SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F419/12

DATE: February 8, 2013

RE: S.G.D.1, applicant

AND:

D.A.1, S.C., D.A.2 (sometimes known as D.M.) and S.G.D.2, respondents

BEFORE: HENDERSON J.

COUNSEL:
David Winninger for the applicant

D.A.1 in person

S.C. not appearing

D.A.2 not appearing

S.G.D.2 in person

HEARD: January 30, 2013

ENDORSEMENT

[1] This is a motion brought by the respondent, D.A.1 (“Mr. D.A.1”), to move these proceedings from London to Brampton. The applicant, S.G.D.1 (“Ms. S.G.D.1”), and the respondents, Mr. D.A.1 and S.C. (“Ms. S.C.”), are claiming custody of two children, L.G.M.D., born […], 2004, and S.N.D., born […], 2007.

[2] Mr. D.A.1 is the father of L.G.M.D.. S.N.D.’s father, D.A.2, has been deported to El Salvador and has not participated in these proceedings. Both children have been in the care of Mr. D.A.1 since November 25, 2010 pursuant to a supervision order in separate child protection proceedings. Those proceedings were terminated by court order August 16, 2012.

[3] By application dated March 2, 2012, Ms. S.G.D.1 commenced these proceedings seeking custody of the children and child support. Mr. D.A.1, in his answer dated April 20, 2012, also seeks custody of the children and child support. The current proceedings were stayed pending the conclusion of those brought pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended]. Although Ms. S.G.D.1could have proceeded with her claim pursuant to s. 57.1 of the Child and Family Services Act, she chose otherwise. She provides no explanation for her decision. However, in paragraph 27 of her affidavit sworn December 5, 2012 she explained, in the context of the termination of the Society’s involvement: “Rather than hold the Society hostage in what are now competing custody claims regarding the children, I did not oppose the Society’s termination, as the custody claims had been instigated in London.” One might infer the same rationale, that is, she did not want to hold the Society hostage in what was really a custody dispute.

[4] The children were in the care of Ms. S.G.D.1 in London from their birth to April 2008. The children were apprehended by the Children’s Aid Society of London and Middlesex and placed in the care of Ms. S.G.D.1’s parents until July 2009. It is not stated where Ms. S.G.D.1’s parents lived but her mother, S.G.D.2 (“Mrs. S.G.D.2”), who is a party to these proceedings, now resides in Hanover, Ontario.

[5] The Society returned L.G.M.D. to Ms. S.G.D.1’s care in July 2009 and S.N.D. in August. The children remained in Ms. S.G.D.1’s care until they were again apprehended May 10, 2010. They were placed in Mr. D.A.1’s care pursuant to the order of Tausendfreund dated November 25, 2010 subject to terms of supervision.

[6] On December 5, 2011, Mr. D.A.1 advised the Society that he and his partner, Ms. S.C., were moving to Toronto (North York) on December 11, 2011, so Ms. S.C. could attend York University.

[7] The Society permitted the move without further court order. Mr. D.A.1 explained the first move to Toronto was temporary pending completion of his mother’s home in Brampton. Mr. D.A.1, Ms. S.C. and the children moved there in April 2012. Ms. S.G.D.1 exercises access alternate weeks, with one week being in London and the other at her mother’s home in Hanover, Ontario, which is half way between London and Brampton.

[8] This application has proceeded through first appearance, case conference, motion to add Mrs. S.G.D.2 as a party, motion to add Ms. S.C. as a party and motion by Ms. S.G.D.1 for Christmas access. The next step is the trial management conference scheduled March 11, 2013, with trial to follow. An order requesting the involvement of the Office of the Children’s Lawyer has been made but neither party has had a response.

Discussion

[9] Mr. D.A.1 seeks to transfer these proceedings to Brampton. Argument from both sides concentrated on r. 5(8) of the Family Law Rules, O. Reg. 114/99 which states:

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.

[10] Rule 5 governs where a case starts and where it is to be heard. It is subject to s. 21.8 and 21.11 of the Courts of Justice Act, R.S.O. 1990, c. C.43 [as am. by S.O. 1991, c.46].

[11] Section 21.8(1) states:

In the parts of Ontario where the Family Court has jurisdiction, proceedings referred to in the Schedule to this section, except appeals and prosecutions, shall be commenced, heard and determined in the Family Court.

[12] Custody, access and child support matters fall within the schedule referred to in s. 21(8)(1).

[13] The Family Court, as defined by the Courts of Justice Act, has jurisdiction in London; it does not in Peel where Brampton is situated.

[14] Because the change is from a court, where the Family Court has jurisdiction, to one that does not, s. 21.11(3) of the Courts of Justice Act applies and not r. 5(8). Section 21.11(3) reads:

A judge presiding over the Family Court may, on motion, order that a proceeding commenced in the Family Court be transferred to the appropriate court in a place where the Family Court does not have jurisdiction if, in the judge’s opinion, the preponderance of convenience favours having the matter dealt with by that court in that place.

[15] Therefore, instead of a consideration of “substantially more convenient” in accordance with r. 5(8), I must determine “preponderance of convenience” in accordance with s. 21.11(3).

[16] Before embarking upon this analysis, there is a preliminary matter that must be addressed. Rule 5(1)(b) specifies where a case must be started in a case involving custody and access:

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,

(i) section 22 (jurisdiction of an Ontario court) of the Children’s Law Reform Act, and

(ii) subsection 48 (2) (place for child protection hearing) and subsection 150 (1) (place for adoption proceeding) of the Child and Family Services Act ...

[17] At the time this case started, the children had been living with Mr. D.A.1 and Ms. S.C. in Toronto (North York) for four months. There is a strong argument that the action should have been commenced in Toronto, as the children at that time appeared to have their ordinary residence there.

