The parties had been married for almost one year when the wife took the child of the marriage to Ontario. She alleged that the husband had physically and mentally abused both herself and her older child. In Ontario, the wife resided with her family and received social assistance. The husband filed for divorce in Nova Scotia and the wife sought an order transferring the divorce proceedings to Ontario. The respondent denied the allegations of abuse and offered to pay the transportation costs of the wife and child back to Nova Scotia in order that the proceedings could be continued there.
- When should a transfer of divorce proceedings be granted under s. 6 of the Divorce Act?
Transfer order granted.
Section 6(1) allows for a transfer of proceedings where custody is involved if the child is "most substantially connected" to another province. Chief Justice Glube holds that the primary concern must be the best interests of the child, but the court should also consider reasons related to the proper administration of justice: the reasons for removal from the jurisdiction, the strengths of the child's link with each jurisdiction, the forum conveniens and where the child might finally live.
While noting her frustration with the inability to cross-examine Mrs. DeWolfe as the application was made ex parte, on the affidavit evidence she concludes that it is in the best interests of the child that the proceedings be in Ontario and orders the transfer.
A decision on a transfer of proceedings where child custody is involved should be made on a substantial connection test:
- Would a transfer be in the best interest of the child?
- Consider the child's age, the conduct of the two spouses, any connection the child has with the area where the transfer is requested, etc.
- Would a transfer be proper for the administration of justice?
- Consider whether the removal of the child was in good faith, any forum non conveniens issues, etc.