COURT FILE No.: Elliot Lake, File No. 38-11

DATE: 2012-02-07

Citation: T.W. v. L.B.1, 2012 ONCJ 87

ONTARIO COURT OF JUSTICE

BETWEEN:

T.W.

Applicant

— AND —

L.B.1, R.B.

Respondents

Before Justice R. Villeneuve

Heard on January 16, 2012

Endorsement on a Motion, released (verbally) on January 30, 2012

Jeffery Wilson ....................................................................................................... for the applicant

Douglas Kearns ………………………………………………… ……………agent for the respondents

Present: T.W., her counsel, Jeffery Wilson; L.B.1.

Douglas Kearns as agent for both respondents, L.B.1, R.B..

VILLENEUVE, J.:

[1] This endorsement pertains to the motion brought by the applicant T.W. which can be found at Tab 17 of volume 1 of the continuing record. The motion seeks an order transferring the applicant’s motion to change a final order to Brantford, Ontario, where the case can be combined and heard with action #C-471/11 of the Ontario Court of Justice in Brantford.

[2] By way of background, the applicant has brought a motion to change the order of the Honourable Mr. Justice Thibideau dated February 1, 2005 which can be found as an exhibit to the affidavit of L.B.1 at Tab 10 of volume 1.

[3] Justice Thibideau’s order granted the respondents in this action, L.B.1 and R.B. custody of the children P.B. born […], 1999 and L.B.2 born […], 2000.

[4] Justice Thibideau’s order arose as a result of the intervention by the Children’s Aid Society of Haldimand-Norfolk wherein the aforementioned children were apprehended from the care and custody of the respondent T.W. and the children’s father P.B.. The children were ultimately placed with L. and R.B. in 2003 and they were granted custody of the children by Justice Thibideau on February 1, 2005. At that time, Mr. and Mrs. B. resided in the town of Dunnville which is in the territorial jurisdiction, I understand, of the Brantford, Ontario courts. In 2008, Mr. and Mrs. B. relocated to Elliot Lake with their two granddaughters and continue to reside in this community.

[5] M. T.W., by way of a motion to change the order of Justice Thibideau, brought this motion which can be found at Tab 1 of volume 1 returnable on October 17, 2011. Since that time there has been considerable litigation on this file considering the fact that this file is but some three and a half months old.

[6] M. T.W. resides in the residence of H.V. and K.V.. Their residence is located within the territorial jurisdiction of the Brantford court.

[7] The B. oppose the relief sought in the applicant’s motion to change and it is evident from the reading of the material that one of their primary concerns is the influence of the V.’s upon M. T.W.. The material filed to date speaks of the animosity between the parties and the distrust that the B. have for the V..

[8] The motion at Tab 17 was precipitated by a recent development in southern Ontario. M. T.W.’s third child, P., was recently apprehended by the Children’s Aid Society of Haldimand-Norfolk. The child has made various allegations involving mental and physical abuse at the hands of Mr. H.V. to the point where the local Children’s Aid Society felt that there was sufficient risk to apprehend the child. At this particular time, it is my understanding that the child has been returned to his mother, M. T.W., on the condition that she not reside in the V. residence. She is in fact residing with her mother pending further developments in the child protection case.

[9] The motion at Tab 17, the subject of this endorsement, seeks to transfer the applicant’s motion to change Justice Thibideau’s final order to southern Ontario on the grounds that the preponderance of evidence to be relied upon in adjudication of M. T.W.’s motion to change a final order, is located in southern Ontario. Counsel for M. T.W. argued that pursuant to rule 5(8) of the Family Law Rules, that it would be substantially more convenient to deal with the motion to change Justice Thibideau’s final order to Brantford so that this motion could be heard in conjunction with the C.F.S.A. proceedings instituted there with respect to the child, P. Rule 5(1) of the Family Law Rules states as follows:

Where Case Starts 5.1 5(1) Subject to Section 21.8 and 21.11 of the Courts of Justice Act (Territorial Jurisdiction – Family Court), a case shall be started:

a) In the municipality where a party resides;

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, (i) section 22 (Jurisdiction of an Ontario Court) of the Children’s Law Reform Act, and subsection (ii) subsection 48 (2) place for child protection hearing) and subsection 150 (1)(place for adoption proceedings) of the Children and Family Services Act; or

c) In a municipality chosen by all parties, but only with the court’s permission given in advance in that municipality.

