COURT FILE NO.: FS-06-56958-00 Brampton DATE: 20130626
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NICOLE CATHERINE AGNEW
Applicant
- and -
DENI VIOLO
Respondent
Counsel: Aaron Franks for the Applicant D. Smith for the Respondent
HEARD: June 13, 2012
DECISION
D.L. CORBETT J.
[1] Mr Violo has applied to vary the final consent order of McKenzie J. dated October 16, 2009, respecting primary residence of the parties’ six year old daughter, Sophia (D.O.B. February 15, 2006). Dr Agnew moves to transfer the variation application to Manitoba.
[2] This is a high conflict case. The parties were married for about a year. Shortly after Sophia was born, the parties separated and Dr Agnew moved to Manitoba with Sophia. Dr Agnew commenced divorce proceedings shortly afterwards, in 2006. She did so in Ontario, because she did not meet the residency requirements to proceed in Manitoba.[^1]
Test for Transfer of Proceedings
[3] Mr Violo’s variation application is brought under s.6(3) of the Divorce Act, which provides:
Where an application for a variation order in respect of a custody order is made in a variation proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the variation order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.[^2]
[4] The “most substantial connection” test is a condition precedent for the exercise of the court’s discretion under s.6(3). Only if the child is “most substantially connected” to the proposed jurisdiction may the court consider exercising its discretion to transfer proceedings to that jurisdiction. In exercising this discretion, the court asks whether the transfer of the variation application is in the best interests of the child,[^3] and whether a transfer would impede the proper administration of justice.[^4]
Step 1: Sophia Is “Most Substantially Connected” to Manitoba
[5] Sophia has lived in Manitoba for six years, almost her entire life. Her mother, her mother’s family, her teachers, her health care professionals and her friends live there. Manitoba is Sophia’s home.
[6] Ms Smith rightly concedes that the condition precedent in s.6(3) of the Divorce Act is met. This much is obvious.
Step 2: Transfer of the Variation Application Is In Sophia’s Best Interests
[7] Ms Smith argues that Sophia also has a “substantial connection” to Ontario, where she spends a week per month with her father and his family, where the family law proceedings have taken place, and where there are many witnesses relevant to the variation application.
[8] Sophia has resided in Manitoba for over six years.[^5] She lived in Ontario for only a few weeks after her birth. I appreciate that Sophia’s residence was switched to Manitoba by the unilateral choice of Dr Agnew. But that was many years ago. That is now the settled status quo and it is reflected in the consent order from 2009.
[9] I agree with Ms Smith that transfer is not a “foregone conclusion” just because Sophia is “most substantially connected” to Manitoba.[^6] There is still room for the exercise of judicial discretion.[^7] This said, with respect, there really are no good reasons to leave this case in Ontario. Sophia has a much stronger connection to Manitoba than to Ontario.
[10] I accept that the following is a non-exhaustive list of factors that have been used in transfer cases:
(1) The presence of the child in the jurisdiction;
(2) The length of residence in each competing jurisdiction;
(3) The strength of the child’s bonds to persons and circumstances in each province;
(4) Whether the removal was wrongful;
(5) Whether the removal was justified in light of abuse directed at the child by the parent remaining in the other province;
(6) The behaviour of the parents towards compliance with interim custody orders;
(7) The province in which evidence of the child’s present circumstances is most readily available;
(8) The province in which the issue of custody can be most easily and cheaply determined.[^8]
[11] The first three factors strongly favour Manitoba. The fourth and fifth factors are not raised on this motion, and in any event would be much less significant as a result of the effluxion of time.[^9] The sixth factor is not raised in this case, and would be less important in an application to vary primary residence than an access variation and/or enforcement proceeding. The seventh factor favours Manitoba, though there are some important witnesses in Ontario. So it is more evenly balanced than the other factors. The eighth factor requires the court to assess the stage of proceedings and not the relative hourly rates of counsel in different jurisdictions. On this analysis, this factor is neutral. If I am wrong in my analysis of this factor, then clearly it would be less expensive to proceed in Manitoba, where hourly rates are lower than in the Greater Toronto Area.
[12] On balance, the factors strongly favour Manitoba over Ontario. I find that it is in Sophia’s best interests for the proceeding to be transferred to Manitoba.[^10]
Step 3: The Transfer Would Not Impede the Proper Administration of Justice
[13] It is true that the parties have been before the Ontario courts since 2006. Having commenced the divorce proceedings in Ontario, Dr Agnew saw them through to the end, resulting in the order of McKenzie J. in 2009, and my order in August 2011.[^11] The proposed variation application is a new proceeding. No steps have been taken in it, aside from giving notice of it and this motion to transfer. This is not a case like S.J.H. v. M.E.H., where the proceeding had been pursued for several years in Ontario, a trial date had been set, and then a motion was brought to transfer the matter to Alberta.[^12]
[14] The parties currently have a judge seized of this matter (me). Ms Smith argued that this affords the parties a considerable procedural advantage. That argument has been superseded by events beyond the parties’ control: for practical and personal reasons, I am not able to continue to be seized with the case.[^13]
[15] Further, the court presumes that other Canadian jurisdictions are well able to adjudicate claims under the Divorce Act in a timely and just manner. This is a strong presumption, not easily displaced, and it is undisturbed by the presence of case management in some jurisdictions and not others.[^14]
[16] The Ontario courts have a history with this family, it is true. But the courts of Manitoba can verse themselves in this history as easily as a fresh judge in Ontario.
