Siver v. Siver, 2010 ABQB 755

Court of Queen ’ s Bench of Alberta Citation: Siver v. Siver, 2010 ABQB 755 Date: 20101202 Docket: 4803 154558 Registry: Edmonton Between: Collin Blake Siver Plaintiff - and - Jennifer Lynn Siver (also known as Jennifer Lynn Renner) Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Siver asks the court to transfer these proceedings, which were initiated by him in the Judicial District of Edmonton, to the Judicial District of Fort McMurray, where both parties currently reside and where the parties ’ businesses are located. Ms.

Siver opposes the application on the grounds that, after having made inquiries for legal services in Fort McMurray, she has now chosen a lawyer in Edmonton and that she may have to change her existing residence in which case she may move to the Edmonton area. [ 2 ] The application is denied: it is not unreasonable, within the meaning of Rule 3.5, for the proceedings to carry on in the judicial district of Edmonton. Mr. Siver is at liberty to renew his motion if these proceedings become one of the infinitesimally small proportion of divorce proceedings which go to trial.

[ 3 ] An unreasonable decision to continue the proceedings in one judicial district is one which “ in the main, is not supported by any reasons that can stand up to a somewhat probing examination ” : Southam Inc. [ 4 ] Here, Ms. Siver ’ s wish to have the proceedings go forward in Edmonton where they were commenced cannot be characterized as “ unreasonable ” . On the contrary, given the fact that the proceedings were commenced in Edmonton, that Ms.

Siver has now retained a lawyer in Edmonton, that her husband has had contact with several law firms in Fort McMurray, that she may have to re- locate to the Edmonton area, and that the proceedings are only in the pre-trial stage where none of the parties nor their children nor trial witnesses are typically required to appear, her reasons for wanting the matter to proceed in Edmonton do stand up to examination. However, Mr.

Siver is given leave to renew his application if these proceedings, exceptionally, require a trial; at that stage, it might be useful to re-assess the balance of convenience given the expected trial witnesses. Cases and authority cited [ 5 ] By the court: Canada (Director of Investigation and Research , Competition Act) v Southam Inc. 1997 CanLII 385 (SCC) , [1997] 1 S.C.R. 748 , 1996 S.C.J. No. 116 1. Background

a) Factual [ 6 ] The parties, who are the parents of two young children, have a residence in Anzac, Alberta, a community which is close to Fort McMurray. The parties ’ businesses are also located in Fort McMurray. Fort McMurray is located approximately 450 kilometers North of Edmonton. [ 7 ] When their marriage broke down, the parties agreed to participate in a collaborative law divorce process; each of their lawyers for that process was located in St. Albert, a municipality close to Edmonton and within this judicial district. Perhaps not coincidentally, Ms. Siver has relatives in St. Albert. Mr.

Siver asserts that, as part of the collaborative law process, his lawyer in that process filed divorce proceedings in Edmonton. Mr. Siver has now retained a different lawyer to complete the process; that lawyer is located in Fort McMurray. [ 8 ] It is represented on behalf of Ms. Siver that she had difficulty in finding legal representation in Fort McMurray, in part because her husband had utilized major law firms there. She also notes that the mortgage on the matrimonial home is currently in arrears and that she may therefore have to leave Anzac.

Finally, she indicates that the retainer she has arranged with her lawyer in Edmonton does not contemplate that her lawyer of choice will regularly travel to Fort McMurray.

b) Legislative [ 9 ] There have been subtle changes between the current Rules and the former Rules with respect to the issue of where legal proceedings should be commenced and on what basis they can be transferred to a different judicial district. [ 10 ] The Rules which are currently in effect state: Determining the Appropriate Judicial Centre 3.3(1) The appropriate judicial centre for the purpose of these rules is

(

a) the closest judicial centre, by road, to the Alberta residences or Alberta places of business of all the parties, or (

b) if a single judicial centre cannot be determined under clause (a), the judicial centre that is, by road, the closest to the Alberta residence or Alberta place of business of one of the parties, that party being selected by the party starting the action.

(2) If a party carries on business in more than one Alberta location, the place of business in Alberta of that party for the purposes of this rule is the place of business that is nearest to the location at which the matters in issue in the action arose or were transacted.

(3) Despite subrules (1) and (2), the parties may agree on a judicial centre in which to start and carry on the action, in which case the judicial centre agreed on by the parties is the appropriate judicial centre unless the Court otherwise orders. . . . Transfer of an Action 3.5 The Court may order that an action be transferred from one judicial centre to another (

a) if the Court is satisfied that it would be unreasonable for the action to be carried on in the judicial centre in which it is located, or (

b) at the request of the parties. [ 11 ] The Rules in effect up to November 1, 2010 stated: 6.1

(2) For the purposes of commencing an action, the closet judicial centre shall, unless otherwise directed by the court, be determined in accordance with the following: (

a) the closest judicial centre is the judicial centre that, by highway travel, is the nearest to the residences or places of business of all the parties to the action; (

b) where a single judicial centre cannot be determined under clause (

a) to be the closest judicial centre for all the parties to the action, the closest judicial centre shall be the judicial centre that, by highway travel, is the nearest to the residence or place of business of one of the parties to the action, that party being selected by the party commencing the action; (

c) where (

i) a single judicial centre cannot be determined under clause (

a) to be the closest judicial centre for all of the parties to the action, and (ii) it is not obvious in the particular case which judicial centre is the closest judicial centre under clause (b),

the party commencing the action shall select a judicial centre that for the purposes of the action shall be considered to be the closest judicial centre; (

d) if a party to an action carries on business in more than one location in Alberta, the place of business in Alberta of that party is the place of business that is the nearest to the location at which the matters in question in the action arose or were transacted; (

e) a residence or a place of business that is located outside of Alberta shall not be taken into consideration for the purposes of this Rule.

