Transferring an action to another registry or even out-of-jurisdiction is a very real and serious issue in many family law files, especially with mobility being on the rise.

Often to find new lives or to get away from an old one, a custodial parent will relocate after a divorce ... and take the children with her (or him). But divorce actions are typically filed concurrently or very soon after separation because one or both of the spouses is anxious to assert so they can protect their alleged share of family assets, or get a flow of necessary support going asap.

That family law action is initiated in the registry where the family lived. When the custodial parent moves, this leaves the non-custodial parent with an advantage: "home-court", as it were: the ability to file any new application but a short car-drive away.

The relocating custodial parent usually prefers, on the balance of convenience, to have the file transferred to her/his new jurisdiction but this is often fought tooth and nail by the non-custodial parent as, with the kids already living in Timbukto, transferring the file is just the feared last nail in the coffin of his parenting rights.

[Court file moving truck image]Litigants always have the option, if support is the only issue, to defer to the uniform Interjurisdiction Support Orders Act in their jurisdiction, or the inter-provincial process provided at §18 and §19 of the Divorce Act (if the action is one made pursuant to a marital breakdown)to obtain relief without having to travel or hire a lawyer in Timbukto. No need to transfer the file. But there is no strong line of Canadian jurisprudence that requires litigants to take that route if available so two routes appear to exist concurrently, at the option of the applicant for variation.

The rule of thumb is that applications for court orders involving children named in extant family law proceedings, should be brought in that court and in that registry. But if a litigant believes that the future would be better served if the action was transferred to another location, she (or he) can make an application to transfer.

Substantially Connected

In some jurisdictions, statutes exist to offer guidance, the most important being a uniform statuites if one exists (for uniformity). Canada does and to use British Columbia as an example, the uniform statutes has become the Court Jurisdiction and Proceedings Transfer Act - known affectionately as the CPJTA. Nova Scotia and Saskatchewan have statutes of the same name.

The CJPTA scheme was endorsed by the Supreme Court of Canada in Teck Cominco Metals v. Lloyd's Underwriters:

"(T)he CJPTA ... constitutes a complete codification of the common law test for forum non conveniens. It admits of no exceptions."

[See the Legal Definition of Forum Conveniens.]

The Divorce Act allows transfers of files from one province to another at §6 if:

"... the child of the marriage in respect of whom the variation order is sought is most substantially connected with another province."

Best Interests of the Children

In Holt v Lippert, Justice of the Manitoba Court of Appeal wrote:

"§6(2) of the Divorce Act required the motions judge to go through a two-step process in deciding whether to transfer the custody dispute to Ontario. The first question she was required to ask herself was: With which province are the children most substantially connected? Only if the answer to that question was Ontario, could she then have gone on to the second question: Is the transfer of the application to Ontario in the best interests of the children?"

Balance of Convenience

Using the Province of British Columbia as an example, both the Supreme Court Civil Rules and the Supreme Court Family Rules allow, at Rules 23-1(13) and 22-2(13 respectively, for the transfer of a file from one registry to another ... but no criteria (to supplement the CJPTA) is provided to guide the litigant on whether or not the application might be successful.

But in British Columbia, the Provincial Court (Family) Rules do codify the threshold at Rule 19:

"The application to transfer may be made for the purposes of all or any part of the proceedings.

"Before granting permission to transfer a file to another registry or to file an application at another registry, the judge must consider: (a) the balance of convenience, and (b) any special circumstances that exist."

Elsewhere, the Ontario Family Law Rules (2012), Rule 5.8, use the words substantially more convenient, a higher threshold (emphasis added):

"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."

Indeed, the balance of convenience is the overriding rule in non-family civil litigation. As the authors of the Civil Procedure Encyclopedia point out:

"Balance of convenience depends on where the parties and witnesses are, not where the lawyers live or have their offices."

"Prima facie the plaintiff can select the place of trial and the onus is on a party seeking a different venue to show that the balance of convenience substantially favours a change."

Legal Opinion

Transferring a file from one registry to another, or to another judicial district outside of the province of origin, will usually be assessed against a balance of convenience or, to use the words adopted by Justice White of the Ontario Supreme Court, High Court of Justice, in Latkiewicz v. Murray:

"The preponderance of convenience must be considerable."

Or, that standard may defer to a simple balance of convenience or the best interests of the child in any event. The true and applicable threshold may well depend on rules of court, if any, and the context of the application; i.e. whether it is a family law or non-family law civil case.

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