[18] However, I find that when this case was started, the children ordinarily resided in London for the following reasons:

1. The children were ordinarily resident in London when they were apprehended by the Society in May 2010.

2. From then until the termination order in August 2012, the children, though in the care of Mr. D.A.1, remained under the auspices of the Society. If there was a breach of a term of the order, they would have been returned to London.

3. The children were moved out of the jurisdiction without court order or the acquiescence of Ms. S.G.D.1. If Ms. S.G.D.1 were aware, she may have brought a status review application or joined a claim for custody pursuant to s. 57.1 of the Child and Family Services Act.

[19] Therefore, because the child protection matter remained before the London courts at the time of the commencement, it coloured the otherwise “ordinary residence” of the children. The residence was conditional. The children remained the responsibility of the London Society, under the jurisdiction of the Family Court in London, and could still be returned to the care of the mother, who resided in London. The move to Toronto was at the instance of Mr. D.A.1, with the compliance of the Society, but without the acquiescence of Ms. S.G.D.1.

[20] Moreover, it would have made no sense to bring a case in North York with child protection proceedings extant in London. I find, therefore, this application was properly brought in London.

[21] Although the matter has been properly brought in London, should it nevertheless be moved to Brampton?

[22] Section 21.11 permits the court to transfer proceedings from a Family Court to a court where it does not have jurisdiction only where the “preponderance of convenience” favours such a move. It does not refer to a simple balance of convenience. This suggests that where the action was commenced is presumptively correct. Mr. D.A.1 therefore must establish that, after a consideration of all the factors, the preponderance of convenience favours the transfer.

[23] Section 21.11 does not set out the factors that the court may consider. The cases have not limited those factors. Generally, these have included the convenience of witnesses, the parties, the courts or the interests of justice.

[24] Borins J., in Laurin v. Favot, 1996 7964 (ON SC), 1996 CarswellOnt 793, 45 C.P.C. (3d) 203, 28 O.R. (3d) 114, 7 W.D.C.P. (2d) 171 (O.C.J. Gen. Div.), discussed this open approach at para. 14:

... As the McDonald case illustrates, the usual ground on which a change of venue is sought has to do with the anticipated witnesses – in respect to their convenience, and the cost to the parties of bringing a witness to court. Other factors which have been taken into consideration by the court in determining the balance of convenience include the need to take a view, the delay or expediting of the trial, and the relative cost to the parties of holding the trial in a different location: Williston and Rolls, The Law of Civil Procedure (Toronto: Butterworths, 1970), p. 546 et seq.

[25] In the present case, I find the case should remain in London for the following reasons. First, as Borins J. noted, the usual factor is the convenience of witnesses and their attendant costs. In this motion, neither party was very specific as to what witnesses each were going to call beyond themselves. Each intend to call family members, which balance out. In the affidavit of Ms. S.C. sworn December 7, 2012, she referred to other witnesses such as the children’s school principal or teachers, CAS worker and the children’s doctor. Much of this evidence, however, could be adduced by statement or affidavit. Mr. Winninger, Ms. S.G.D.1’s counsel, said he would be satisfied with this. There are no other experts except the Office of the Children’s Lawyer.

[26] Personal to themselves, both Mr. D.A.1 and Ms. S.C. stated travel would be expensive and a trial in London would disrupt their work, classes and volunteer work. However, those disruptions I believe would occur during the trial in any event, regardless of where it was held. I do not find that argument persuasive.

[27] There are two factors that weigh more significantly in my deliberation. The first concerns Ms. S.G.D.1’s circumstances. She is on Ontario Works and does not work. She does not drive or have access to a car. In contrast, Mr. D.A.1 and Ms. S.C. both work and have access to at least one vehicle. Unlike these respondents, Ms. S.G.D.1 has neither the ability or financial means to attend a lengthy trial in Brampton.

[28] Another consideration is the nature of Ms. S.G.D.1’s retainer. She has retained her counsel on a Legal Aid certificate. It is not a certainty that Legal Aid would fund her present lawyer to travel to Brampton for trial. Nor is it a certainty that she would be able to transfer her certificate to another counsel in Brampton. Even if she could, she has no certainty that she would be able to retain new counsel on the eve of trial.

[29] These two considerations raise a serious doubt whether Ms. S.G.D.1 could effectively prosecute her case. This would amount to a denial of access to justice. Mr. D.A.1 and Ms. S.C. do not face the same hurdles. They have the financial means and are self represented. The interests of justice favour Ms. S.G.D.1.

[30] A final factor that weighs in favour of keeping the case in London concerns the children. This is a custody and access matter and, as such, decisions regarding the management of this trial should always be made in the children’s best interests.

[31] Ms. S.C. deposed in her affidavit of December 7, 2012 that a trial in London would upset the children’s routines. Daycare arrangements would have to be made. It would be no different if the trial were in Brampton, except that overnight arrangements would not be necessary. There appears to be extensive family where these respondents reside and I do not believe overnight daycare would be a serious imposition during the course of the trial. The children, in any event, live with their grandmother and, if she were to testify in London, another family member could cover off.

[32] A final consideration in the children’s best interests is to have this matter tried as soon as possible. No evidence was put forward as to how quickly this matter could be tried in Brampton but in London the matter could be on a trial list by June of this year. Even if the court time for trial was similar, the delay occasioned by the transfer would place this case on a trial list much later.

[33] For these reasons, I find Mr. D.A.1 has not met the threshold of a preponderance of convenience. His motion is therefore dismissed.

[34] The parties may make short written submissions regarding costs within 30 days.

“Justice Paul J. Henderson”

Justice Paul J. Henderson

Date: February 8, 2013