Renke J

3.5: Transfer of action
10.33: Court considerations in making costs award

Case Summary

A family law Action was commenced in Edmonton by Mrs. Regular. Mr. Regular applied to transfer the Action to the judicial centre of Fort McMurray pursuant to Rule 3.5.

Justice Renke stated that the onus of proof under Rule 3.5 lies with the party applying to transfer the Action to another judicial centre. His Lordship then considered the unreasonableness criteria outlined in Rule 3.5(a). Citing Siver v Siver, 2010 ABQB 755 (CanLII), His Lordship noted that the meaning of “unreasonable” is arbitrary, irrational or having no logical grounding. This test is highly deferential to the original judicial centre selected, and the unreasonable threshold is a difficult onus for the party applying to change the judicial centre to meet.

Justice Renke noted that there are several factors informing the balance of convenience test to be used in a Rule 3.5 Application, including: the location of counsel (which is not a decisive factor); the number of parties or witnesses in the current judicial centre as opposed to the proposed judicial centre; the nature of the issues in the lawsuit; the relationship between the parties in respect of the issues in the lawsuit (for example where the interactions between the parties relating to the issues took place); the parties’ respective financial resources; and the stage of the proceedings.

Justice Renke observed that there are two more relevant factors to consider; however they are accorded less weight: the convenience of location for pre-trial motions, and the location of relevant assets.

This Action concerned the interpretation of the divorce and property contract between the parties. Justice Renke noted that the Action was properly commenced under Rule 3.3, and thus the unreasonable test applied. Justice Renke noted that the cost and inconvenience to the parties would be equal regardless of which judicial centre was used; the only issue was which party would bear those factors. Further, any Questioning on Affidavits in preparation of a Summary Judgment Application would necessitate a payment of an appropriate allowance under Rule 6.17, and therefore any inconvenience arising therefrom was mitigated. Justice Renke stated that if a number of witnesses for Trial favoured the location of the Action being transferred to Fort McMurray, the Application could be reconsidered at that time.

Justice Renke considered the factors in Rule 10.33 with respect to a costs award, but noted that because this area of law is relatively unsettled, no Costs would be awarded to either party.

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