WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

2022 ONSC 5953

COURT FILE NO.: FC-21-879-00

DATE: 20221024

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simcoe Muskoka Child, Youth and Family Services, Applicant

AND:

H.D. and J.D., Respondents

BEFORE: Madam Justice R. S. Jain

COUNSEL: D. Winnitoy, Counsel, for the Applicant

A. Lowo Counsel, for the Respondent H.D.

M. Morningstar, Counsel, for the Respondent J.D.

HEARD: October 6, 2022

ENDORSEMENT

INTRODUCTION

[1] This long motion was brought by the Respondents against the Simcoe Muskoka Child, Youth and Family Services (“SMCYFS” or “the Society”). The Respondent, H.D. (“the Mother”) and the Respondent, J.D. (“the Father”), are the parents of two young children together, namely A.D. (5 years old) and D.D. (2 years old). The children shall be referred to as “A.D.” or “D.D.” or “the child/ren”.

[2] The Mother and Father are requesting an order varying the Order of Eberhard J., dated August 11, 2021, (‘the Supervision Order”) to permit the Mother and children to temporarily relocate to Lloydminster, Alberta to reside with the Father under certain terms of supervision of the SMCYFS. In the alternative, they seek an order transferring these proceedings to a court of competent jurisdiction responsible for child welfare cases in Lloydminster, Alberta. SMCYFS objects to the relief sought by the Respondents and seeks an order dismissing their motion.

[3] The questions for the court are:

(a) Should this court vary the Supervision Order to permit the Mother to temporarily relocate with the children to Alberta during an active child protection proceeding?

(b) Should this court change the place for this case and transfer this child protection matter from this court to another court in another province, namely Alberta?

Background and Facts

[4] The Society’s Protection Application arose as a result of the Father being charged with sexual interference, invitation to sexual touching, sexual assault, and possession of child pornography. At a later date, an additional charge was laid against the Father for “luring a person under the age of 16.” All of the charges relate to a foster child who was 14-years-old at the time and residing with the Respondents in the home of the Father’s mother. The charges have not yet been proven in criminal court; however, the Society has verified that the Father poses a risk of harm to the children in this matter. Both Respondents vehemently deny the criminal charges and oppose child protection allegations.

[5] On July 28, 2021, the Society issued an Application with respect to the children, asking the Court to make a finding under Part V s. 74(2)(d) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “Act” or the “CYFSA”), that there is a risk that the children are likely to be sexually abused or exploited, by the person having charge of them or by another person where the person having charge knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the children. The Society launched the Application because they allege that the family was not engaging voluntarily and that the risk was too serious and required mitigation.

[6] On August 11, 2021, after a contested temporary care and custody hearing, Justice Eberhard made a temporary Supervision Order (the “Supervision Order”) placing the children in the care of the Mother under supervision of the Society. The Supervision Order requires that the Mother ensure that the children are never in the Father’s presence without a responsible adult that is pre-approved by the Society. The supervision is to be accomplished by someone always being with the children when the Father is in the home.

[7] The Mother does not believe that the Father is guilty of the charges, but states that she understands the seriousness of the charges and the reasons for the Supervision Order. The Society was concerned about the Mother being able to be the sole supervisor for the Father. The court believed it to be unreasonable to expect the Mother to be able to solely supervise the Father at all times in the home. Accordingly, the Society has approved multiple people as the additional responsible adults in the home who have all signed supervision agreements.

[8] Although it was not agreed to or ordered right away, the Father has agreed to a CYFSA s. 98 sexual preference assessment (with phallometric testing). The Society is funding the assessment. At the time of this motion, the assessment has not commenced.

[9] A finding that the children were/are in need of protection has not yet been made in this matter. The Respondents oppose any protection finding and this issue will be the subject of a trial scheduled to proceed in November, 2022, pending the completion and outcome of the assessment.

[10] The Father moved to Lloydminster, Alberta in January, 2022. At that time, both Respondents requested permission from the Society that the Mother and children be permitted to relocate to Alberta to reside with the Father. The Society refused. The matter was conferenced; however, there was no agreement. In accordance with the endorsement of Krause J., dated June 8, 2022, the Society consented to the Mother and children going to Lloydminster Alberta for a visit during the summer months of 2022. The Society was able to organize the Alberta child protection agency to assist and monitor the Respondents compliance with the Supervision Order for the duration of the visit. Accordingly, the Mother and children left Ontario on July 2, 2022. Unfortunately, the Mother and children did not return to Ontario at the end of the summer.

