Cosentino v. Cosentino, 2016 ABQB 331

Court of Queen ’ s Bench of Alberta Citation: Cosentino v. Cosentino, 2016 ABQB 331 Date: 20160617 Docket: 4803 155253 Registry: Edmonton Between: Laura Louise Cosentino Applicant - and - Frank Ettore Cosentino Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction and Overview [ 1 ] This is an application by Laura Louise Cosentino (Purvis) seeking a declaration that Ontario is the proper forum for the hearing of corollary relief issues in this action and for an order transferring the corollary relief and disclosure proceedings to Ontario. [ 2 ] This application was initially heard by me in morning Chambers on May 5, 2016, and continued on June 6, 2016. At the conclusion of oral argument, I reserved my decision to June 9, 2016.

At that time, I advised counsel that the application was dismissed with brief written reasons to follow. These are my reasons for decision.

Facts [ 3 ] The parties were married in Edmonton on August 28, 2005. There is one child of the marriage, Salvatore Frank Cosentino, born August 7, 2008. They separated in July 2010 in Edmonton, the Applicant having moved to Ontario with Salvatore in June 2010. The parties entered into a Separation Agreement in Edmonton dated May 12, 2011, by virtue of which they agreed that Salvatore would remain in the primary care of the Applicant, with “liberal and generous unspecified visitation” by the Respondent. [ 4 ] Both parties obtained independent legal advice prior to executing the agreement.

One of the terms of the agreement provided as follows: 2.5 Each of the parents shall exert every effort to maintain free access and unhampered contact between the child and the other parent; and to foster a feeling of affection between the child and the other parent. Neither parent shall do anything which would estrange the child from the other; which would injure the opinion of the child as to their mother or father; or which would impair the natural development of the child’s love and respect for each of the parties.

The parties shall continue to instill in the child respect for both parents and grandparents and neither party shall by any act, omission or innuendo, in any way attempt to alienate the child from either parent. The child shall be taught to continue to love and respect both parent. [ 5 ] The parties were divorced in Edmonton on November 29, 2011, by the terms of which they were granted joint custody and joint guardianship.

The judgment directed that the child was to reside primarily with the Applicant in Ontario and the Respondent “shall have reasonable and generous unspecified parenting time with the child.” The Applicant subsequently remarried and has another child with her new husband. In her supporting affidavit, she refers to her husband, Scott Purvis, as Salvatore’s father. [ 6 ] On February 23, 2016, the Respondent filed an application seeking to vary the Divorce Judgment so as to provide him with specified access in Edmonton to include one half of all school breaks and holidays.

In the event that the Applicant failed to facilitate the Respondent’s requested access, he sought a costs penalty of $500 for each day of fixed access or, alternatively, that Salvatore be relocated to Edmonton to reside with the Respondent on a full-time basis. The Respondent also sought a variation of the child support ordered in the Divorce Judgment to accord with his actual income in 2012, 2013, 2014 and 2015, and to take into consideration his costs of exercising access since 2011.

Finally, he asks that the Applicant provide him particulars with respect to the child’s school, school holidays, medical, dental and health care appointments, report cards and documentary information related to the child. [ 7 ] In his supporting affidavit, Mr. Cosentino swears the Applicant has never provided her Income Tax return as required by the terms of the Divorce judgment. In addition, he says that she has not facilitated access to Salvatore. Specifically, he says that he has travelled to Ontario two to three times a year for eight or nine days at a time in order to spend time with his son.

In July 2015, he says that he was only able to see Salvatore for five of the ten days that he was in Ontario and only for four to six hours at a time. He has never had overnight access. The only time that the Applicant has brought the child to Edmonton was in conjunction with an order directing her to bring the child when she attended court proceedings related to the divorce action. [ 8 ] According to the Respondent, the Applicant agreed during the divorce process that she would bring Salvatore to Edmonton so that he could spend time with the Respondent and his family. No such visit has ever taken place.

The Applicant refused to bring Salvatore to Edmonton to see his ailing grandfather or to attend his grandfather’s funeral. The Respondent also states that Salvatore has a large extended family in Edmonton that he has had no opportunity to get to know as a result of the Applicant’s refusal to allow him to bring Salvatore to Edmonton. Finally, Mr. Cosentino says that the Applicant has refused to provide him with the name of the school that Salvatore attends in Sault Ste. Marie. [ 9 ] The Respondent deposes that the Applicant refers to him as “Frank” when advising Salvatore that his father is on the phone.

