COURT FILE NO.: FC-19-564
DATE: 2020/12/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EDYTA GADOMSKI
Applicant
- and -
TOMASZ GADOMSKI
Respondent
Counsel:
G.E. Lloyd, for the Applicant
W. Abbott for the Respondent
HEARD: December 18, 2020
REASONS FOR DECISION
INTRODUCTION
[1] Mr. Gadomski moves to transfer this family law application from Kingston, where Mrs. Gadomski lives, to North Bay, the closest judicial centre to where he lives. To do that, he must demonstrate that North Bay is a substantially better venue than Kingston. As I will explain, he has failed to do that.
[2] Therefore, the motion must be dismissed.
FACTS
[3] The parties met in Poland in 1999. Mr. Gadomski owns property there. He was living in Florida at the time, where he had a business. Mrs. Gadomski was employed as an assistant professor of sociology at the University of Lodz and was working on her Ph.D. The parties were married in Poland in 2000. They moved to Florida permanently in 2002.
[4] In or about 2010, the parties moved to Rutherglen. Rutherglen is roughly 35 kilometers east of North Bay, where Mr. Gadomski operates an outfitting business.
[5] Mr. and Mrs. Gadomski have two children. The oldest is a boy, 19 years of age. The youngest is a girl, who is now 16 years old. The son resides on his own, in North Bay. Mr. Gadomski deposes that the daughter resides with him in Rutherglen, but Mrs. Gadomski deposes that she actually lives with her brother.
[6] Mrs. Gadomski moved out of the matrimonial home in July 2019. She has been living in Kingston since then. Notwithstanding her elevated level of education, she is working part-time as a kitchen utility worker in a seniors residence.
[7] Mrs. Gadomski commenced the application to which this motion relates in Kingston sometime in the latter half of 2019. Surprisingly, neither party has provided me with a copy of the application. The parties advise me that Mrs. Gadomski is not seeking custody or access to the children. I am also told that the application relates mainly to spousal support and equalization.
ISSUE
[8] Mr. Gadomski argues that North Bay is the proper place for this application for four reasons:
(a) his daughter is too young to be left alone;
(b) the family property to be equalized is located here;
(c) he cannot leave his business unattended; and
(d) Mrs. Gadomski wrote an email in which she said she is willing to move back to North Bay for the purposes of the application.
[9] The question, then, is whether this is enough to transfer the application to North Bay?
ANALYSIS
[10] Mrs. Gadomski was entitled to commence her application in Kingston, even though she had not been living there for as long as she had lived in Rutherglen. Rule 5(1)(a) of the Family Law Rules, O. Reg. 114/99 provides that an application may be started in the municipality where a party resides. There is no issue that Mrs. Gadomski was living in Kingston when she started the application and that she continues to live there now.
[11] Nonetheless, r. 5(8) provides that a case may be transferred to another municipality if it is “substantially more convenient” to deal with it there. The Family Law Rules do not provide any more specific guidance than that. Rule 2(2) provides that the primary objective of the family rules is to enable the court to deal with cases justly, and r. 2(4) provides that the court is required to apply the family rules in a way that promotes the primary objective.
[12] The parties have referred me to r. 1(7) of the family rules, which provides that, where those rules do not cover a matter adequately, the court may have regard to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Counsel for both parties have referred me to cases in which r. 13.1.02(2)(b) of the civil rules has been used as a guide by courts in the family context: Comstock v. Comstock, 2005 CarswellOnt 1236 (Ont. S.C.); Swearengen v. Swearengen, 2009 CarswellOnt 648 (Ont. S.C.).
[13] Rule 13.1.02(2)(b) of the civil rules provides that, where a matter does not have to be started in a particular place by virtue of a statute or rule, the court may transfer the matter to another place where the transfer is “desirable in the interest of justice”, having regard to certain factors. The factors relevant to this motion are:
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(iii) where the subject-matter of the proceeding is or was located,
(v) the convenience of the parties, the witnesses and the court,
(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,
(ix) any other relevant matter.
[14] None of these factors is any more important than any other: Gould v. BMO Nesbitt Burns Inc. (2006), 2006 CanLII 63726 (ON SC), 81 O.R. (3d) 695 (Ont. S.C.), at para. 18; The Toronto-Dominion Bank v. Costa, 2019 ONSC 6384, at para. 19. They must all be looked at holistically: Hallman v. Pure Spousal Trust (Trustee of), 2009 CarswellOnt 5795 (Ont. S.C.J.), at para. 28.