[11] This motion originally came before me on September 29, 2022. The Society objected to the Respondents’ motion proceeding because the Respondents were not in compliance with the Supervision Order as the Mother and children had not returned to Ontario. The Respondents argued that they were not in non-compliance and that nothing in the Supervision Order or the Endorsement of Krause J., dated June 8, 2022, said the Mother and children had to return to Ontario or reside in Ontario. On that day, pursuant to r. 1(8)(b) (c) and for reasons given orally, the court did not permit the motion to proceed. Instead of dismissing it, the court gave the Respondents time to bring themselves into compliance with the Supervision Order, including the Mother and the children returning to Ontario. The motion was adjourned to October 6, 2022, before me, in person. I granted permission for the Father to attend virtually. The Mother returned to Ontario with the children. She attended in person for the motion. The Father was not present for the motion in person or virtually.

The Law

[12] The Supervision Order was made under section 94(2) of the CYFSA. Section 94(9) of the CYFSA provides that an Order under section 94(2) may be terminated or changed by a court. It reads as follows,

Power to vary – The court may at any time vary or terminate an order made under subsection (2).

[13] When determining whether to change a temporary order, the court need not find a material change in circumstances. The party bringing the motion bears the onus to establish there has been a sufficient change in circumstances taking into consideration the primary and secondary purposes of the CYFSA set out in s. 1.

[14] Once a sufficient change in circumstances is established, the court shall conduct a contextual analysis to determine if the court should use its discretion to change the order. The legal tests to change a temporary order during the adjournment of a protection application are reviewed and clearly set out by Sherr J. in Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, at paras. 70-85. The court must consider the extent to which the proposed change meets the paramount purpose and other purposes of the Act as set out in s. 1 to “promote the best interests, protection and well-being of children,” and to “support the autonomy and integrity of the family unit” and consider the “least disruptive course of action that is available.” The paramount and other purposes in s. 1 of the Act should always be at the forefront of the analysis. The court shall also consider the following non-exhaustive list of factors depending on the circumstances of the case:

(a) The nature and extent of the variation sought and the proportionality of the requested change to the change in circumstances since the making the last court order. In particular, the court should examine the extent to which the passage of time has yielded a fuller picture to the court about the child, the parent or any family and community member involved with the family.

(b) The degree to which the change in circumstances reduces or increases the risk of harm to the child.

(c) The extent to which the proposed change meets the objectives set out in s. 1 of the CYFSA.

(d) The tiered considerations in the CYFSA for temporary custody orders that endeavour to keep the level of intervention proportionate to the child’s need.

(e) The best interests factors set out in s. 74(3) of the CYFSA.

(f) The stage of the proceeding. Is a trial that will determine the issue imminent? If so, it might be in the best interests of the child to have the trial judge determine the issue.

[15] There are no statutory provisions in the CYFSA governing interim relocation. The seminal decision on relocation in the context of a child protection matter is Children’s Aid Society of Toronto v. G.M., 2015 ONCJ 463, at para. 41, wherein Sherr J. outlined an inclusive list of principles and factors for the court to consider. Even with the changes to the governing child welfare legislation and other family legislation, the principles and factors outlined in CAS of Toronto vs. G.M. remain relevant and applicable and important on interim motions for relocation in children protection matters: see DCAS vs. P.A., 2022 ONSC 606, at paras. 47-49. Some of the relevant principles and factors include:

(a) Whether the proposed move is in the context of a protection application or a status review application. The court will likely apply a stricter test during an original protection proceeding since there has not yet been a finding that the child is in need of protection, the statutory time limits are less likely to have been exceeded, the parents will be just beginning to address the risk concerns and should be given a reasonable opportunity to show that they can safely parent the child.