[10] The children have ordinarily been resident of Elliot Lake since 2008. The respondents argue that they have established a life for the children in this municipality and that evidence pertaining to their upbringing, schooling, friends, etc. exists in the City of Elliot Lake and not in Brantford.

[11] Counsel for M. T.W. makes the argument that the respondents Mr. and Mrs. B., have in support of their response to the motion to change Justice Thibideau’s final order, cited primarily their concerns with Mr. and Mrs. K.V., their household, and their influence upon M. T.W.. Accordingly, the applicant’s counsel submits that given that the V. reside in Brantford, Ontario and that their family background will be an important piece of evidence in the motion to change a final order that the proceedings ought to be transferred to the jurisdiction in which they and M. T.W. reside.

[12] Counsel for the applicant further submits that by doing so, duplicity of proceedings may be avoided such that this motion to change could be addressed by the court while addressing the child protection concerns of the Children’s Aid Society of Haldimand -Norfolk which primarily are focused upon the V..

[13] Counsel for M. T.W. submits that the B. have made Mr. and Mrs. K.V. central figures in this litigation on the motion to change. Furthermore, counsel has indicated that Mr. and Mrs. B. have expressed an intention to become involved in the child protection proceedings in southern Ontario as regards the child, P. That being the case, this motion to change should be dealt with by one court in conjunction with the child protection proceedings involving P. as the evidence will essentially be the same.

[14] The respondents Mr. and Mrs. B., through their counsel, deny any intention in getting involved in the child protection proceedings involving the child, P. in Brantford. They seem to be prepared to offer their home as an alternative to the court should a return to the mother not be possible. Beyond that, they have no intention of intervening in those child protection proceedings.

[15] It is important to keep in focus the burden placed upon the applicant in her motion to change Justice Thibideau’s final order. In order to convince a court of same, the applicant must show a material change in circumstances from the time that the court order was made in 2005. In addition, we are governed by the “best interests” test. The test to be met by the Society in child protection proceedings in Brantford involves a risk to the child, P. While “best interests” of the child may ultimately factor in the court’s decision in those proceedings it will ultimately be called upon to determine whether a risk to the child, P. exists and if so whether that risk can be managed in the care of the applicant in the residence which she proposes to live in.

[16] I see no merit to dragging the respondents into the applicant’s litigation with the Children’s Aid Society in Brantford. The children, the subject of the 2005 custody order have been resident in Elliot Lake since 2008. They have been in the care of the respondent since 2003. One can only conclude that the preponderance of evidence based on the burden imposed upon the applicant in any motion to change a final order would primarily exist in Elliot Lake. Things such as the family home here in Elliot Lake, the children’s education arrangements, friends, ties to the community, are all factors which a court will ultimately decide in adjudicating upon the motion to change the final order of 2005. That evidence exists here in Elliot Lake and not in Brantford.

[17] Clearly, the V. and the applicant’s decision to continue to reside in their residence will be a factor to be considered by this Court but it is but one factor to be considered.

[18] I am not convinced that Rule 5 (8) of the Family Law Rules in these circumstances would be applicable.

[19] I have reviewed the decisions of Perkins, J. in Rosenthal and Rosenthal [2000] O.J. No. 2664 and Warkentin, J. in Swearengen and Swearengen [2009] O.J. No. 517.

[20] With all due respect, the facts in those cases can easily be distinguished from this case such that I am not persuaded to follow those decisions.

[21] Accordingly, the applicant’s motion at Tab 17 shall be dismissed. The applicant’s motion to change at Tab 1, volume 1, shall proceed in this jurisdiction.

[22] There were no representations made on costs. I will receive her written argument on costs within 30 days of the release of this decision. Should no submissions be made in writing on costs, there shall be no costs.

Released: verbally, January 30, 2012

Written endorsement released February 7, 2012

Signed: “Justice R. Villeneuve”