Court File and Parties

Court File No.: Brampton 299/12 Date: 2012-06-19 Ontario Court of Justice

Between: Brent Seyffert, Applicant — And — Nikita Bach, Respondent

Before: Justice P.W. Dunn

Heard on: 13 June 2012

Ruling on Motion released on: 19 June 2012

Counsel:

• Ms. Barbara J. McLeod, for the applicant
• Ms. Candice L.M. Bernard, for the respondent

Judgment

P.W. DUNN, J.:

Background

[1] Brent William Seyffert, 28, was the applicant and Nikita Bach, 25, the respondent. Mr. Seyffert's application sought custody of the parties' child, Ciara Brooklynn Grace Seyffert (Ciara), born 19 January 2008. The application was opposed by the respondent. An initial case conference was held on 15 May 2012.

[2] The respondent brought this motion dated 11 May 2012 to transfer proceedings from Brampton to Stratford. Both parties were very sincere in their attempts to have a jurisdiction closer to their residence that would be just and fair. The difficulty for Mr. Seyffert and Ms. Bach was that the facts were not easily determinable under the rubrics of clause 5(1)(b) nor subsection 5(8) of the Family Law Rules, through no fault of the parties.

Residential History

[3] In Mr. Seyffert's affidavit sworn 11 June 2012, he set out in Schedule B the parties' residences before and after their separation. This schedule was not substantially refuted by the respondent, although through the affidavit of Rose Bach, sworn 8 June 2012, there were allegations of the parties residing for periods in Stratford that did not coincide with the applicant's residential claims. Where the schedule of the applicant was not opposed by the respondent, I will rely on that proposed by Mr. Seyffert. Since Ciara was born 19 January 2008, she was conceived approximately in April 2007. At that time, the parties may have lived in Sebringville, Ontario, near Stratford (the applicant's schedule said the parties lived in Sebringville from mid 2007 to March 2008). When Ciara was born on 19 January 2008, the parties did live in Sebringville.

[4] After the child's birth, the parties resided in Brantford from 30 March 2008 until their separation on 30 March 2009.

[5] Then according to the applicant's affidavits, within a month after the separation the parties agreed that Ciara would live one week with the applicant and one week with the respondent. This arrangement was confirmed in a written agreement between the parties dated 31 July 2009. Both parties signed the agreement and it was witnessed apparently by an independent third party. There was a further confirmatory agreement between the parties on 1 August 2011 still witnessed by the same person. The agreement stated:

We both agree our time with Ciara is very important and we will continue to cooperate sharing Ciara on a week to week basis.

Respondent's Residences After Separation

[6] After the separation, each party lived in various residences. The respondent resided:

• From 30 March 2009 to 4 July 2009, in Brantford with her father and step mother;
• From 4 July 2009 to 1 August 2010, in Brantford on her own;
• From 1 September 2010 to 1 October 2010, in Stratford with her grandmother;
• From 1 October 2010 to March 2011, in Stratford with her father and step mother;
• From March 2011 to February 2012, in Stratford with a boyfriend, but that relationship was terminated;
• From February 2012 to 1 April 2012, in Sebringville with her father and step mother;
• From 1 April 2012 to the present, in Stratford with Cory Bernier, her current boyfriend and with the mother of Cory Bernier.

[7] Hence, Ciara's association with Stratford has been in two periods:

• First Period: from 19 January 2008 to 30 March 2008 (2.5 months after the birth of Ciara);
• Second Period: from 1 September 2010 to the present, 13 June 2012 (1 year, 10 months).

The first period for Ciara's residence at or near Stratford can be considered insignificant, because the baby was not yet three months of age and the respondent lived in other places after leaving Stratford. The second period of less than two years had Ciara placed in five residences. The only consistent features of the infant's association with Stratford were her physician and her maternal and paternal relatives.

[8] At or near Stratford at various times were the respondent's father and step mother and grandmother. The applicant's parents were also in Stratford, but Mr. Seyffert indicated they were moving to Mississauga. The parties were raised in Stratford and it was there that they began their relationship.