(b) The nature of the protection issues, including the severity of the risk concerns. This will likely dictate how long a parent might take or should be given to address these concerns. If the risk to a child is low to moderate and will likely be addressed in a timely manner, it is not a proportionate response to move a child far away from the parent to an extended family member. The parent should be given every reasonable chance to succeed. The consideration is different if the risk concerns are high and unlikely to be addressed by the parent in a timely manner.

(c) Whether the proposed move will involve a change in who is caring for the child. If the change is being proposed in a status review proceeding the test in subsection 64(8) of the [CFSA] and the law [regarding the best interests of the child] must be applied.

(d) Whether the child is in the care of the society at the time of the motion. It is generally advantageous to a child to be placed with a member of his or her family, rather than remain in a foster placement.

(e) Whether the child will be moving to reside with a parent, which move will generally be viewed more favourably than a move to live with an extended family member.

(f) How closely the child protection case resembles a domestic dispute. In some cases, the society is only involved to monitor high conflict between parents and to protect the child from emotional harm. There may only be a supervision order in place. The closer the case resembles a domestic dispute the more appropriate it will be for the court to apply the principles reviewed in Boudreault in assessing whether to permit a proposed move on a temporary basis with one of the parents.

(g) The nature of the relationship between the child and the proposed caregiver.

(h) The proposed caregiver’s ability to meet the needs of the child in the new jurisdiction, including the child’s academic, medical, social, and development needs. It needs to be kept in mind that many children in child protection cases have special needs due to their exposure to substandard parenting.

(i) The proposed caregiver’s ability to work cooperatively and honestly with the society and to comply with court-ordered terms of supervision.

(j) The proposed caregiver’s willingness to facilitate any order for access to the left-behind parent and extended family members.

(k) The ability and willingness of a child protection agency in the new jurisdiction to monitor any supervision order. Its ability to do so needs to be assessed in the context of the degree of any risk concerns with the caregiver - the higher the risk, the more important the ability to monitor the caregiver becomes.

(l) The nature of the relationship between the child and the left-behind parent or parents and their extended families and the possible emotional risk of harm to a child of diminishing those relationships. The court will generally be more reluctant to approve a move where the left-behind parent has been actively involved in raising a child. That parent should be given a longer opportunity, within the parameters of the statutory time limits, to demonstrate that he or she can adequately address the risk concerns.

(m) The impact of the move on the left-behind parent or parent’s ability to present a positive plan for the child.

(n) The child’s age, stage of development and degree of maturity.

(o) The child’s views and preferences.

ANALYSIS

Re. Variation of the Supervision Order and Relocation

[16] There is an onus on the Respondents as they are the ones seeking to vary the Supervision Order and permit the relocation in the midst of a child protection application. They must demonstrate that there are compelling circumstances to justify the move and that the variation they seek is proportional to the circumstances and in the best interests of the children.

[17] Both Respondents want the Mother and children to follow the Father to Alberta so they can live together again as a family unit. The Respondents say that the variation they are seeking is proportional to the change in circumstances they are facing. The Father, as the sole income earner in the family, accepted a job in Alberta in January 2022 that significantly increased his income and ability to support the family. He says that the needs of the family compounded with the costs of litigation have made it impossible for him to support the family in Ontario.

[18] Further, the Mother says the Father’s absence has been very difficult for the children. She says that the children cry and cling to the Father every time they have to separate because the children love their father and have a close relationship with him. She says they need their Father, and they are suffering emotionally by not having their Father around. She says there has been a marked deterioration in the children’s behaviours when the Father left and a corresponding improvement when the family is together. The child, A.D., has some special needs. He has been diagnosed with Autism Spectrum Disorder and is engaged with occupational and speech therapists and resource consultants and the Hospital for Sick Children in Toronto. The Respondents submit that by not permitting the variation and relocation, the Society is causing further disruption to the family and an increased risk of emotional harm to the children.

[19] The Respondent’s submit that the change they are seeking will make little to no change to the Supervision Order as it is just a “change of city” and will not increase the alleged risk of harm to the children. They say that they are not seeking a significant variation to the Supervision Order. The Respondents say that it is primarily the Mother who does all the supervision for the Father anyway, so she does not need all the additional approved supervisors.