This is confirmed by the Applicant who states in her affidavit that “Salvatore identifies with Scott as his father and calls him “dad”. Scott and Salvatore have bonded as father and son and are closely connected.” [ 10 ] In her response to Mr. Cosentino’s application, the Applicant refers to Salvatore’s strong connections to Sault Ste. Marie, including his current school, extra-curricular activities, health care providers, friends and peers, and as part of a large extended family on Mr. Purvis’ side.

The Applicant deposes that “Salvatore has no connection or relationship with any members of Frank’s extended family”, and that he has exhibited “great reluctance and significant anxiety “when asked to partake in visits with Frank given their limited relationship”. She describes Mr.

Cosentino’s decision to bring his application in Alberta notwithstanding the terms of the Divorce Judgement that Salvatore would primarily reside in Ontario, as “purely tactics and bullying”. [ 11 ] The Applicant goes on to state that Salvatore has no connection to the Province of Alberta and that all of the witnesses who have relevant testimony to offer reside in Sault Ste. Marie.

She goes on to state that “it would be highly unlikely for a fair hearing into the best interests of Salvatore to be able to take place in Alberta when all of his relevant connections and the majority of relevant witnesses reside in Sault Ste. Marie, Ontario.” Somewhat similarly, the Applicant suggests that a decision to have this issue determined in Alberta “may bring the community’s confidence in the administration of justice into question” given the community’s interest in seeing that this matter is not decided in a location where Salvatore has no connection.

Finally, she refers to advice received from her Ontario counsel that “the Superior Court of Justice in Sault Ste.

Marie is well-staffed and presided over by highly experienced judges all of whom are dedicated to hearing and trying matters involving the welfare and best interests of children on a timely basis.” The Law [ 12 ] The following sections of the Divorce Act , would appear to be relevant to this matter: 6(3) Where an application for a variation order in respect of a custody order is made in a variation proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the variation order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in

that other province. 16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. 17

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, ... (

b) a custody order or any provision thereof on application by either or both former spouses or by any other person. ...

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact. ... [ 13 ] The Applicant has referred me to a series of decisions, including Club Resorts Ltd. v. Van Breda , 2012 SCC 17 , Colburn v.

Cummins-Colburn , 2015 ABCA 397 , J.B. v. J.P.C. 2005 ABQB 99 , Toews v. First Choice Canada Inc. , 2016 ABQB 130 . The Respondent has referred me to a decision of the British Columbia Supreme Court, Cousens v. Ruddy , 2009 BCSC 1719 . Club Resorts Ltd. , and Toews are both tort cases, while Colburn and Cousens are family law cases. [ 14 ] What I take from these authorities are the following key legal principles:

a) A decision on forum conveniens is an exercise of discretion. As such appellate intervention is only justified if there is an error or law or principle, an unreasonable decision, or a misapprehension of material evidence: Cousens , at para. 4 ;

b) The burden is on the defendant “to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff”. The party must show that the alternative forum is clearly more appropriate: Club Resorts Ltd. , at para 103, 108 . At para. 109, the Supreme Court reinforces the exceptional nature of the forum non conveniens application: "The use of the words "clearly" and "exceptionally" should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed.

The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant factors are weighed, that comparable forums exist in other provinces or states.”

c) Forum non conveniens “ is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute." Club Resorts Ltd. , at para 104

d) Parties are entitled to "raise diverse facts, considerations, and concerns" to support their contention for why one forum is more appropriate than another. As such, it will not likely be possible to develop an exhaustive or prescriptive lists of what considerations may be relevant in any given case: Club Resorts Ltd. , at para 105 . What this suggests, in my view, is that a decision on forum conveniens is highly fact specific

e) The factors to be considered by a court in deciding whether to apply forum non conveniens “may vary depending on the context and might include the location of the parties and witnesses, the cost of transferring the case to another jurisdiction or of declining the stay, the impact of a transfer on the conduct of the litigation or on related or parallel proceedings, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strength of the connection of the two parties: Club Resorts Ltd . at para. 110 .

f) The court should engage in a contextual analysis “but refrain from leaning too instinctively in favour of its own jurisdiction”: Club Resorts Ltd . at para. 112 Position of the Parties [ 15 ] The Applicant contends that Ontario is the forum conveniens in this instance given Salvatore’s strong connections to that location. She points out that the child is seven years of age, born August 7, 2008, and has lived in Sault Ste Marie since he was twenty two months of age. As such, the Applicant says that the most current information in terms of how the child is doing is located in Ontario.

