Court File and Parties

Court File No.: Sault Ste. Marie 225/18 Date: 2019-07-12 Ontario Court of Justice

Between:

C.B. Applicant

— AND —

C.R.F. S.B. M.R. L.R. Respondents

Before: Justice John Kukurin

Heard on: July 11, 2019

Reasons for Judgment released on: July 12, 2019

Counsel

Lindsay Marshall ...................................................................... counsel for the applicant, C.B.

Jasmine Gassi Harnden ....................................................... counsel for the respondent, S.B.

Tyra Ohman .......................................................................... counsel for the respondent, M.R.

Tyra Ohman ........................................................................... counsel for the respondent, L.R.

No appearance by or on behalf of C.R.F., even though served with notice

Reasons for Judgment

KUKURIN J.:

Introduction

[1] These are my Reasons for my decision on a motion seeking an order to transfer this proceeding from the city of Sault Ste. Marie to the City of Thunder Bay.

[2] This case is not about jurisdiction. It is a case about 'venue'. All parties agree that the Ontario Court of Justice is a proper court to deal with claims made.

[3] The motion (at Tab 11) seeking to transfer is brought by the respondent M.R. However, it is not simply to transfer. It also involves an objection to the proceeding having been started in Sault Ste. Marie. M.R. argues that it ought not have been started in Sault Ste. Marie court but in Thunder Bay court. The claim to transfer is firstly based on the success of this argument. And if this argument is not successful, M.R. still seeks a transfer to Thunder Bay based on the Family Law Rules, specifically Rule 5(2).

The Family Law Rules

[4] The Family Law Rules exist to provide as much as possible, a set of directions about procedure that should apply to court cases in the realm of Family Law. They cannot cover all of the permutations and combinations that may arise in family litigation, but they do a creditable job. It is not disputed that these Rules apply to this proceeding. They should be followed where possible, not only by litigants but also by judges. The Family Law Rules are authorized by the Courts of Justice Act and are a creation of statute. They are not merely suggestions to litigants; they are meant to be followed.

[5] Where a difference of interpretation about a Rule arises, a court can make a decision, or at least give a Ruling. In fact, the place where a case starts, and the transfer of a case from one venue to another is not a novel issue. There has evolved a body of case law that has dealt with these very issues, although perhaps not in exactly the same set of circumstances.

[6] Naturally, courts must deal with different factual situations. A court has to rely on the information presented to it by the litigants. Sometimes that information is just not provided, sometimes it is deficient, sometimes it is contradictory, and sometimes it is not of very good quality. This information comes to the court by way of evidence. On a motion such as the present, that evidence is in the form of affidavit material sworn by the affiant of the affidavit. There are Rules that specify what type of evidence is permitted on motions, and what the consequences are if there is non-compliance with such Rules. I say this because there is something of everything in evidence on this motion: questionable quality, contradiction, deficiencies, and very obviously missing information.

Ordinary Residence of the Child

[7] The place for starting a case involving custody of, or access to a child is governed by Rule 5(1)(b):

Rule 5. (1) Subject to sections 21.8 and 21.11 of the Courts of Justice Act (territorial jurisdiction — Family Court), a case shall be started,

(b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in [exceptions not relevant in this case]

[8] Where a child "ordinarily resides" has been subject to considerable judicial interpretation. There is no statutory definition of 'ordinary residence' or where a child 'ordinarily resides'.

[9] The argument of M.R. is that the child never ordinarily resided in Sault Ste. Marie. She maintains that the child's 'ordinary residence' is now the Town of Marathon at the home of M.R., and that it has been so since October 19, 2018. This is nine months ago and sufficient time for the court to conclude that the child's ordinary residence is not now Sault Ste. Marie, if it ever was.

[10] How the child, P., now over two years old, came to be in M.R.'s home is unfortunately poorly documented by all parties. It seems almost incredible that the parties cannot provide evidence of where and in what circumstances P. has lived since he was born. He is just two. It has not been all that long.