[20] The Respondent’s counsel argued that an order permitting the relocation will reunite the family and be in the best interests of the children. By opposing the variation, they submit that the Society is separating the children from their Father again and further disrupting the family. The Mother and Father submit that by opposing the variation, the Society is not promoting the paramount purposes of the CYFSA or supporting the least intrusive option. In the Respondent’s view, the Society is focused on bitterly fighting and litigating this matter instead of supporting the family in being together again.

[21] A trial is imminent, and this matter needs to move forward. The Respondents believe and submit that since they have abided by the Supervision Order for over one year with no concerns, the risk of harm has been mitigated sufficiently and it can continue to be properly managed by permitting the variation and relocation that they are seeking. The Respondents say that if permitted to relocate, they will continue to cooperate and follow the existing Supervision Order.

[22] The Society argues that the Respondents cannot rely upon a change in circumstances that was “manufactured” by the Respondents to justify the necessity for a variation in the Supervision Order to permit the relocation. The Society says that it is the Respondents that have caused the separation by the Father’s choice to move to Alberta. The Supervision Order already placed the children in the Mother’s care. The Supervision Order already permits the Father to reside with the children and the Mother so long as he is not left unsupervised with the children. At this time, the Society is not asking for this to change. The Society says it is the Respondents who caused the disruption for the children themselves.

[23] In my view, the Father’s move to Alberta is a sufficient change in circumstances that justifies the need for the court to conduct an analysis to determine if there is a need to change the Supervision Order. However, at the same time, the court agrees with the Society that the change in circumstances has been created or “manufactured” by the Father’s choice to move to Alberta. The Father blames the “manufactured necessity” on the Society and the costs of litigation in this matter. The Father may say his move was necessary and for economic reasons; however, that does not change the fact it was still a choice. Despite there being a Supervision Order in place that permits the Father to reside with the Mother and children, he made the choice to separate himself from them and go live in another province. In my view, it is the Respondents who have caused the disruption to their own family. The Society is not and was not responsible for this disruption.

[24] This motion has been brought in the context of a Protection Application. The finding in need of protection and the material facts all remain in dispute. The charges against the Father are serious. The Supervision Order was made because the court found it was required to mitigate the risk of harm. It permitted the Father to return home so long as he was never left unsupervised with the children. The Supervision Order was made based on the fact that the Respondents and the children were residing with family and there were other responsible adults approved by the Society that could assist in providing supervision.

[25] The Supervision Order was not made in contemplation of a move across the country. The nature and extent of the variation sought by the Respondents is, in my view, extreme. The Respondents minimized the significance of the requested variation and relocation. The Respondents are not asking to simply move cities, they are asking to change the provinces. The proposed relocation would not only limit the Mother’s ability to abide by the terms of supervision; it would make it impossible for the Society to monitor compliance - which, judging by the Respondents’ highly critical views of the Society, may be one of the intended consequences of the relocation.

[26] The Respondents made submissions that “nothing in the Supervision Order says they must reside in Ontario”, inferring that they did nothing wrong when the Mother and children did not return to Ontario after the summer visit. They said that despite being subject to a Supervision Order, they can reside wherever they wish in Canada in accordance with s. 6(2) of the Canadian Charter of Rights and Freedoms (“the Charter”) which provides:

Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:

(a) to move to and take up residence in any province;

(b) to pursue the gaining of a livelihood in any province.

[27] This entire position is frankly just wrong. The Respondents are the subjects of a Supervision Order made by the Ontario Superior Court of Justice, Family Court. The jurisdiction is Ontario. In child protection cases, whenever the Society or the Respondent/s contemplate making a significant change to an Order, they must come back to court, see DCAS v. P.A., 2022 ONSC 606. Further, if the Respondents wished to raise a Charter issue about the CYFSA and its regulations or protocol, the Attorney General would require notice of same, see s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Respondents provided no evidence that they gave notice to the Attorney General. The Father moved to Alberta unilaterally. In my view, the Respondents’ attitude to the summer visit was one of self-help. Given all the circumstances, their plan for the Mother and children to relocate prior to the trial cannot be supported by the court. In these circumstances, the parents cannot “reside wherever they wish.”

