MacGillivray v. Maser, (2014) 301 Man.R.(2d) 109 (QBFD)

• Judge: Yard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 08, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 301 Man.R.(2d) 109 (QBFD);2014 MBQB 6

MacGillivray v. Maser (2014), 301 Man.R.(2d) 109 (QBFD)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JA.033

David Corey MacGillivray (petitioner) v. Marlaina Dori-Magnessun Maser (respondent)

(FD 09-01-90945; 2014 MBQB 6)

Indexed As: MacGillivray v. Maser

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Yard, J.

January 8, 2014.

Summary:

The parties cohabited from June 2007 to March 2009. Their child was born in October 2008. The father commenced proceedings in the Winnipeg Judicial Centre court in May 2009. A consent interim order was issued, under which the parties shared joint custody, the mother had primary care and control and the father was to pay child support. In August 2011, the mother relocated to Brandon with the father's consent. The father ceased paying child support in August 2012. The mother had to leave school and obtain employment. In September 2013, the father moved for a review of the consent interim order. The mother sought an order transferring the proceeding to the Brandon Judicial Centre.

The Manitoba Court of Queen's Bench, Family Division, granted the motion.

Family Law - Topic 2097

Custody and access - The hearing - Change of venue - The parties cohabited from June 2007 to March 2009 - Their child was born in October 2008 - The father commenced proceedings in the Winnipeg Judicial Centre court in May 2009 - A consent interim order was issued, under which the parties shared joint custody, the mother had primary care and control and the father was to pay child support - In August 2011, the mother relocated to Brandon with the father's consent - The father ceased paying child support in August 2012 - The mother had to leave school and obtain employment - In September 2013, the father moved for a review of the consent interim order, seeking, inter alia, care and control - The mother sought an order transferring the proceeding to the Brandon Judicial Centre - The Manitoba Court of Queen's Bench, Family Division, granted the motion - Where a party sought transfer of a family law proceeding involving the custody of, access to or guardianship of a child, a particularly important factor was the best interests of the child - The decision had to be driven by considerations that focussed on the efficiency and effectiveness of the court process and prioritized the child's best interests - It was through this lens that the "convenience of the parties" in rule 14.08(6) had to be viewed - The convenience of the parties had to do with the realities and practicalities for the parties, potential witnesses, counsel and the child - Distance would certainly confound the litigation, making it more expensive, time consuming and difficult - With Winnipeg Centre being the designated forum, the additional costs and consequences would be borne entirely by the mother - This imbalance did not meet the convenience of the parties - Moreover, the child's interests would not be met or aided - The child's best interests required that the action be transferred to the Brandon Centre - See paragraphs 34 to 50.

Practice - Topic 5225

Trials - General - Venue or place of trial - Transfer by requisition - [See Family Law - Topic 2097 ].

Words and Phrases

Convenience of the parties - The Manitoba Court of Queen's Bench, Family Division, considered the meaning of the phrase "convenience of the parties" as found in rule 14.08(6) of the Queen's Bench Rules - See paragraphs 34 to 50.

Cases Noticed:

Sandney v. Sandney (1998), 128 Man.R.(2d) 96; 22 C.P.C.(4th) 301 (Q.B. Fam. Div.), refd to. [para. 21].

Dubek v. Dubek (2003), 172 Man.R.(2d) 161; 2003 MBQB 12 (Master), refd to. [para. 23].

Farand v. Farand, [2004] Man.R.(2d) Uned. 62; 2004 MBQB 139 (Master), refd to. [para. 23].

Holt v. Lippert (1996), 107 Man.R.(2d) 302; 109 W.A.C. 302 (C.A.), refd to. [para. 23].

Breker v. Breker, [1995] S.J. No. 37 (Q.B.), refd to. [para. 23].

Duprat v. Duprat (2006), 206 Man.R.(2d) 208; 2006 MBQB 190 (Master), refd to. [para. 24].

Cairns v. Watkins (2008), 244 Man.R.(2d) 176; 2008 MBQB 233 (Fam. Div.), refd to. [para. 25].

Dakota Ojibway Child and Family Services v. A.D. et al. (2004), 190 Man.R.(2d) 44; 335 W.A.C. 44; 2004 MBCA 152, refd to. [para. 27].

Director of Child and Family Services v. D.M.P. et al. (2010), 262 Man.R.(2d) 66; 507 W.A.C. 66; 2010 MBCA 112, refd to. [para. 31].

Nova Scotia (Minister of Community Services) v. S.E.L. and L.M.L. (2002), 205 N.S.R.(2d) 104; 643 A.P.R. 104; 2002 NSCA 62, refd to. [para. 32].

Statutes Noticed:

Queen's Bench Rules (Man.) - see Rules of Court (Man.), Queen's Bench Rules.

Rules of Court (Man.), Queen's Bench Rules, rule 14.08(6) [para. 18].

Counsel:

Grant W. Davis, for the petitioner;

Kelli L. Potter, for the respondent.

This motion was heard by Yard, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on January 8, 2014.