The Child's Residence Prior to October 2018

[11] Firstly, I will deal with the argument that the child P. should be considered to be ordinarily resident in Marathon. The child first arrived there on October 20, 2018. Before then, he was residing in the home of the applicant, C.B., P.'s paternal grandmother, whose home is in Sault Ste. Marie. Why he was living there remains somewhat murky based on the evidence before the court. C.B. says that he was in her home pursuant to a "Customary Care Agreement" which had been facilitated by the Children's Aid Society of Algoma, which she believed, from assurances provided to her by Tara Fleet, a Children's Aid Society of Algoma worker, had been approved by Pic Mobert First Nation, and by the mother and by the Algoma society. The problem was that C.B. does not have a signed copy of this "Customary Care Agreement". She does, however, produce an unsigned copy of a ten page document entitled "Child and Family Services Act, Part X", "Customary Care Agreement" which she claims sets out the terms pursuant to which the child P. was in her home residing with her on October 19, 2018.

[12] C.B. also produces two original signed letters of Tara Fleet under the letterhead of the Children's Aid Society of Algoma, both dated August 8, 2018, addressed "To Whom it May Concern". In these letters, Ms. Fleet makes it clear that C.B. was caring for P. from June 28, 2018, that C.B. was a major part of a safety plan to keep P. out of the care of the society and with family. Ms. Fleet also confirmed that P.'s mother had made this family plan with C.B. for P. to stay with C.B. until the mother was able to address her addiction and mental health issues.

[13] In addition, C.B. produces a copy of an e-mail dated October 3, 2018 sent by Tara Fleet to the mother, C.F. and to C.B. It is clearly a covering e-mail enclosing (ie as an attachment) a copy of the "Customary Care Agreement" mentioned above. The e-mail indicates "The band has approved the document". The only band which is shown as a signatory in this Customary Care Agreement is the Pic Mobert First Nation. C.B. does not have a signed copy of this agreement. However, she unquestionably had P. living with her and in her care since June 28, 2018.

[14] C.B. also claims that P. was residing in her home after he was released from hospital after birth (on Dec 30, 2016), but both C.R.F. (P.'s mother) and S.B. (P.'s father) were residing with her in her home. Although they left C.B.'s home, C.B. indicates under oath that they left P. in her home and in her care. The parents did not remain together as a family. They were evicted and they separated. C.B. indicates she had resumed care of P. later at times in 2017 or 2018 which are unclear from the evidence. In any event, P. was with her on June 28, 2018 until October 19, 2018 when P.'s mother, C.R.F., had a change of heart and decided that she wanted P. to live with M.R. and her husband L.R. in Marathon. C.F. signed a letter to Tara Fleet, Algoma Children's Aid Society worker advising her that she was terminating the "Family Service Agreement/Customary Care Agreement" with C.B., the Children's Aid Society (presumably Algoma CAS) and herself. The same or the next day, Tara Fleet sent a letter to C.B. advising that the mother, C.F., placed P. with M.R., the "maternal grandmother". M.R. attended at C.B.'s residence in Sault Ste. Marie and removed P. from that residence. It is unclear if police officers were present at this event, and if so for what reasons. C.B. indicates she felt she had no option but to surrender P. to M.R.

The Dynamics of the Litigation

[15] Some digression is necessary at this point to explain the dynamics of this litigation and to place the claims in the motion in some perspective.

[16] C.R.F. did not attend the motion hearing. Apparently she was in a detox facility in Elliot Lake. She did not file an Answer to C.B.'s application. She was served in December 2018, some seven months ago. She also had no evidence before the court on the motion to transfer of M.R. Any information about her comes by way of hearsay from M.R.

[17] Ms. Tara Fleet did not attend on the motion either. Nor did she file any affidavit on behalf of any party. This is unfortunate as she obviously is privy to much information about P. as her society was clearly involved in matters dealing with the child, and where, and with whom he lived.

[18] L.R. has also not filed an Answer. He is technically in default and cannot participate in this case. However, Ms. Ohman confirmed that she was representing him as well as M.R., and she may seek to file an Answer.

[19] Finally, M.R. has filed an Answer and in this Answer she has a very interesting claims. Those claim are for

"an order that C.R.F., has sole custody of the child P. born […], 2016, with care and support from the maternal grandparents M.R. and L.R."

