Court File and Parties

Court File No.: Brampton 241/12 Date: 2012-05-16 Ontario Court of Justice

Between: Kelly Benson Applicant

— And —

Richard Forsyth Respondent

Before: Justice P.W. Dunn

Heard on: 10 May 2012

Reasons for Judgment released on: 16 May 2012

Counsel:

• Peter E. Dubas, Esq. for the applicant
• Sara Langlois, student-at-law with Kenneth J. Conroy, Esq. for the respondent

Judgment

P.W. DUNN J.:

[1] Kelly Benson, aged thirty-one, brought an Application dated 5 March 2012 in which Richard Forsyth, aged twenty-nine, was the respondent. Ms. Benson sought custody of Adam Alexander Forsyth, born 8 December 2010, as well as child support and a restraining order against the respondent.

[2] Mr. Forsyth filed an Answer dated 3 April 2010 in which he claimed joint custody, with primary residence with himself and he sought a transfer of the case to the Ontario Court of Justice in Pembroke.

[3] However, presently before this court was the respondent's motion dated 11 April 2012 (Vol. 1, Tab 6) seeking inter alia a transfer to the Pembroke court.

Background Facts

[4] In considering the parties' history, both have relatives in Peel Region. They started to date in Mississauga in 2009, and by October 2009, they began cohabitation in that city.

[5] Mr. Forsyth is also the biological father of Damien Forsyth, born 8 December 2007, who lives with his mother and stepfather in Cobourg, Ontario. Mr. Forsyth has joint custody, with access on the first weekend of each month and on alternate holidays.

[6] The respondent is a private in the Canadian army. He accepted a three year contract that required him to relocate to Petawawa, Ontario as a transport driver.

[7] Ms. Benson would have become pregnant with Adam around April 2010 when the parties still lived in Mississauga. They moved to Petawawa on 17 August 2010 and lived in a rented house at 146 Paardeburgh Blvd., Petawawa. Mr. Forsyth described the residence as having three bedrooms in a safe, family-oriented neighbourhood on base.

[8] From October 2010 onwards, the applicant used the above address as her primary residence for receiving government documents, such as a driver's licence and for other purposes.

[9] Adam was born in the Pembroke Regional Hospital, near Petawawa on 8 December 2010, and was baptized in Petawawa on 26 June 2011. Mr. Forsyth filed a copy of the Pembroke Regional Hospital Card showing Adam residing at the 146 Paardeburgh address.

[10] Mr. Forsyth's material showed that Adam's early milestones were celebrated in the Petawawa/Pembroke area; his first birthday, hair cut, his first crawl and his first word. Adam's family doctor and daycare provider were also in the area.

[11] It appeared the parties had a regular social life in Petawawa and acted as if it was their home. One Jennifer Hennick swore an affidavit on 10 April 2012 (Vol. 1, Tab 12). Ms. Hennick stated that:

• Both parties lived at the 146 Paardeburgh Blvd. address and were her clients;
• Ms. Benson made purchases through Facebook and Ms. Hennick delivered the acquired goods to the applicant;
• The parties attended a social gathering next to their home on Paardeburgh Blvd. on 9 February 2012.

[12] Mr. Forsyth exercised access to his son Damien in Petawawa and Damien and Adam were raised as brothers. Ms. Benson being present in the home, must have had the occasion to act as a stepmother to Damien.

[13] In the fourteen months the parties lived in Petawawa, Ms. Benson and Adam returned without incident to visit family in Mississauga on four or five occasions. The fact that those visits occurred was later to prove a significant factor in support of the respondent's position.

The Pivotal Events

[14] In November 2011, the respondent started an emergency custody application in Pembroke because,

…the applicant threatened to permanently take Adam away from our home without my consent. I was about to leave home on [military] exercise and was afraid I would come home and my son would be gone.

I withdrew my application after the applicant assured me she would not leave with our son and that we decided we would work on our relationship. We continued to reside together throughout…

(Respondent's affidavit sworn 8 May 2012)

[15] Saturday 11 February 2012 was a pivotal day in the parties' relationship. With Mr. Forsyth's knowledge and consent, Ms. Benson and Adam left to visit the maternal grandmother and the respondent's relatives in Mississauga. Ms. Benson also had to deal with her personal bankruptcy. The applicant said she would return by Friday 9 March 2012, which was significant because that was to be an access weekend for Damien and for Damien and Adam to be together. Ms. Benson only took clothing for a short trip for herself and Adam. All other personal possessions were left in their house in Petawawa.

[16] During this visit in Peel Region, the applicant gave the respondent the impression she was definitely returning. Mr. Forsyth only learned that was not going to be the case when on 9 March 2012, he was served with Ms. Benson's Application.

[17] Apparently Ms. Benson became unhappy in her relationship with the respondent, and at some point decided to relocate with Adam to Mississauga.

The Applicant's Claims

[18] In her affidavit sworn 3 May 2012 (Vol. 1, Tab 9), Ms. Benson claimed she:

• Was terrified of the abusive respondent;
• Was forced to live in a military compound with guards;
• Was held prisoner at the residence in a military establishment;
• Had no one to help her continue to reside in Mississauga, before the parties moved to Petawawa;
• Tried to escape from the residence on several occasions, but could not do so because she had no money;
• Feared imminent danger to Adam's safety because of the respondent's violence. She also claimed he kept weapons and ammunition at the residence that Adam could reach.