Any witnesses that would be required for a trial of this matter would be largely based in Ontario. By way of contrast, the Applicant says that the child has very little connection to Alberta, other than the fact that the Respondent lives in Alberta and the child was born in Edmonton. [ 16 ] The Respondent urges the court to dismiss the application to transfer his application to Ontario for a number of reasons. First,

he says that the parties were married and divorced in the Province of Alberta. Their separation agreement was also negotiated andsigned in Alberta. Second, he says that Salvatore was born in Alberta and spend the first 22 months of his life in the Province. Third, herefers to the fact that all of the members of Salvatore’s extended family on his father’s side all reside in Alberta, including hisgrandmother, aunts, uncles and cousins. Finally, he says that his application is restricted to the issue of access only and that anywitnesses that he may wish to call at a trial would all be from Alberta.

Analysis [17] It is common ground between the parties that both Alberta and Ontario have jurisdiction to hear this matter. As such, theissue is which jurisdiction is the forum conveniens, i.e. which jurisdiction is better placed to efficiently and fairly deal with the matter. [18] I accept the Respondent’s contention that his application is focused on the issue of access only. Specifically he seeks toenforce his access to Salvatore, as agreed to by the parties in their separation agreement, and set forth in the Divorce Judgment, by theaddition of specified periods of access in Edmonton.

He maintains that he is in no way seeking to change the location of Salvatore’sprimary residence in Ontario.

He says that the inclusion in his application of a request for a change in custody is an alternative remedy tobe pursued in the future only in the event that court ordered specified access was refused. [19] The fact that this application is limited to modifying a right of access already set forth in both the separation agreement andthe Divorce judgment is, in my view, significant. [20] The Applicant places sufficient reliance in support of her request to transfer this matter to Ontario on the fact that most of thecurrent information as to how Salvatore is doing is located in Ontario.

While I accept this basic proposition, in my view it tends toobscure the real issue that must be addressed in this application, namely whether it is in the child’s best interests to have a stronger andmore fulsome connection with his Father and his extended family, all of whom reside in Edmonton. [21] The determination of this issue will involve a consideration of the so-called maximum contact principle set forth in ss. 16(10)and 17(9) of the Divorce Act. McLachlin J. (as she then was) explained this principles in Gordon v.

Goertz , (SCC),[1996] 2 SCR 27, at para. 24 The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contact betweenthe child and both parents. Both ss. 16(10) and 17(9) of the Act require that "the court shall give effect to the principle that a child of themarriage should have as much contact with each former spouse as is consistent with the best interests of the child".

The sections go onto say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" the child's contact withthe non-custodial parent. The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obligesthe judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not bein the child's best interests, the court can and should restrict contact: Young v.

Young, (SCC), [1993] 4 S.C.R. 3, at pp.117-18, per McLachlin J. [22] Any expansion in the role for Mr. Cosentino in Salvatore’s life through specified access in Edmonton, must necessarily focuson Mr. Cosentino’s access plan in Edmonton, specifically how he proposes to promote the development of relationships betweenSalvatore and the many members of his extended family on his father’s side. Given that Mr. Cosentino seeks at least some access inEdmonton, evidence will be required regarding his current employment and personal circumstances in Edmonton.

The suitability of hiscurrent living arrangements in Edmonton, including any new partner and children that he may have, will obviously need to be explored,as well as his plan for child care for Salvatore for those periods of time when he may have simultaneous parenting and workresponsibilities during Salvatore’s visits to Edmonton. Evidence regarding the availability of support from extended family membersand friends, the availability of recreational facilities in the neighbourhood where Mr.

Cosentino lives, and the availability of suitableemergency medical treatment, are all issues that will require detailed information. There may well be other information touching on Mr.Cosentino’s proposed Edmonton access plan that will also be important to the resolution of this matter. [23] All of the issues described above are Edmonton-centered. While I would anticipate that much of this evidence can come fromMr. Cosentino directly, either through affidavit or viva voce evidence, other evidence may be necessary from other family membersand/or potential service providers.

