COURT FILE NO.: FC-18-956
DATE: 2019/08/21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicholas Hilary Pienkowski Roseman, Applicant
-and-
Shaena Alexandria Whittaker, Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Paul Jakubiak, for the Applicant
Jennifer Ryan, for the Respondent
HEARD: July 25, 2019
ENDORSEMENT
Introduction
[1] The parties became romantically involved in 2016. Initially, the relationship was long-distance, with the applicant residing in Ottawa and the respondent in Toronto.
[2] In 2017, after learning that the respondent was pregnant with the parties’ child, the parties purchased a home in Ottawa (“Treymore”). The home was purchased in the names of the applicant and the respondent’s father, the latter in trust for the respondent. The trust arrangement was required for financing reasons.
[3] The applicant remained in the Toronto area until after the birth of the child—Mia Szarlotka Roseman (DOB: March 29, 2018).
[4] The respondent has an older child from a previous relationship, Nathaniel Ethan Alexander Colgan, who was born in September 2010. Ethan is described as “high-functioning autistic”. The respondent has sole custody of Ethan. His father does not have parenting time with him. Ethan moved with the respondent and Mia between Ottawa and Toronto as described below.
[5] In April 2018, the respondent moved to Ottawa with Mia and Ethan, and began to live at Treymore.
[6] The parties disagree as to the extent to which they successfully operated as a couple and as a family from late May until the fall of 2018. Their disagreement includes how long the applicant resided at Treymore during that period.
[7] The parties agree, however, that they separated approximately one month after the respondent moved with Mia and Ethan to Treymore. In mid-May 2018, the respondent travelled to Toronto with Mia. The respondent, Mia, and Ethan remained in the Toronto area for approximately one week before returning to Treymore. Mia was hospitalized for a portion of the time that she was in the Toronto area in May 2018.
[8] In November 2018, the respondent moved with Mia and Ethan to the Toronto area. They remain in that area to this day.
[9] The parties disagree as to the appropriate venue for their dispute with respect to custody, access, child support, and other issues to be determined. The sole issue determined in this ruling is venue.
[10] When the respondent took Mia to the Toronto area in May 2018, the applicant attempted to bring a motion in Ottawa on an urgent basis for an order requiring the respondent to return Mia to Ottawa. Master Fortier found the supporting affidavit to be insufficient. The applicant was ordered to provide “[a] more detailed and fulsome affidavit” (endorsement of Master Fortier dated May 17, 2018).
[11] The parties subsequently resolved matters, at least temporarily, and the respondent returned to Ottawa on May 20, 2018, with Mia and Ethan. As a result, the applicant did not pursue the proceeding further at that time.
[12] The notice of application was issued in Ottawa on the day on which the applicant sought to bring his urgent motion. The notice of application indicates that the first court date appearance would be a date in mid-July 2018. The endorsement of the First Court Date Clerk reads, “No one appeared, no materials filed—Matter is struck.”
[13] With the parties attempting to resolve matters in the summer and fall of 2018, the applicant did nothing during that time to pursue his application. After the respondent returned to the Toronto area in November 2018, the applicant turned his mind to the application once again.
[14] The procedural history from late 2018 forward is somewhat unusual. The respondent relies in part on that unusual history in support of her request for the application to be heard and interim steps to be addressed in either Newmarket or Toronto.
[15] The applicant’s evidence is that, following the respondent’s move with both children to Toronto in November 2018, he obtained the first case conference date available, February 6, 2019. As of November 2018:
• The applicant was identified in the title of proceeding as self-represented;
• The applicant was being assisted by a lawyer in the capacity as agent;
• The application had not yet been served; and
• In the title of proceeding, the address listed for the respondent was Treymore (i.e. not the Toronto area).
[16] The case conference notice is dated November 27, 2018. On January 14, 2019, a legal assistant in the office of Mr. Jakubiak sent a copy of the notice to the respondent by regular mail and by email. The copy of the notice sent by regular mail was sent to the applicant at the Treymore address.
[17] Upon receipt of the case conference notice, the respondent retained counsel. Respondent’s counsel was not available to attend the case conference scheduled for February 6, 2019. On consent, the case conference was adjourned to May 13, 2019. At the same time, the applicant began to have parenting time with Mia in the Toronto area. He had parenting time on several occasions between February and May 2019.
[18] In April 2019, the application was served on the respondent.
[19] The case conference proceeded on May 13, 2019. The respondent filed her pleading and financial statement on that date. At the case conference, the parties were granted leave to bring motions, respectively, for temporary relief. Each of the parties thereafter served a notice of motion and supporting affidavit addressing both venue and substantive relief related to Mia.
[20] On his motion, the applicant requests an order declaring Ottawa to be “the correct territorial jurisdiction and venue” for the application and eight items of substantive relief relating to custody, access, and child support.
[21] On her motion, the respondent requests an order dismissing the applicant’s motion in its entirety and changing the venue of the application from Ottawa to either Newmarket or Toronto. She also requests substantive relief related to custody, access, and child support.
