Before you issue an Application for relief in family law, you first need to determine the appropriate municipality in which to bring your Application.
This article deals with choosing the appropriate municipality within Ontario. For a determination of whether or not Ontario should assume jurisdiction over a case (i.e. where there is a competition over jurisdiction between Ontario and another province, or country), you would need to refer to section 22 of the Children’s Law Reform Act or sections 4 and 5 of the Divorce Act.
Where an Application is to be commenced
- If you are asking the court to make an order dealing with custody of or access to a child, the Application must be brought in the municipality where the child “ordinarily resides”.
- If there are no issues of custody and access to be dealt with, the Application can be brought in the municipality where either party resides.
- Alternatively, the Application can be brought in a different municipality if both the Applicant and Respondent agree, and the court in that municipality has given permission in advance for the case to be started there.[1]
There is a special exception provided for cases in which where there is immediate danger that a child is going to be removed from Ontario, or immediate danger to a child or a party’s health or safety. If this immediate danger exception applies, a party may start a case and bring a motion in any municipality, but immediately after the motion is heard the case must thereafter be moved to the appropriate jurisdiction.[2]
There are also special sections in the Child and Family Services Act dealing with where child protection proceedings are to be heard (i.e. proceedings brought by the Children’s Aid Society when a child is in need of protection), and where adoption proceedings are to be heard. Child protection proceedings are usually heard in the jurisdiction where the child ordinarily resides, however if the child has been removed and brought to a place of safety before the hearing commences, the matter will be heard in the municipality where the child was removed from. If the child has been placed in the Society’s care the matter will be heard in the Society’s territorial jurisdiction, and if the child is placed in a party’s care under a Supervision Order, the matter will be heard in the municipality where the child is placed. An application for adoption of a child may be heard either in the municipality where the Applicant (the person adopting the child) lives, or where the child lives.[3]
Asking the Court to transfer an Application to a more convenient municipality
Even if a case is commenced in a proper municipality, it is possible to ask the court to transfer the case to a different municipality if it is “substantially more convenient” to deal with the case there.
In assessing the “substantially more convenient” requirement, the court is to look to where the parties reside and the inconvenience of travel, the ability of the parties to financially continue on the case if transferred, the availability of the best evidence including witnesses, whether the case is being case managed, where the children are ordinarily resident and the best interests of the children, and the stage of the litigation.[4]
An example of a case that met this test is the 2009 Superior Court of Justice decision, Swearengen v. Swearengen.[5] In this case, the husband and wife both suffered from disabilities. The husband properly commenced the Application in the municipality where he lived, but the wife brought a motion asking the court to transfer the matter to her municipality instead. The wife’s disabilities were significant and she produced medical evidence demonstrating that it was very difficult for her to travel. The wife also had limited financial resources and could not afford to travel to the husband’s municipality for the trial. Although the husband was also disabled, there was nothing in his medical evidence specifically recommending that he not travel. The majority of the witnesses who might have been required to testify also lived in the wife’s municipality. The court granted the wife’s motion to transfer the application to her municipality, finding that it would be significantly more convenient for the trial to be heard there.
If you have questions about this article or any other family law matters, please contact Nadine Russell at nadine.russell@siskinds.com or 519.660.7839.
[1] Rule 5(1) of the Family Law Rules, O Reg 114/99.
[2] Rule 5(2) of the Family Law Rules, O Reg 114/99.
[3] Sections 48 and 150(1) of the Child and Family Services Act, RSO 1990, c C 11.
[4] MacDonald v Jensen, 2011 ONSC 6932 at para 21.
[5] Swearengen v Swearengen, 2009 CarswellOnt 648 (Sup Ct) at paras 28, 33, & 35.