Applicant's Residences After Separation

[9] After the separation in March 2009, the applicant also had changes in residence but not as many as with the respondent:

• From 30 March 2009 to 1 July 2009, in Brantford with friends;
• From 1 July 2009 to 1 July 2010, in Oakville with a friend;
• From 1 July 2010 to 1 March 2012, in Oakville with Dierdre Livingstone, girlfriend, and Zander, age six, Ms. Livingstone's son;
• From 1 March 2012 to the present, in Mississauga, the applicant, Ms. Livingstone and Zander moved to a residence close to their recent former Oakville abode.

Because of the proximity of the two residences for the applicant in Oakville and Mississauga, I shall consider that the applicant's residence is in Peel Region. Hence, Mr. Seyffert has lived in Peel Region (or Oakville) since 1 July 2009, which was about three months after the separation. The respondent argued that the applicant only moved to his Mississauga residence on 1 March 2012, which would minimize the length of his association with Peel Region. However, I find he lived in the area from 1 July 2009, or almost three years. I believe it is fair to equate the applicant's Oakville residence with that in Mississauga, just as it is reasonable to consider the respondent's Sebringville residence as being one in Stratford.

[10] Because Ciara has been living a week about with each party since after the separation, that means the child has been with the father during his access while living in either Oakville or Mississauga since 1 July 2009 or almost three years. Ciara was in her mother's care in the Stratford area since 1 September 2010 or a year and ten months.

Child's Connections to Peel Region

[11] While living with the applicant, Ciara also had a primary care physician and the only dentist who has cared for her. Mr. Seyffert enrolled Ciara in a day care program (while he worked) in Oakville and this placement has been extant since the fall of 2010. Mr. Seyffert's affidavit sworn 23 May 2012 in paragraph 7 stated:

I take her to the same daycare (even though the applicant resides now in Mississauga) because it offers her stability. She really likes the owner of the daycare and she has friends there. The owner of the daycare is very stable and trustworthy…

Ms. Livingstone's son Zander also attends this day care facility.

Applicable Legal Framework

[12] Which court should assume jurisdiction, Stratford or Brampton? Clause 5(1)(b) of the Family Law Rules states:

…a case shall be started…in the municipality where the child ordinarily resides…

This clause is not helpful because Ciara "ordinarily" resides with the applicant in the Oakville-Mississauga area and with the respondent in Stratford for equal amounts of time.

[13] The other clause to be considered is clause 5(8) which states:

If it is substantially more convenient to deal with a case…in another municipality, the court may…order that the case be transferred there.

It would be inconvenient for each party if the case was to be heard in the other party's municipality. Ms. McLeod for the applicant and Ms. Bernard for the respondent argued strongly as to why it would be substantially more convenient for the case to proceed in her respective client's jurisdiction. Each lawyer highlighted the facts to support her client's position in as strong a light as possible. However, due to the nature of this case, where the child had some connection to each municipality, it could not be argued successfully that one municipality or the other offered a "substantial convenience".

Analysis of Respondent's Arguments

Ms. Bernard submitted that Stratford should be the appropriate venue because:

(1) Ms. Bach did not drive and could not rely on regular transportation to reach Brampton.

However, Ms. Bach did not work, so she was available for Brampton court appearances. She had the relatives in or near Stratford whom she relied on to promote Ciara's ties to Stratford. Surely they would assist in some way with transportation. Also case conferences might allow Ms. Bach's attendances by telephone or video conferencing.

(2) Ms. Bach is pregnant and no further particulars were made available, other than the fact that the respondent has gone to a hospital over the pregnancy.

The respondent averred that transportation to Brampton may be stressful for her. I do not see that this is a factor to be considered in choosing a venue. Litigation often occurs when a party is pregnant. Court schedules are flexible and Ms. Bach's gestation can be accommodated.

(3) Early court attendances in Stratford are available.

This point is arguable.

(4) The best information about Ciara is available in Stratford from friends, neighbours, health professionals.

This is only fifty per cent true, because the little girl was in another environment for the other fifty per cent of the time she was with the applicant. Also when Ciara was with the respondent in various residences at or near Stratford, I am not convinced she had a close affinity with the same people in Stratford because of the respondent's frequent moves.