[22] The motions were scheduled and confirmed for a total of two hours. Even before the hearing date, it was clear that two hours was insufficient to address the issue of venue and all the substantive issues. In the end, the submissions with respect to venue took 2.5 hours. As a result, the only issue addressed on the return of the motions was venue.
[23] The parties were directed to resolve and succeeded in resolving, on an interim interim basis, the issue of the applicant’s parenting time with Mia pending the outcome of the two motions with respect to the substantive relief. The terms agreed upon are reflected in the court’s endorsement dated July 26, 2019.
The Issue
[24] The sole issue determined is whether the venue of the application is Ottawa, Newmarket, or Toronto.
Disposition
[25] The primary objective of the Family Law Rules, O. Reg. 114/99 (“FLR”) is to deal with cases justly (r. 2(2)). To achieve that objective, the procedure must be fair to all parties (r. 2(3)(a)). In the circumstances of Mia’s very young life, I find that the just and procedurally fair outcome is for Newmarket to be the venue of this application.
Positions of the Parties
[26] The applicant and the respondent agree that the issue of venue is generally determined on the basis of where the child is “ordinarily resident”. The parties disagree as to the location in which Mia was ordinarily resident.
[27] The applicant’s position is that Mia’s place of ordinary residence is to be determined as of May 17, 2018, the date on which the notice of application was issued. The applicant submits that Mia’s place of residence since that date is not relevant to the determination of where she is ordinarily resident for the purpose of this proceeding.
[28] The respondent’s position is that Mia’s real home has always been with the respondent, whether in Ottawa or the Toronto area. As a result, the application should proceed in Newmarket (the location of the courthouse closest to where the respondent has been living with Mia and Ethan for many months). In the alternative, the respondent submits that the application should proceed in Toronto—a location close to where the applicant lives and closer than Newmarket to where the applicant lives.
[29] In addition, the respondent submits that the applicant has, to gain tactical advantage throughout this proceeding, shown disregard for the FLR. Leaving aside the merits of the respondent’s substantive position, the respondent submits the applicant should not be rewarded for his conduct by a decision favourable to him on the issue of venue.
The Law
[30] Ontario is the appropriate jurisdiction for the determination of the issues between the parties. The sole issue to be determined is the venue in which this matter is to proceed. “Venue” is defined as “the geographical location within Ontario where the case is properly to be heard” (Autio v. Lariviere, 2002 CanLII 61228 (Ont.C.J.), at para. 9).
[31] Venue is determined on the basis of the FLR and the case law with respect to the application of those rules. Pursuant to r. 5(1)(b), where a case deals with custody of or access to a child, the case shall be started “in the municipality where the child ordinarily resides”.
[32] Subrule 5(2) creates a number of exceptions to r. 5(1)(b). The exceptions include danger to the child’s health or immediate danger that the child might be removed from Ontario. In these excepted situations, the case may be started in any municipality. Yet, even r. 5(2) emphasizes the importance of the case ultimately proceeding in the location where the child ordinarily resides. Where a motion under r. 5(2) is heard in any municipality, “the case shall be transferred to [the municipality where the child ordinarily resides] immediately after the motion is heard, unless the court orders otherwise.”
[33] The term “ordinarily resident” is not defined in the FLR, nor is there any relevant statutory definition of the term. The term has, for the purposes of the Divorce Act, 1985, S.C. 1986, c. 4, been interpreted in the case law to mean “the place where [the person’s] ‘real home’ is, or where [the person] regularly, or customarily resides”: see Trotter v. Trotter (1992), 1992 CanLII 8600 (ON SCDC), 90 D.L.R. (4th) 554, (Ont. Ct. Gen. Div.), at p. 557 (citations omitted).
[34] The notice of application was issued on May 17, 2018. As of that date, Mia was seven weeks old. How is the “ordinary residence” of a seven-week old determined?
Analysis
[35] The uncontradicted evidence as to where Mia lived during the first seven weeks of her life is:
• Mia was born in Toronto, where the respondent lived while the parties dated and throughout her pregnancy;
• For two weeks following Mia’s discharge from hospital, the parties resided with Mia at the maternal grandmother’s home in Bradford, Ontario (north of Toronto);
• The parties, Mia, and Ethan then stayed for a few days at the applicant’s condominium in Toronto;
• On April 17, 2018, the respondent Mia, and Ethan moved to Treymore;
• On May 13, 2018, the respondent returned to the Toronto area with Mia and Ethan; and
• The respondent did not return to Ottawa with Mia and Ethan until May 19, 2018.
[36] A strict arithmetic approach is not helpful to determine Mia’s place of ordinary residence as of May 17, 2018. Mia resided in the Toronto area for the first 19 days of her life (March 29 to April 17). For the next 24 days (April 18 to May 12), Mia resided at Treymore. For the next five days (May 13 to 17), before the notice of application was issued, Mia resided in the Toronto area. In summary, of the first 48 days of Mia’s life, 24 days were spent in the Ottawa area and 24 in the Toronto area.