[15] In his written materials, counsel for Mr. Gadomski includes a family law case in which it was held that the question of a transfer is to be decided on a “preponderance of convenience”: Autio v. Lariviere, 2002 CarswellOnt 5555 (Ont. C.J.), at para. 25. With respect, I do not believe that is the law with respect to applications of the type at issue in this motion.
[16] Autio was a custody case: para. 10. This case is not. Further, the question in Autio was not whether the case should be transferred from a place where it was properly commenced, but whether it was commenced in the proper place: para. 25. If these differences are not enough to distinguish the Autio case from this one, then I would respectfully decline to follow it. Rule 5(8) requires more than a mere preponderance of convenience before a matter may be transferred from a place where it has been properly commenced. It requires that the balance of convenience be tipped substantially in favour of another venue.
[17] This is true of non-family civil proceedings, as well. As the Divisional Court explained in Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897, where the plaintiff’s choice of venue is not unreasonable, then a party seeking to transfer the proceeding must demonstrate that another venue is significantly better in order to prevail: para. 29. There is no suggestion in this case that commencing the proceeding in accordance with r. 5(1)(a) of the family rules was unreasonable. Therefore, to succeed, even under the civil rules, Mr. Gadomski must demonstrate that North Bay is a significantly better venue than Kingston.
[18] Rather than trying to pigeon-hole Mr. Gadomski’s arguments into each of the relevant factors set out above, I will deal with them by referring to the four main reasons he submits the matter should be moved to North Bay: the daughter, the family property, the business, and the email from Mrs. Gadomski.
The Daughter
[19] Mr. Gadomski deposes that the application should be transferred to North Bay because the parties’ daughter is only 16, relies on him for transportation to and from school in North Bay, and is heavily involved in competitive badminton with respect to which he is also heavily involved.
[20] None of these concerns militate in favour of changing the venue of this application at this point in time.
[21] Mr. Gadomski does not have to leave his daughter unless and until this matter goes to trial in Kingston. It is too early to know if that will happen or, if it does, for how long he might have to be away. Based on the length of time most family matters take to get to trial, the daughter will be considerably older if and when that happens. Given the delay that has already been caused by this motion, this case will be no different.
[22] Even if this case went to trial next year, at her present age, and contrary to the evidence of Mr. Gadomski, the daughter is old enough to be on her own for short periods of time.
[23] The only valid concern relating to the daughter, if one believes Mr. Gadomski’s evidence that she is living with him, is transportation. However, there is no reason to believe that the daughter could not stay with the son in North Bay while Mr. Gadomski is away, or vice versa. Nor is there any reason to believe that the daughter could not obtain alternate transportation to her competitive badminton matches, or that the trial could not be scheduled around them.
The Family Property
[24] Mr. Gadomski argues that North Bay is the better place for this application because most of the family property is located here. There are three significant flaws in this argument.
[25] First, not all of the property at issue is located in the North Bay area. Mr. Gadomski lists two properties in the North Bay area owned at the date of separation, which he alleges were worth a little over $800,000 at the time. However, Mr. Gadomski also lists eleven Polish properties as of the date of marriage in which he had an ownership interest, nine of which he says were sold before separation. He alleges that the combined value of his interest in all of these properties was only $124,000. Mrs. Gadomski disputes this.
[26] Mr. Gadomski also lists three Florida properties worth over $1 million as of the date of marriage, two of which he says were sold before separation, and none of which had a mortgage registered against it. Mrs. Gadomski questions what happened to the money if these properties were worth so much.
[27] Second, equalization is about the monetization of property, not its re-allocation. It is rarely necessary to have the case dealt with in the same place as the property to be equalized. It may be necessary to have the value of the property appraised. But rarely does the court have to take a view of it.
[28] It is also true that expert appraisers may have to attend upon the property and testify at trial, but we do not yet know where those expert witnesses will be located, as none have yet been identified.
[29] Thirdly, even if experts will be retained from the North Bay area to appraise the two properties here, it is far from certain that any of them will have to travel to testify. Assuming, that the pandemic is over by the time of trial, there is no reason that the experts could not testify remotely even then, using the hardware and the software that we have used with such success during the pandemic. Remote testimony is especially appropriate where, as with most experts, the issue is reliability, rather then credibility.
The Business
[30] Mr. Gadomski makes two arguments relating to the fact that his business is located in North Bay.
[31] First, he points out that his accountant is located North Bay and the value of his business will be an issue. This argument suffers from some of the same flaws as Mr. Gadomski’s argument about the other witnesses. It is not yet certain that the accountant will have to testify and, if he or she does, that person may be able to appear remotely.
[32] Second, he argues that he cannot afford to take time away from his business to travel to Kingston for this application. I do not find this argument to be persuasive, for five reasons.