"an order that the child P. remains residing with the maternal grandparents M.R. and L.R."

[20] It appears that M.R. is not seeking custody for herself but for the child's mother C.R.F. Her plan is to have residence of the child P. with herself in Marathon until sometime in the future when C.R.F. is able to resume her maternal role.

[21] C.B. does have a claim in her Application seeking a return of P. to her care and seeking an order of custody in favour of herself. It is this claim that triggers a consideration of Rule 5 and where is the correct place to start such application. Interestingly as well, S.B. is seeking that the court order sole custody to his mother, C.B.

Establishment of Ordinary Residence

[22] There is no evidence that, prior to October 20, 2018, P. had his residence in Marathon, or had his residence with M.R. At best, M.R. and her husband exercised access to P., at times poorly documented in evidence, picking him up from C.B.'s residence to where he was returned. It is also possible that some access may have been exercised when P. was in the care of his parents. However, it is not contended by M.R. that P. was ordinarily resident with her in Marathon until October 20, 2018.

[23] Does the ordinary residence of a child change in the foregoing circumstances? I would say it does not. P. was well established in his ordinary residence in the home of C.B. She was absolutely correct to commence her custody application in Sault Ste. Marie. She did not agree with the removal of P. from her care. Her evidence indicates that, in face of Tara Fleet's communication to her that P.'s mother had placed P. with the maternal grandmother [M.R.], she felt she had little choice but to surrender the child to M.R. C.B. started her application on November 19, 2018, one month after P. was removed from her care. There is no evidence of acquiescence on C.B.'s part, or of agreement to P.'s removal. Moreover, the correspondence of the Children's Aid Society of Algoma supports the inference that C.B. was caring for P., that she had made arrangements to arrange full time baby sitting and to adjust her work schedule, and was caring for P. "full time" since June 28, 2018. It was C.B. who was the person indicated on the Sick Kids hospital records as the hospital's contact for purposes of the child's health issues.

[24] The contention that C.R.F. was the primary and only caregiver for P. is not credible. First, she and her parenting deficiencies were the reason why the Children's Aid Society of Algoma was involved with P. Secondly, she was, at times, incarcerated due to her criminal law involvements, and could not possibly be caring for P. Thirdly, she and the father were evicted, were apparently homeless for a time, and it is implausible that she would be caring fulltime for P. Fourthly, she was drug addicted, had on her Facebook page admitted she had attempted suicide. Fifthly, she had another child with another man and was unlikely to have been residing with C.B. in her home and being P.'s primary caregiver during this relationship. In fact, most of what M.R. says about C.R.F. cannot possibly be a first hand account of M.R. It would be much better in an affidavit of C.R.F., the mother. But there is no such affidavit before the court, with no explanation why not.

[25] The case law is fairly consistent that a child's ordinary residence cannot be changed unilaterally by the removal by a child's parent to another place of residence without a court order, or the consent, or acquiescence of another person who has already established a child's ordinary place of residence.

[26] I cannot agree with the argument that P. has established a new status quo in terms of where he is ordinarily resident by virtue of effluxion of time in his present place of residence. This interpretation would invite unilateral removal of children with no consultation with others who might have an established interest in them, with little regard for the disruption that such unilateral removal might cause to such children, and with little consideration for any litigation that might ensue. It may be that M.R. provides excellent care for P., and that P. is very happy to remain with her. However, this has little to do with where a child's ordinary residence is for purposes of Rule 5(1)(b) and where a proceeding for custody or access is to be commenced. I agree, however, that ordinary residence may change if no one does anything to contest such change. This is not the case here, where C.B. has not made any concession that P. has had a change of his ordinary residence.