[17] There is no basis to suggest that Dr Agnew is “forum-shopping”. Dr Agnew has enjoyed good success in the mediated results of the family law proceedings over the past six years. I became seized of these proceedings at the joint request of the parties in August 2011. There is no reason to believe that Manitoba would afford Dr Agnew a substantive advantage in these proceedings.
[18] For all of these reasons I find that it would not impede the proper administration of justice to transfer this case to Manitoba.
Conclusion and Order
[19] I find that Sophia is “most substantially connected” to Manitoba, and that it would be in her best interests for the variation application to be transferred to Manitoba. Doing so will not impede the proper administration of justice. Therefore, Dr Agnew’s motion is granted, and Mr Violo’s variation application is transferred to Manitoba.
[20] If the parties cannot agree upon costs then they shall provide me with brief written submissions, Dr Agnew’s by July 25, 2013, and Mr Violo’s within two weeks thereafter.
[21] I am obliged to Mr Franks and Ms Smith for their able submissions.
D.L. CORBETT J.
Released: June 26, 2013
COURT FILE NO.: FS-06-56958-00 Brampton DATE: 20130626
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NICOLE CATHERINE AGNEW
Applicant
- and –
DENI VIOLO
Respondent
DECISION
D.L. CORBETT J.
Released: June 26, 2013
[^1]: See Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), s.3.
[^2]: Divorce Act, R.S.C. 1985, c.3, (2nd Supp.), s.6(3).
[^3]: Holt v. Lippert, (1996), 1996 CanLII 18017 (MB CA), 21 R.F.L. (4th) 241 (Manitoba C.A.).
[^4]: H.(S.J.) v. H.(M.E.) (2011), 2011 ONSC 1569, 2 R.F.L. (7th) 436 (Ont. S.C.J.); Harrington v. McDermott, 2010 BCSC 531 (B.C.S.C.).
[^5]: This decision speaks as of the date the motion was argued, June 13, 2012.
[^6]: See Shields v. Shields, [2011] A.J. No. 761 (Alta. C.A.), Mann v. Glidden, [2011] N.B.J. No. 180 (N.B.C.A.).
[^7]: Mann v. Glidden, [2011] N.B.J. No. 180 (N.B.C.A.), at para. 3. See also Shields v. Shields (2001), 2001 ABCA 140, 18 R.F.L. (5th) 357 (Alta. C.A.) at para. 19; S.J.H. v. M.E.H., (2011) 2011 ONSC 1569, 2 R.F.L. (7th) 436 (Ont. S.C.J.), para. 42.
[^8]: Chung v. Fung, [1996] B.C.J. No. 918 (B.C.S.C. In Chambers), quoted with approval in Cousens v. Ruddy 2009 BCSC 1719 (B.C.S.C.), and in B.(G.R.) v. N.(G.M.) (2008), 2008 BCSC 843, 56 R.F.L. (6th) 202 (B.C.S.C. In Chambers). See also Cormier v. Cormier (1990), 1990 CanLII 11585 (NB KB), 26 R.F.L. (3d) 169 (N.B.Q.B.)
[^9]: See Chenkie v. Chenkie (1987), 1987 CanLII 3327 (AB KB), 6 R.F.L. (3d) 371 (Alta. Q.B.).
[^10]: See Young v. Young (1998), 1998 CanLII 28737 (NB KB), 195 N.B.R. (2d) 392, which emphasizes the preponderant importance of current, rather than historical, residence of the child. See also Jenkins v. Jenkins (2000), 2000 CanLII 22523 (ON SC), 8 R.F.L. (5th) 96 (Ont. S.C.J.).
[^11]: The parties disagree on whether the final custody and access order is the order of McKenzie J. (which, on its face, is a final order, but which does not finally dispose of the proceedings because it does not grant a divorce), or my order, which expressly orders that McKenzie J.’s order is a final order. Nothing turns on this point.
[^12]: supra., n.4.
[^13]: I accept that continuity with a judge versed in a case is a proper consideration weighing against transfer: see McDermott v. McDermott, 2006 BCSC 929 (B.C.S.C.).
[^14]: The moving party relied upon H.(S.J.) v. H.(M.E.), [2011] O.J. No. 1101 (S.C.J.) for the proposition that the court will consider “the application and availability of judicial resources”. That is not a fair reading of that case, which was ready for trial in Ontario and had just been commenced in Alberta.