[37] For several reasons, Mia’s physical location at any given time is not the dominant factor in determining Mia’s “real home”. Those reasons include Mia’s very young age, the level of discord and disruption in the parties’ relationship, and that the relationship was carried out long distance for most of the time prior to November 2018.
[38] A practical approach is required to reach a just determination of the issue of Mia’s real home for the purpose of identifying her place of ordinary residence. First, and for the following reasons, I find that Mia’s real home and, therefore, her place of ordinary residence is with the respondent in Bradford, Ontario:
• The uncontradicted evidence is that the respondent has been Mia’s primary caregiver since Mia’s birth. The parties and Mia benefitted from the availability and support provided by Mia’s maternal grandmother in the first two weeks following Mia’s birth;
• The parties recognize that the respondent requires support to raise Mia and Ethan, who has been diagnosed as being on the autism spectrum; and
• The respondent, Mia, and Ethan remain in Bradford.
[39] Second, the practicalities of the parties’ relationship include that the applicant was fully aware of the respondent’s family situation and ties to the Toronto area when he entered into the relationship with the respondent. The applicant was aware that the respondent already had a child with special needs. The applicant willingly became part of a pre-existing and somewhat complex family dynamic. The applicant was short-sighted if he failed to appreciate the role that pre-existing family dynamic would play in his relationship with the respondent and any children they might have.
[40] Third, both parties describe volatility in their relationship, in particular the periods when the respondent lived at Treymore. Both parties describe that between May 19 and late November 2018 the respondent returned with some frequency to the Toronto area, taking Mia and Ethan with her. The parties disagree as to the cause and character of the trips to Toronto.
[41] There is contradictory evidence as to the extent to which the parties resided together at Treymore from May to November 2018. Regardless of how much or how little time the applicant resided at Treymore in that period, I find that the respondent was Mia’s primary caregiver during that period.
[42] Fourth, I am not convinced that, if the matter proceeds to trial, there will be a greater number of witnesses called from the Ottawa area than from the Toronto area. This ruling is not, in any event, concerned with the appropriate place for a hearing. This ruling relates only to where the application will proceed. If, at a later date, one of the parties is of the view that it is “substantially more convenient” to have a step in the proceeding, including the trial, take place somewhere other than in Newmarket, that party may bring a motion pursuant to r. 5(8) of the FLR.
[43] The applicant chose not to take any steps in the proceeding in the fall of 2018 to formally address custody and access. The applicant’s evidence is that he did not move forward with his application prior to April 2019 (when the pleading was served) because he (a) did not want to upset the applicant, and (b) wanted to be certain that he would continue to have access visits with Mia. The applicant made a strategic decision. That decision was not, however, made in a vacuum. It was made in the context of a proceeding the applicant chose to initiate a number of months earlier.
[44] I agree with the respondent that a number of procedural irregularities occurred. Whether all of the irregularities occurred because of deliberate decisions and/or steps taken by the applicant, does not need to be addressed at this time. The outcome on the issue of venue is determined on the basis of Mia’s “real home” and the practicalities of the parties’ relationship over time.
Summary
[45] I find that the proper venue for this proceeding is Newmarket. The courthouse closest to the location in which the applicant has resided with her children for a number of months, and where she continues to reside with them, is in the courthouse in Newmarket.
[46] The parties shall therefore take the steps necessary to transfer this application to Newmarket and to bring their respective motions before a judge of this court in Newmarket. In the event the available motion dates in Ottawa are earlier than those available in Newmarket, the parties may, if they agree to do so, continue their respective motions in Ottawa. If the continuation of the motions proceeds in Ottawa, the respondent may appear by videoconference, with the respondent responsible for taking the steps necessary to address logistics with respect to proceeding by videoconference.
[47] Except for the continuation of the pending motions, all steps in the proceeding shall take place in Newmarket unless the court orders otherwise.
Costs
[48] In the event the parties are unable to agree upon one or both of the scale for and quantum of costs, they shall make submissions as follows:
a) The submissions shall be limited to a maximum of four pages (excluding the bill of costs);
b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In the absence of an analogous rule in the FLR, the Rules of Civil Procedure govern the form of documents;
c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size;
d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages;
e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this ruling is released; and
f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this ruling is released. Reply submissions shall comply with paragraphs (a) to (d) above.
[49] If no submissions are delivered pursuant to subparagraph (e) above, there will be no further order with respect to costs.
Madam Justice S. Corthorn
Date: August 21, 2019
COURT FILE NO.: FC-18-956
DATE: 2019/08/21
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Nicholas Hilary Pienkowski Roseman, Applicant
-and-
Shaena Alexandria Whittaker, Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Paul Jakubiak, for the Applicant
Jennifer Ryan, for the Respondent
ENDORSEMENT
Madam Justice S. Corthorn
Released: August 21, 2019