(5) The presence of Ciara's relatives in Stratford was a reason for the Stratford court to hear the case.

Although the respondent mentioned the child's relatives in Stratford, it was not clear just what involvement these relatives had with the child.

(6) Ms. Bach's previous Application in Stratford dated 30 June 2011.

Ms. Bach previously launched an Application for custody, dated 30 June 2011 in Stratford, in which she claimed custody and child support, and Mr. Seyffert was the respondent in that action. The 30 June 2011 Application did not get served on Mr. Seyffert and he did not know about the claim.

[14] I find that the fact a prior Application was simply started in Stratford is not persuasive that Stratford one year later should be the proper jurisdiction. A lot can change in the year since 30 June 2011.

(7) Ms. Bach received Ontario Works in Stratford.

That is a personal matter for Ms. Bach. That relationship does not influence where a case should be heard, bearing in mind that Ciara was only with the respondent fifty per cent of the time and the issue of custody is a primary concern in this case.

(8) There was conflicting evidence about the child's school enrolment for September 2012.

(A) The respondent enrolled Ciara on 23 November 2011 at Hamlet Public School in Stratford. Ms. Bach contended that the applicant was present and consented to that registration. It was curious that on the school Form 302A Student Registration, there was no mention of Mr. Seyffert's name, especially since he was present and according to Ms. Bach very interested in that school venue.

(B) The applicant believed the respondent consented to Ciara attending a Mini School in Clarkson (Mississauga), and the child was registered there by Mr. Seyffert on 26 April 2012.

[15] I do not need to refer to Ms. McLeod's arguments given the following findings.

Decision

[16] As mentioned previously, there was no substantial convenience for the proceeding to be heard in one or the other jurisdiction, given the unique facts of this case. Nevertheless a decision needed to be made. The case will remain in Peel Region for these reasons:

(1) Legal Representation Continuity

If Stratford were to be the municipality to hear the case, there would almost certainly have to be a change in legal representation for both parties. At present the applicant and respondent have very capable lawyers who are particularly familiar with the facts, and they are available to represent their clients in Brampton. Even presuming the parties could get new lawyers in Stratford to act for them, preparation time for the new counsel would be time consuming and duplicative. Ms. Bach spoke of her difficulty in consulting with Ms. Bernard in Brampton, but surely that concern can be remedied by telephone conferencing.

(2) Child's Connections in Peel Region

The applicant contended that Ciara has connections in Peel Region:

• (i) She has a primary care physician and a dentist;
• (ii) Ciara has a long standing day care arrangement.
• (iii) Ciara is in a close relationship with Ms. Livingstone, the applicant's partner, and her son Zander. Since 1 July 2010 (almost two years), Ms. Livingstone and Zander have lived in Oakville-Mississauga since the relationship started.

In contrast, the respondent has only been living in a relationship in Stratford with Cory Bernier since 1 April 2012 (not yet three months). Apparently Mr. Bernier has two children aged seven and eight and there was no mention in the affidavits of Ciara's relationship with those children.

(3) Financial Burden

There would be a serious financial burden on the applicant if court were to be in Stratford because in addition to his facilitating (and paying for) all regular access exchanges in Stratford, he would also be liable for the transportation costs, and time away from his job in travelling to court in Stratford. In contrast the only expense for Ms. Bach would be her occasional trips to Brampton for court.

(4) Child's Association with Jurisdictions

The child's association with Peel Region was somewhat larger than her connection with Perth County.

Disposition

[17] In the result, the respondent's motion dated 11 May 2012 (Volume 1, Tab 5, Continuing Record) seeking to transfer proceedings to Stratford is dismissed. The Brampton Family Court will maintain jurisdiction.

[18] It is expected that the next request by a party or parties will be to seek leave to bring a motion for temporary custody and determining where the child will attend school in September 2012.

[19] Lest there be any perception of bias in this ruling (which I deny), I recuse myself from hearing any motion by either party relating to temporary custody and school location.

Released: 19 June 2012

Justice P.W. Dunn