Hearing Locations: During a Pandemic, What is Considered “Substantially More Convenient”?
In light of the ongoing COVID-19 pandemic, when Zoom trials and court hearings are the norm, how should courts determine – geographically – which Family court jurisdiction is most appropriate for adjudicating a legal dispute between spouses?
By way of background: The Ontario Family justice system has a set of procedural edicts, contained in the Family Law Rules, that govern various aspects of the legal process. For example, the Rules state that a spouse or parent who wants to commence a legal proceeding against the other should generally do so in the jurisdiction where either of them resides. If the case deals with the custody of or access to a child, then the proceeding should usually be commenced in the municipality where the child ordinarily resides.
Even in “normal” times, that choice may not be the most convenient or practical in absolutely all scenarios. Newly-separated spouses may now live in different cities, for example, or their flexibility around court attendances might be impacted by the fact that there are children and parenting obligations in the mix.
The Rules accommodate this by allowing the choice of location to be challenged in some circumstances. This is known as a Motion to Transfer, and it requires that the requesting party meet certain tests. If he or she is successful, the court can order that the existing legal proceedings are to be transferred to a court in another more appropriate city or region.
One of the key thresholds for this, is that it is shown to be “substantially more convenient” to make the geographical transfer requested. In a pair of recent Ontario rulings, the court demonstrated a willingness to view that test through the lens of the COVID-19 pandemic, and in light of all the necessary adjustments to the hearing processes that have been prompted by it.
In Berta v. Berta, the spouses had two separate-but-intertwined actions marching in tandem through the Family courts in different cities: One in Hamilton where the husband lived, and one in Milton where neither of them lived. (The husband had commenced some of his litigation in Milton, apparently for strategic reasons). The wife, who lived in South Bruce Peninsula, asked the court to order that the Milton matters be transferred back to Hamilton.
In entertaining that request, the court reflected on the comments in another recent case, Browes v. Stevens. There, the matter was started by the mother in Welland, even though the father lived in Toronto with their children. Both claimed that they could not afford to travel to court in the city inhabited by the other, and the father asked to have the entire matter switched to where he was located. In declining to grant that order, the court in Browes considered the “substantially more convenient” test in light of some of the procedural adjustments wrought specifically by the COVID-19 pandemic, stating:
The court no longer requires parties to travel to motions or necessarily to trials. A trial in open court on this matter is not likely. …
The court in Berta drew from this earlier observation in Browes, agreeing that COVID-19 had rendered geographic challenges to be of less concern now than in the past. The litigation would likely proceed remotely, but should nonetheless be centralized to one of the two cities – in this case, Hamilton as the wife requested. The court explained:
The COVID pandemic has forced the court system to discover that with the advent of video technologies, geographic distance isn’t nearly as relevant as it used to be.
- The [husband] is correct that the [wife] could quite easily participate in a hearing in Hamilton by Zoom.
- But the [husband] could just as easily participate in a hearing in Milton by Zoom.
- This motion isn’t about whether a stand-alone motion should be heard in one city or another.
- The issue is whether a [second] motion to change would be more conveniently and appropriately heard at the same time and in the same location as a closely related [first] motion to change which has been ongoing in another city since 2017.
- Should the multiple aspects of spousal support be argued once in one city – or twice in two cities?
The court ultimately chose the former – i.e. “once in one city” – and made the order to transfer accordingly.
For the full text of the decisions, see:
Berta v. Berta, 2021 ONSC 605
Browes v. Stevens, 2020 ONSC 5632
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