit as to how long you have to do this NOTE: court will still want to hear about forum non conveniens NOTE: service ex juris is always made ex parte and carries any of those ramifications -court vigilant to make sure that you are not trying to pull a fast one

6 Principles of Service Ex Juris (Selan v. Neumeyer) 1. order is discretionary 2. all doubt to be resolved in favour of the foreigner 3. granted sparingly b/c are an interference w/ sovereignty of foreign power 4. substance of the whole matter has to be looked at 5. shouldn’t be permitted unless w/I spirit and the letter of the law 6. shouldn’t be allowed if forum non conveniens -look at all surrounding circs -basic Q: is there some other forum that is more appropriate to hear the case in the interests of justice and convenience -parties concerns are not the only ones, also comity of nations

Lieu v. Nazarec (2006 ABQB) F: car accident in ON, ptfs domiciled and resident in AB, def driver from ON, ptf L injured and suing for damages, ptfs H is suing for loss of consortium, ptf bringing action in AB, needs service ex juris b/c def in ON I: Will the court grant an order ex jursis? D: yes, under R 30(h) of ARC R: ptf claims that the loss of consortium didn’t have until they were back in AB, so the tort occurred there, judge says that the tort was committed in ON, says Moran v. Pyle says a tort is committed in the jurisdiction where there is the most real and substantial connection Acorn thinks that this is a mistake, that case said the tort didn’t crystallize until the guy actually electrocuted (no negligence in the air)

Mercantile Bank of Canada v. Hearsay Transport (1976 ABSC) F: loan made by a BC bank to an AB company (H), purpose of the loan is to finance corp to carry on logging business in AB, loan guaranteed by individual and corporate guarantors in BC, H is not successful in business, default in loan, bank sues company in AB, Bank wants to join the corporate guarantors as third parties, H is located in AB and is served with SOC in AB I: Can the AB court grant an order for service ex juris to 3 rd parties in BC? D: yes, under rule 30(j), R: person outside AB is a necessary or proper party properly brought against someone in AB, guarantors are arguing they are not a necessary party, claim they can be sued in BC, court rejected this, there are two words “necessary” OR “proper”, they were proper, court emphasized the discretionary nature of R. 30, it is subject to the doctrine of forum conveniens, just b/c you fit with R. 30 the forum must be appropriate in all circumstances -here there would be no point in duplicating everything in BC relating to the guarantors R: duplicating an action will be a sufficient reason to find that a court is not a forum non conveniens, so can use it to serve a 3 rd party ex juris

Kroll Associates v. Calvi (1998 ABQB) F: K obtained judgment from NY court in action on a K against C and her son, Cs resident in QB, K wants to enforce judgment in AB, C beneficial owner of land situated in AB, legal title to land in name of numbered company, comp initially reg in AB and later in QB, K brings proceedings in AB to enforce judgments, order granted, Cs want to set aside the order I: What subsection does ptf think they are under? Can court grant an order for service ex juris? D: R. 30(p) applies and not (a)/(b), ok to grant an order R: ptf claims R 30(a) or (b) in relation to land situated in AB, court said that didn’t work, those sections refer to situations where the primary cause of action is related to land situated in AB (primary dispute), here the primary cause of action had to do with NY, look at R. 30 (p), person initiating proceedings has a good judgment and property in AB to satisfy the judgment, no reason to suggest not the convenient forum R: R 30(a)/(b) only relates to dispures where the primary issue revolves around land, if dealing with enforcement of a judgment look at 30(p)

Talbot v. Pan Pacific Oil Corporation (1977 ABCA) -ptf messed up original application for service ex juris, denied, fixes it, def tried to argue res judicata, res judicata does not apply to interlocutory proceedings, then below heard F: ptf trying to join a parents company to an action, the def is a wholly owned subsidiary in AB, looking at R. 30(j) where party is a necessary or proper party I: Can the court grant service ex juris? D: yes under R. 30(j) R: parent is necessary and proper party, subsidiary acting on advice from parent company, res judicata doesn’t apply to interlocutory motions

Patel v. Friesen (2002 ABQB) F: lawyer applies for order ex juris, only have an affidavit by lawyers secretary, master says there is no way that this is enough, throws lawyer out, so lawyer leaves everything the same and hopes to get a different master who is not as picky about the documents, ends up going back to master Laycock, he flips out I: What is meant by R. 31(a)? R: under R. 31 we need evidence stating that in the belief of the deponent the applicant has a reasonable cause of action, need to show the details of the cause of action, at minimum tells where accident occurred, injuries suffered, nature of the negligence, if the person signing the affidavit doesn’t have first hand knowledge of this then they must be able to swear on the source of their information of belief (and give it), basically flesh out the details of the cause of action -in a K we need nature/extent of breach/damages, attached K if written, choice of forum clause

Jurisdiction by Submission—Submission By Conduct: -court will have jurisdiction where def has voluntarily submitted -court will find different types of conduct to be submissive -showing up and defending an action on the merits -by asking the court for an authoritative determination you are acknowledging it -these cases arise in the enforcement of foreign judgments -must show foreign court had jurisdiction -one way to do this is to show that the def submitted to the jurisdiction

Henry v. Geoprosco International (1976 Eng CA) F: ptf in AB, K of emp with a corp doing business in Jersey, head office in London, ptf sues in AB, gets order for service ex juris, def shows up in AB to protest the courts jurisdiction and argue forum non conveniens, def loses and then disappears, no SOD filed, ptf served def ex juris so then gets default judgment, ptf taking AB judgment to England and is trying to have English court enforce the judgments I: Did the defs act of showing up constitute a submission of the jurisdiction? D: yes R: cites Harris v. Taylor holding that a protest of the courts jurisdiction constitutes submission to its authority -this is an old rule

NOTE: legislative response in R. 27 which overrules this case -before delivering a defence may apply to the court to set aside the service of the SOC, to discharge the order, etc and this will not be seen as submitting to the court (didn’t get all the words here, double check the wording)

Roglass Consultants v. Kennedy (1984 BCCA) F: ptf in ON and def in BC, ptf brought an action against the def in ON, pf gets order for service ex juris from ON, def served in BC, def responds by sending letter to the ptf saying that he intends to defend the action, encloses a letter saying this is our SOD, also send the letter to the clerk of the ON court, unrepresented litigant, clerk writes back and says this is not a proper SOD, you are now out of time to file, need to apply for an extension, tells to go get a lawyer, def does nothing, ptf gets default judgment, ptf was trying to register ON judgments in BC so must show attorned to the jurisdiction I: Does the act of sending the bizarre SOD to ON Court constitute submission? D: yes R: def expressed an intention to appear, to defend, sent what they thought was a SOD to the court, fact that they didn’t get extension etc doesn’t matter, so ptf could register the ON judgment in BC R: showing an intention to defend, even if inadequate, qualifies as attorning to the jurisdiction

Fulford v. Reid (1996 MBQB) F: bickering b/t minister of ntnl revenue and an EE of the dept, R is in MB and says nasty things about Minister F in the press, F sues R in defamation in ON, F gets order for service ex juris, def R sends a letter from MB to F saying that the ON doesn’t have jurisdiction and also encloses a SOD, def does not engage with ON court at all, ptf files the SOD ‘for’ the def w/o the defs knowledge I: Did he attorn? D: no R: def did not submit, cannot have a ptf file for the clerk to constitute attornment R: def must himself attorn, ptf cannot attorn on behalf of def even if it includes filing his docs