(3) Notwithstanding subrule (1), a document commencing an action may be issues or filed, as the case may be, at a clerk's office located in a judicial centre other than the judicial centre that is the closest judicial centre as determined under subrule (2) if (

a) the Court so directs, (

b) the Court directs the transfer of proceedings under Rule 12, or (

c) all the parties to the action so agree in writing.

(4) Where (

a) an action has been commenced by the issuing or filing of a document with the clerk, but (

b) the document that commenced the action was not issued or filed in accordance with this Rule, the commencement of that action is not invalid and the document commencing the action is not a nullity by reason only that the document was not issued or filed in accordance with this Rule. . . . 12. The court may at any time direct that all proceedings in any action be transferred to the office of the clerk of any other judicial district and thenceforward the proceedings shall be intituled and continued in the other judicial district. 2. At this stage, should the proceedings be transferred to Fort McMurray? [ 12 ] The motion to transfer the proceedings to Fort McMurray is denied.

a) The test for transfer of existing proceedings is whether it would be “ unreasonable ” for them to continue in the judicial district where they are currently found. [ 13 ] One of the innovations of the New Rules is to establish a test for the transfer of proceedings from one judicial district to another. That test is whether it would be unreasonable for the action to be carried on in its current judicial centre.

[ 14 ] The notion of “ unreasonableness ” was explained by the Supreme Court of Canada in Southam Inc. : “ An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. ” Although the effect of that decision on the standard of review has been overtaken by later decisions, the Court ’ s articulation of the meaning or definition of “ unreasonable ” remains useful. [ 15 ] Another common definition of unreasonable is irrational. [ 16 ] In other words, an unreasonable decision is one that has no logical grounding.

It is not a decision which is open to dispute, it is not necessarily the best, or smartest or cheapest decision; it is a decision which doesn ’ t make any sense.

b) Are Ms. Siver ’ s reasons for wanting the action to go ahead in Edmonton irrational? [ 17 ] The reasons given by Ms. Siver for wanting the action to go ahead are not irrational. [ 18 ] Perhaps the most important reason advanced by Ms. Siver to have the proceedings continue in Edmonton is that she has found a lawyer whom she trusts, that lawyer is in Edmonton and she does not have the money to pay that lawyer to travel up to Fort McMurray. A litigant ’ s choice of lawyer should, where possible, be honoured. Ms.

Siver ’ s choice of an Edmonton lawyer is not, in all the circumstances, unreasonable: the resolution of the marital dispute started here, the husband arranged to have the Statement of Claim issued here, and Ms. Siver has family here. As to the last point, it is possible that the lawyer she has retained was in fact recommended to Ms. Siver by members of her family who live in the Edmonton area. [ 19 ] Moreover, Ms. Siver explains that she does not have enough money to pay a lawyer to travel up to Fort McMurray.

She indicates that she is no longer employed by the company of which she is a shareholder, so that her financial resources are limited. [ 20 ] In addition, Ms. Siver states that she did attempt to find a lawyer in Fort McMurray but that her husband had already spoken with most of the bigger firms there. The problem of potential conflicts of interest within the legal community in a smaller community is real; that potential is exacerbated where, as here, one of the spouses operates a business in the community and may well have relied on legal firms in the community for ongoing business advice.

In those circumstances, it is not irrational to look for a legal advisor outside the community where one resides. [ 21 ] Indeed, Ms. Siver states that there are mortgage problems with the matrimonial residence and that it is not impossible that she would have to relocate away from Anzac. If the matrimonial home were sold, Ms. Siver would give consideration to moving to St.

Albert where she has family; on the other hand, because the couple have young children, every reasonable effort will undoubtedly be made by each of the parents to choose a residence that will promote the children ’ s best interests in maintaining contact with each parent. [ 22 ] Finally, an important consideration is that the application is brought at what is really the initial stage of this action. Both anecdotally and statistically, we know that only a miniscule percentage of divorce actions result in trials.

There is no evidence at this stage that this action is likely to end up in a trial; on the contrary, since the parties started out by using a collaborative law process, they are presumably both aware that it can be cheaper, faster, easier on themselves and most importantly best for the children, to avoid unnecessarily conflictual processes. During the pre-trial process, it is not usual for the parties, or their children, or their potential trial witnesses, to be present at the courthouse.

Given the technological advances which permit secure communication between client and lawyer at a distance, as well as fast, secure, and recordable communication between lawyers, electronic access between lawyers and the courthouse, and instantaneous audio-visual communication between lawyers and the courtroom, there is not nearly as much need today for lawyers to be physically close to a courthouse as there once was.

Therefore, there is no reason to believe that these proceedings will be hampered in any way if the action proceeds in Edmonton. [ 23 ] Nevertheless, in order to ensure that neither of the parties is put to unnecessary cost, time and even risk - given the potential danger of driving long highway distances in winter - Mr. Siver is given leave to renew his application to transfer the proceedings to Fort McMurray if and when this action is entered for trial. At that stage of the proceedings, the finances of the parties will be more transparent and the number and location of prospective trial witnesses will be known.

The court can then re-assess its decision concerning the reasonableness of continuing the trial in Edmonton.

3. Costs [ 24 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 29 th day of November, 2010. Dated at the City of Edmonton, Alberta this 1 st day of December, 2010. J.B. Veit J.C.Q.B.A. Appearances: Mr. Navdeep S. Virk, Virk Law for Mr. Siver James E.B. Johnston, McPike Johnston for Ms. Siver