[19] Ms. Benson's affidavit contained letters from her friends who purported to have seen abuse by the respondent to the applicant. I put little weight on these letters because:

1. they are in an unsworn form;
2. they are conveniently corroborative of the applicant's position that Mr. Forsyth was a "monster" (See the applicant's affidavit sworn 3 May 2012, paragraph 3.);
3. most importantly, custody considerations are not relevant to the jurisdictional issue before this court.

Legal Framework

[20] Mr. Dubas urged the court to find that the child ordinarily resided in Peel Region, and that this court should assume jurisdiction. Ms. Langlois made the argument in favour of Pembroke.

[21] Rule 5(1) of the Family Law Rules applies. It states that in a case dealing with custody or access, the proper forum is the municipality where the child ordinarily resides.

[22] Although the question is very much fact based, the case of Re: D.J.C. and W.C., (1975) 8 O.R. (2d) 310, 20 R.F.L. 264, 57 D.L.R. (3d) 694 set out guiding principles. The following questions are appropriate to ask:

Analysis

In what jurisdiction has Adam predominately resided?

[23] Adam presently is one year, five months old. After his birth in Petawawa, he spent the first year and two months in that location. He has now been in Peel Region for three months. Yes, fourteen months is a short time relatively speaking. Yes, he was too young to have made any personal connections in Petawawa, but nevertheless, the answer to the question is that Adam predominately resided in Petawawa region for most of his young life.

[24] Because of the boy's early age, he had not personally connected with anyone – no classmates, no school sports or activities that one thinks of in considering a person's connection to a particular community. However, there are others who had a connection with him – his physician, his daycare provider and friends of the parties and other persons who could testify about how the parties were as caregivers and persons.

What is the forum of convenience for the resolution of the issue?

[25] It would be costly potentially for a party if the case was to be heard in a jurisdiction other than where he or she lives. The non-residing party would have to transport witnesses to the other jurisdiction. However, I would not consider that the applicant would bring more than a very few witnesses to Pembroke, if that was where the case was to be tried, because people in Peel Region never saw both parties care for Adam, at least not for any extended period of time. On the other hand, if the case is heard in Brampton, Mr. Forsyth may have to bring several witnesses to this jurisdiction, because there likely would be persons in Petawawa who could comment on each party's care of their son.

[26] There is another factor favourable to the case being tried in Renfrew County. Mr. Forsyth's work requires him to travel for one or two or three week forays. If he attends court in Brampton, his work schedule will be impeded. On the other hand, the applicant does casual work in sales and restaurants. Her work would not suffer a serious interruption if the case is in Pembroke and she could reside with friends in the area.

[27] Finally, there is the factor that the parties should be able to obtain early court hearings in Pembroke, because that venue is not as overloaded as the family court in Brampton. That is an important economic factor that should concern both parties and be of great importance to Adam, because early decisions on his future are clearly in his best interests.

How did the child come before the court's jurisdiction taking into account the equity of compelling the original parent to come to the new jurisdiction for a hearing?

[28] The syntax in this question is not easily comprehensible, but I think that what is being asked is how did the case come before the Brampton court? The starting point must be that Mr. Forsyth did not consent to Adam's removal from Petawawa by Ms. Benson. He only agreed to his son being away for a brief visit and he understood that Ms. Benson had committed to returning with Adam to their home in Petawawa. Likewise Mr. Forsyth cannot be considered to have acquiesced to Adam living in Mississauga. The respondent was served with the Application on 9 March 2012. Even before the first return date of the Application on 31 May 2012, he brought this motion presently before the court. He scarcely could have moved with greater dispatch.

[29] What compelled the respondent to attend this Brampton court was the applicant's decision to try to make a case for Peel Region being the child's ordinary residence. Ms. Benson should have brought her Application in Pembroke. This court should not reward Ms. Benson's deceitfulness to the respondent by permitting her case to proceed in this region.

Order

Order to transfer this case to the Ontario Court of Justice in Pembroke. 31 May 2012, 10:00 a.m., courtroom 209 is vacated in this court. The Pembroke court is requested to set a case conference date for the Application and advise the parties.

[30] The court is mindful that it only considered the request in the respondent's motion for a transfer to Pembroke. There was no argument on the other requests in the motion, because time did not permit it and the other demands should be put to the court that will have jurisdiction over the entire case.

Costs

[31] I wish to compliment Mr. Dubas in presenting the applicant's case in as favourable a light as possible. I thank Ms. Langlois also for her careful preparation. Any request for costs on this motion must be served on opposing counsel and filed with the Judicial Secretary, Ruth Evans, by fax at 905-456-4833, by 6 June 2012. An Answer to a Request for Costs must be served and filed in the same manner by 27 June 2012. If the moving counsel wishes to Reply to the Answer, the Reply must be served and filed by 19 July 2012.

Released: 16 May 2012

Justice P.W. Dunn