Joseph v. Joseph

In the case of Joseph v. Joseph, Justice Czutrin of the Ontario Superior Court of Justice makes a short decision on the issue of the municipality in which a case should proceed.

In this case, the Applicant Mother wished to have her case proceed in the Toronto Family Court although both parties and the children resided in the Newmarket area.  Pursuant to Rule 5(2) of the Family Law Rules the mother was granted leave to issue her Application in Toronto.  Rule 5(2) provides that where there is danger to a child or a party, a party may start a case in any municipality and a motion may be heard in that municipality.  However, the rule also requires that once he motion has been heard, the case must be transferred to the municipality where the party resides or in the case of custody or access, where the child(ren) ordinarily reside, unless otherwise ordered by the court.

Irrespective of the rules, following her motion, the Applicant Mother requested leave to have her case continue in Toronto.  It appears that the mother hoped to have her matter continue in Toronto as this would prove most convenient as both parties were represented by Toronto counsel and most of the professionals who had been involved in the children’s lives were also based in Toronto.

While Justice Czutrin agreed that “the Family Law Rules do not foreclose the possibility of case proceeding and being heard in a municipality other than where children ordinarily reside and the “the test is balance of convenience”, he made clear that the cases the Applicant Mother relied on to support her position dealt mainly with the issue of where a trial should be held and this matter had only progressed to a case conference.

In any case, Justice Czutrin ruled that the proper procedure was not to request leave from the Toronto court, but that the request to transfer to Toronto “based on substantially more convenient grounds” should be made to Newmarket.  If the Newmarket court found that it was substantially more convenient for this matter to continue in Toronto, the Newmarket court could make that order.

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