[28] The Respondents repeatedly said that if they were permitted to relocate, they will continue to cooperate with the Society and follow the Supervision Order. The court was, to put it bluntly, shocked by this submission. It was shocking because this submission was made in the face of the Mother’s very recent use of self-help by remaining in Alberta with the children in direct non-compliance with the Supervision Order and the endorsement of Krause J., dated June 8 2022. In my view, it is understandable that the Society says that they have concerns about the Supervision Order being followed. Additionally, the Society remains concerned about the Mother’s hesitancy to follow their direction, and her resistance to engage in their supportive services and offers of assistance. They are concerned about the Mother admitting to not being forthcoming with information and this may result in her refusing to report any child protection concerns or breaches of the Supervision Order. They believe this is influenced by her not believing the Father is guilty of the charges and her fears that the children’s behaviours will be misinterpreted. For these reasons, the Society is concerned about the Mother’s level of supervision for the Father and thus may have compromised her ability to comply with the Supervision Order. Further, although the Alberta Society agreed to monitor the recent summer visit and send detailed case notes to the SMCYFS, there was some difficulty in receiving the case notes on all the visits in a timely manner. I agree with the Society’s position that this matter needs to be serviced in Ontario as this is the jurisdiction of the current Protection Application and Supervision Order and it is the local Society that remains attuned to the risk of harm.

[29] The Respondents argue that the leading case of CAS Toronto vs. GM does not fit this situation because the parents are not separated, and they want to parent the children together. They submit that in this circumstance, the court does not have to be as cautious when contemplating a proposed relocation so close to a trial. I disagree. In this case, the trial of the issue of a protection finding is imminent and the assessment is still outstanding. In my view, the court must always exercise caution when there are material facts in dispute. Further, the proposed relocation is far away, and the parents take the position that they want to “parent the children together”. These factors do not alleviate the concerns of the Court. In my view, it actually reinforces to the court the strength of the parents’ denial of any risk to the children and their opposition to the Society’s involvement. As such, it reinforces the need to complete the assessment and have the trial on the finding in need of protection.

[30] At this time, given the circumstances of this case, I find that the Respondents have not met their onus to justify an order varying the Supervision Order and permitting the relocation of the Mother and children. The Respondents have not demonstrated that there are compelling circumstances to justify the move. The court found it to be in the best interests of the children to be placed in the care of the Mother under the supervision of the Society. So far, nothing has changed that finding. The Mother is a stay-at-home parent, and she remains to be a stay-at-home parent that is well connected to resources and supports in Ontario. The Respondents’ families are still supportive of the Mother and children in Ontario. In her materials, the Mother actually stated that she doesn’t rely much on assistance from the Father or any other member of the family in providing care for the children. She said that during the extended summer visit, she didn’t have to ask for the Father’s help with the kids very much and went on to say that the Father was usually at work or resting.

[31] The Mother said that the children’s behaviours have deteriorated since the Father moved to Alberta. It is understandable that the children miss their Father. I have no doubt that they do miss him, and they are distressed by his absence. However, by the Respondents’ own admissions, the Mother is the children’s primary caregiver. The current Supervision Order supports the children in the Mother’s care. Further, the children’s young age and special needs are also factors that may contribute to the children’s separation anxiety. It is unknown to the court how the children were prepared for the recent extended summer visit, or their court ordered return to Ontario. One can only assume they were further upset and/or unable to understand, especially given the fact that the Mother thought she didn’t have to return to Ontario.

[32] The Father’s choice to move to Alberta was because it is economically more lucrative so he can better support the family. Nowhere in the materials does it state that the Father cannot work in Ontario. In my view, the economic circumstances for the move do not explain or justify why the Mother and children’s move is needed before the trial. As found in the decision of Tobin J. in Windsor-Essex Children’s Aid Society v. P.A., 2016 ONCJ 459, I find that the economic reasons for the move are not compelling enough to justify the proposed relocation before the hearing.

[33] It is further unclear to the court whether the Respondent’s relocation to Alberta is actually “temporary”. The Father is working there and has found a residence for the entire family. They are requesting an order permitting the Mother to “temporarily relocate with the children” without providing evidence how long “temporary” is. It would seem to me that the intentions of the Respondents are that this be a permanent relocation. In light of the imminent trial, the court is concerned that an order permitting any relocation will be disruptive to the stability of the children’s lives. The trial and the assessment are imminent. Any temporary order made now, may result in further disruption later if the order has to be reversed.