Ambiguities in the Evidence

[27] While there are other pieces of evidence that are of passing interest in the issue of where this case is properly started, I cannot get into these in any detail for the very good reason that they are poorly documented in the evidence. For example, C.F. had at least one and perhaps two Family Service Agreements with the Children's Aid Society of Algoma. A copy of an unsigned draft dated June 28, 2018 was in the evidence. However, no one seemed to know if it was ever signed. Similarly, there is some disparity in the role of the Children's Aid Society of Algoma. M.R. seems to believe that P. was in this society's care at some point. This society's lawyer indicates that it did not apprehend P., and that it did not direct the placement of the child. I am not sure what this means. In addition, the letter that the mother C.F. sent to Tara Fleet indicated that she (the mother) was terminating the [Family] Service Agreement/Customary Care Agreement. This seems an unequivocal admission that such agreements did in fact exist, despite the fact that no one seems able to produce a signed copy. The only signed copy that was produced was one signed by the mother and M.R. It may be styled a Customary Care Agreement but I am sceptical if it actually is one. In fact, it contains a clause that clearly identifies the document as a "template" of the Children's Aid Society of Algoma and also provides for this society's continued involvement on request, something that seems improbable with the territorial limitations of the Algoma society. My understanding is that a Customary Care Agreement requires a band council resolution. None was ever produced. In fact, there is no mention of any band as a signatory. There are no witnesses to the signatures of the mother and M.R. There is absolutely no mention of the child's father. And it was dated the day after P. was removed from C.B. This, at the very least, raises the eyebrows of this court.

The Transfer Motion Under Rule 5(8)

[28] This leaves the main motion claim of M.R., namely to transfer this case to the Ontario Court of Justice in Thunder Bay. It appears from M.R.'s counsel that Marathon is not a location where the Thunder Bay court entertains family law cases.

[29] Cases can be transferred to a different location or "venue". The authority for such transfer is Rule 5(8):

Rule 5(8) If it is substantially more convenient to deal with a case or any step in the case in another municipality, the court may, on motion, order that the case or step be transferred there. O. Reg. 114/99, r. 5 (8) .

[30] The test that the person seeking the transfer has to meet is to persuade the court that it is "substantially more convenient" to deal with the case in another municipality. In this case, that other municipality is Thunder Bay.

[31] There is a body of case law that deals with transfers under Rule 5(8) . The plain reading of the Rule confirms that convenience is the governing criterion. However, the Rule does not say whose convenience. More importantly, the Rule sets the bar fairly high for the person seeking the transfer. "Substantially" has to have some meaning. Where it lies in the continuum of convenience is to be decided on a case by case basis. What is clear is that the onus rests on the motion applicant who seeks the transfer. In this case, that is the respondent M.R.

[32] Moreover, the persuasion of the court must be done with sworn evidence. The court can take judicial notice of distances of course. Beyond that, the court relies on evidence.

[33] In this case, if I understand the arguments of counsel for M.R., the convenience is of witnesses who might be called to attend the hearing to provide testimony to the court. These are not persons who are identified by name. There is a doctor who I infer is from Marathon who M.R. is in the process of retaining for P.'s medical care. He is the only person whose name is disclosed. Otherwise, the other potential witnesses are unnamed character reference witnesses for M.R. from Marathon and/or from the Pic Mobert First Nation which is located near Marathon. Of course, the convenience would also be of M.R., L.R. and possibly C.F. depending on where she may be then residing.

[34] I note that all of these people would necessarily be travelling in any event and less than one hour more if to Sault Ste. Marie. This does not equate to substantially more convenient. Also, I cannot decide if this will mean three people or thirty people. No numbers are given.

[35] On the other hand, there is C.B. and S.B., both formal parties, that would have to travel from Sault Ste. Marie to Thunder Bay. Their convenience cannot be ignored. Although C.B. does not identify anyone by name, it is clear that Children's Aid Society of Algoma personnel will likely be called as witnesses, especially Tara Fleet, who will also need to travel to Thunder Bay. This is considerable more distance than travelling to Thunder Bay from Marathon.

[36] In a contested custody case, the information that each side has to present is a major factor in gauging convenience. Here, there is no question that much if not most of this information will be found in Sault Ste. Marie, not in Thunder Bay where the child and the parties never resided. The fact is that this case is not a contest for custody between two grandmothers. As it is currently styled, it is a claim by a paternal grandmother countered by a claim for custody by the mother advanced by the mother's paternal great aunt. I think it is clear from what evidence there is that the mother is not a suitable custodian and caregiver at this time. She is attempting to rehabilitate herself and the process is ongoing. If she is successful, this case may well dissipate. However, there is presently no assurance of her success and there is a history of maternal problems of sufficient significance that the Children's Aid Society of Algoma had to become involved, ostensibly to protect the child P.