I would expect that this evidence would be easily attainable in affidavit form. In the event that thismatter was to proceed to trial, then Edmonton-based witnesses would obviously be required to give evidence. [24] In these particular circumstances, I am satisfied that evidence emanating from Ontario, while likely relevant, will be of lesserimportance than the evidence required from Alberta.

How Salvatore may be doing in Ontario at the present time would, in my view, besignificant in this context only to the extent that his current life might potentially be adversely impacted by increased contact with hisFather in Edmonton. As previously indicated, the Respondent is in no way challenging the status quo as regards the child’s day-to-dayliving arrangements. [25] It is noteworthy, in my view, that the Applicant offers no evidence to suggest that the Respondent is not a loving and devotedparent, capable of providing effective parenting to Salvatore in Edmonton or, indeed Ontario.

Indeed, her affidavit is silent as regardsany concerns that she may have relative to Mr. Cosentino’s parenting skills. During oral argument, counsel for the Applicant advised thather sole objection is to access taking place other than in Ontario. The only substantive comment offered by the Applicant is thatSalvatore “has exhibited great reluctance and significant anxiety when asked to partake in visits with Frank given their limitedrelationship.” She offers no detail as to the nature or frequency of this demonstrated reluctance to visit with his Father, nor as regards his“significant anxiety”.

While the affidavit goes on to refer to the fact that the Applicant has sought special counselling for Salvatore toaddress these issues, she provides no details regarding the nature or frequency of this counselling or any advice or recommendations thatthis counsellor may have to address the underlying issues. [26] Given the history of Salvatore’s time with his Father, it is not surprising that he may be reluctant and/or demonstrate anxietyrelative to his infrequent visits with his Father. On the evidence before me, it seems clear that Mr. Cosentino is, in reality, a virtual

stranger to this child given the infrequency of their contact over the years. Again on the evidence before me, including the affidavit sworn by the Applicant, it seems clear that the Mother has done little to promote the development of a close and loving relationship between Father and soon. Rather, she seems to have created a new family with her new spouse and child, together with her spouse’s extended family in Ontario, at the expense of the relationship between the Respondent and his son.

The Applicant’s apparent refusal to provide the name of Salvatore’s school to the Respondent would seem to be entirely inconsistent with promoting an active role for Mr. Cosentino in Salvatore’s life. This is, of course, a matter that is properly considered by the court hearing Mr. Cosentino’s application. [ 27 ] Evidence from Ms. Cosentino and any other Ontario witnesses that may be required to resolve Mr. Cosentino’s court application pertaining to access can be provided in the form of affidavits.

In the event that this matter did proceed to a trial or vive voce hearing, then these Ontario witnesses could either attend in person or possibly participate via video-conference. The cost of requiring personal attendance could, in my view, be addressed by the parties in advance of any such hearing. [ 28 ] I would simply add that issues pertaining to access rarely proceed to trial. Rather, they are most commonly dealt with through agreement.

When agreement between parents is not possible, resort can be had to judicial dispute resolution and, on occasion, family law special applications most frequently heard on the basis of affidavit evidence. In my view, it seems like that most, if not all, of the evidence relevant to Salvatore’s current circumstances in Sault Ste. Marie can easily be captured in affidavit form Conclusion [ 29 ] I am satisfied that in the unique circumstances of this case, a trial would be unnecessarily time-consuming and expensive given the narrow issue to be determined. In my view, the issue raised in Mr.

Cosentino’s variation application can be most easily and efficiently determined in Alberta. The application is, accordingly, dismissed. [ 30 ] The Respondent is entitled to the costs of this application which I set at $750.00. [ 31 ] The Applicant has until June 27, 2016 to file a response affidavit relative to Mr. Cosentino’s variation application. Mr. Cosentino’s variation application is to be spoken to on June 28, 2016, at 1:00 p.m., at which time the parties may speak to the terms of an interim order dealing with summer access. Heard on the 5 th day of May and the 6 th and 9 th day of June, 2016 .

Dated at the City of Edmonton, Alberta this 16 th day of June, 2016 . M. David Gates J.C.Q.B.A. Appearances: Krista L. Frohlich for the Applicant Christopher J. Skrobot for the Respondent