[34] In my view, the existing Supervision Order continues to be in the best interests of the children. It meets the paramount purpose and other purposes of the Act as set out in s. 1 to “promote the best interests, protection and well-being of children,” and to “support the autonomy and integrity of the family unit” and consider the “least disruptive course of action that is available”. The Supervision Order is proportional to the seriousness of the protection concerns. The Supervision Order placed the children in the care of the Mother in Ontario. The Supervision Order permits the Mother and Father to live together in Ontario. The Father’s choice to pursue employment in Alberta prior to the trial is not a compelling reason to permit the Mother to relocate with the children at this time.

[35] For the reasons set out above, I am not satisfied with the Respondents’ evidence to make an order varying the Supervision Order or permitting the Mother and children to relocate to Lloydminster, Alberta.

Re: The Respondents’ Request to Transfer the Matter to Alberta

[36] In the Respondents’ motion, they pled, in the alternative, for an Order “administratively transferring” the herein matter to the Court of competent jurisdiction responsible for child welfare cases in Lloydminster, Alberta.

[37] The rule for transferring a child protection case is r. 5(9) of the Family Law Rules, O. Reg. 114/99. It reads,

Change of place for child protection case - Notice of a motion under subsection 91 (3) of the Child, Youth and Family Services Act, 2017 to transfer a case to a place within the jurisdiction of another children’s aid society shall be served on the parties and the other children’s aid society, with evidence in support of the motion.

[38] Section 91(3) of the CYFSA reads,

Transfer of proceeding – Where the court is satisfied at any stage of a proceeding under this Part that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there.

[39] As a first step, in order for the court to contemplate the transfer of this matter to a court in Lloydminster, Alberta, I would need evidence that the appropriate children’s aid society or child welfare agency in Lloydminster, Alberta had been served and they were given a chance to respond and/or consent. The Respondents gave no evidence of same.

[40] This motion was brought by the Respondents. They are the ones requesting to vary the Supervision Order and/or to transfer the matter to Lloydminster, Alberta. They knew that the Ontario Society objected. The Respondents made submissions criticizing the Society for producing no evidence to suggest that the Alberta Society will no longer assist with monitoring the current supervision order. They claimed that the Alberta Society has demonstrated an ability and willingness to monitor the current supervision order. However, the Respondents failed to produce any evidence to suggest that the Alberta Society would accept the full transfer of this matter. An interprovincial request for a children’s aid society to “monitor” a supervision order in the context of a visit is very different than requesting a full transfer of a matter, especially when that matter has not been resolved with a final order.

[41] Further, the Respondents failed to provide sufficient evidence regarding the process of transferring this matter to a “Court of competent jurisdiction responsible for child welfare cases in Lloydminster, Alberta”. The Respondents did not even identify the court, it’s address, or the steps required for an Ontario Superior Court of Justice - Family Court to “administratively transfer” this matter to the Provincial Court of Alberta that hears all child protection cases.

[42] In my view, it is clear that the Respondents are the ones who bear the onus of giving notice to the Alberta Society of the requests made in their motion. The Respondents did not provide the court with any evidence of giving the Alberta Society notice, nor did they direct me to my authority or jurisdiction to transfer an open child protection matter to the Alberta Society or the Alberta court on a without notice basis.

[43] In addition, in my view, the Respondents failed to provide the court with sufficient evidence to examine whether there is a “preponderance of convenience” in favour of conducting or continuing this matter in the Alberta. I am not satisfied with the evidence provided by the Respondents to grant the order requested to transfer this matter to the court of competent jurisdiction responsible for child welfare cases in Lloydminster, Alberta.

Order

[44] For the reasons set out above, the Respondents’ motion is dismissed.

[45] If counsel cannot agree on costs, I will receive written submissions on a 7-day turnaround, commencing with the Applicant on or by November 2, 2022, followed by responding submissions on or by November 9, 2022, then reply submissions, if any, on or by November 16, 2022. Cost submissions shall be no more than 2-pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my judicial assistant at barriejudsec@ontario.ca. If no submissions are received by November 16, 2022, the issue of costs will be deemed to have been settled between the parties.

Jain J.

Released: October 24, 2022