[33] First, as is the case when it comes to leaving his daughter alone, it is too early to know if and for how long Mr. Gadomski will have to attend Kingston for the purposes of this application. It is not necessary for him to travel simply to attend motions because these proceed on the basis of a written record. If Mr. Gadomski wants to observe the argument, it can be done remotely. He would lose no more time doing so than he would lose if the motion were argued in North Bay.
[34] Second, Mr. Gadomski maintains that he cannot leave his business because he is the reason that customers come to his store. He says that they come for his advice and expertise. However, Mr. Gadomski admits that his son works for him on the weekends. He also deposes that he spends a great deal of time in connection with his daughter’s badminton activities, deposing that his involvement with his daughter’s badminton results in an average day that starts at 6:30 a.m. and finishes at 11:00 p.m. I fail to see how this could be true if he must be at the business as much as he contends.
[35] Third, Mr. Gadomski says that he has not been able to afford to pay anyone to help during the week since he separated from Mrs. Gadomski. The fact that he would contemplate hiring someone to take his place contradicts his evidence that he is irreplaceable. Furthermore, I fail to see how the separation makes it more difficult for Mr. Gadomski to hire someone. While the evidence is that Mrs. Gadomski used to help with the bookkeeping, there is no evidence that Mr. Gadomski has had to hire anyone to replace her. Mr. Gadomski’s financial issues cannot relate to the fact that he is now paying support for Mrs. Gadomski, because he is not.
[36] Fourth, even if Mr. Gadomski will lose some income, he is better able to afford the costs of litigating this application in Kingston than Mrs. Gadomski is able to bear the costs of litigating it in North Bay. Indeed, it may even be cheaper for Mr. Gadomski to litigate the application in Kingston. His lawyer is from Toronto, which is closer to Kingston than it is to North Bay. Even if it is not significantly closer, the cost of travel for his lawyer is something Mr. Gadomski was obviously willing to bear when he retained him.
[37] Finally, Mr. Gadomski’s own travel to Kingston, if it ever becomes necessary, will also be easier for him to undertake than travelling from Kingston to North Bay would be for Mrs. Gadomski. Mr. Gadomski has a vehicle. Mrs. Gadomski does not. There are no flights or trains running between the two cities.
The Email
[38] On January 24, 2020, Mrs. Gadomski wrote by email to Mr. Gadomski regarding the venue of the application. In her message, she wrote:
I just want to inform you, you may want to know, that if court is set to take place in North Bay I’ll move back.
[39] Mr. Gadomski relies on this to submit that, if the application is transferred to North Bay, it will work no hardship on Mrs. Gadomski, who will simply move back here.
[40] Mrs. Gadomski deposes that she was not serious when she wrote what she did. She deposes that she was “teasing or maybe even taunting him a little” by suggesting that she and her new partner come to live on his “doorstep”. She says that perhaps she should not have done so, but that Mr. Gadomski “triggers” her.
[41] I accept this evidence. It is consistent with the tone of the rest of the message. For example, she finishes the message by writing:
The more I think about it the more I see that’s a great plan.
[42] Even if Mrs. Gadomski was serious about moving back to North Bay at the time, she is obviously not prepared to do that now, nor do I accept that she should do so simply to convenience Mr. Gadomski. Mrs. Gadomski was entitled to begin her application in Kingston and, as I have explained, none of the reasons relied upon by Mr. Gadomski are sufficient to make North Bay a substantially better venue for it.
CONCLUSION
[43] None of the reasons advanced by Mr. Gadomski for transferring this application to North Bay outweigh the significant difficulty that doing so would pose for Mrs. Gadomski. Transferring the application at this point in time would defeat the prime objective of the family rules by making it significantly more difficult for Mrs. Gadomski to prosecute the application than it will be for Mr. Gadomski to defend.
[44] The motion is therefore denied, albeit without prejudice to Mr. Gadomski raising the issue again once the matter is ready for trial.
COSTS
[45] If the parties are unable to agree on the issue of costs, written submissions, limited to three typewritten pages exclusive of attachments, may be made as follows:
(e) by Mrs. Gadomski, within 20 days of the release of these reasons;
(f) by Mr. Gadomski, within 10 days of receiving the submissions of Mr. Gadomski.
[46] If written submissions are not received within these time limits, they will not be considered.
M.G. Ellies R.S.J.
Date: December 22, 2020
COURT FILE NO.: FC-19-564
DATE: 2020/12/22
ONTARIO
SUPERIOR COURT OF JUSTICE
EDYTA GADOMSKI
– and –
TOMASZ GADOMSKI
REASONS FOR DECISION
Ellies R.S.J.
Released: December 22, 2020