Decision on the Transfer Motion

[37] I am not persuaded that M.R. has convinced me that she has met the "substantially more convenient" threshold to warrant transferring this case. I note that there is a presumption that the proper venue is, as I have found, Sault Ste. Marie. While this is rebuttable, M.R. will need better and more detailed evidence than she has to date to meet this pre-requisite. The motion at Tab 11 is dismissed.

Additional Observations

[38] I add that the best interests of P. have very little, if anything, to do with the venue issue. I am also troubled by the minimalist role that seems to have been assigned to P.'s father in this case, and in its history. He is not included as a signatory on any agreement that deals with his child. No one seems to have an explanation why he is being ignored. He is every bit as much a parent as is the mother. There are no existing domestic custody orders for P.

[39] Finally, I also note that this case is nowhere near ready for trial. In fact, my assessment is that the evidence is not of high quality and there seems to be some ambiguity over what claims are being made, may be made (or amended), and what roles the parties will play.

[40] I would be remiss in neglecting to indicate that P. appears to be well protected whether in the home of C.B. or in the home of M.R. It is heartening to see the commitment of a generation of essentially grandparental figures stepping up to the plate to care for a child whose parents have somehow dropped the ball. It is disheartening that what appear to be two good hearted and committed ladies are the main combatants in this litigation.

[41] I thank counsel for their arguments on these issues, and for the case law provided by them to the court.

Released: July 12, 2019

Signed: Justice John Kukurin

Footnotes

[1] Rule 14 (17) Evidence on a motion may be given by any one or more of the following methods:

1. An affidavit or other admissible evidence in writing.

Rule 14(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. O. Reg. 114/99, r. 14 (18) .

Rule 14(19) The affidavit may also contain information that the person learned from someone else, but only if, (a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true.

[2] Marathon is 187 miles (301 km) from Thunder Bay and 225 mi (411) km from Sault Ste. Marie.

[3] No explanation was given why two letters of the same date. One omits two full paragraphs.

[4] The paternal grandmother, C.B., sets out her understanding of where the child P. was since his birth in her application. While an Application is a pleading and is not sworn evidence, this chronology is a "Family History" which is something demanded by the Application form itself, and ought to be relied upon by the court until some sworn evidence supersedes or supplants the Family History. I note that both Answers filed disputed the Family History as set out in the Application. This court also takes note of the disputes and relies on the Family History disputes in the same manner as it relies on the Family History in the Application. To date, this Family History/Chronology of C.B. is the most succinct and detailed information about P. Whether it is accurate is still to be tested by evidence.

[5] These claims by parties for custody to persons other than themselves raises the issue of s. 21.1 of the Children's Law Reform Act, and whether the police society and court checks are needed and for what person(s) are they needed.

[6] See for example Van Roon v. Van Roon, [2013] O.J. No. 2282 (Sherr Ont CJ) where a custody case was transferred from Toronto to Guelph, the place of ordinary residence of the children, after the mother left Guelph with the children without the father's acquiescence or consent.

See also Alcine v. Murray, 2018 ONSC 3856, [2018] O.J. No. 3274 (Kershman Ont SCJ) at paragraph 30: "There is case law that a recent, unilateral move will generally not be accepted as 'ordinarily resides' as defined. Those three cases are: A.A.B v. A.P.J., 2012 ONCJ 546 at paras. 59-63; Benson v. Forsyth, 2012 ONCJ 304 at paras 15-29; and Sangha v. Sangha, 2014 ONSC 4088 at paras 47-48."

See also Duseigne v. Donais, 2006 ONCJ 123, [2006] O.J. No. 1453 (Bishop Ont CJ) where the court declined to order a custody case transferred from Dryden where it was started by the mother, to London, where the children had lived two years prior. The judge's finding was that the ordinary residence had changed after the children resided in Dryden for two years with the implied consent or acquiescence of the father.