Consider the following: A couple lives in Edmonton, however, one-party files for divorce in Calgary. Which is the appropriate venue, Calgary or Edmonton and which party bears the onus to establish the choice was reasonable? The case of Odland v Odland dealt with this particular issue.
In Odland the Plaintiff wife resided in Edmonton for only five months per year and the other seven months in another province while the Defendant husband lived in Edmonton. The parties had matrimonial property which included real property in British Columbia and Edmonton while also having corporations that operated out of Edmonton. The husband brought forward an application to have the action transferred to Edmonton, but his application was dismissed. This matter was then brought before the Alberta Court of Appeal to determine which venue was appropriate.
The Court considered Rule 3.3 in the context of determining who bears the onus to establish that the plaintiff’s choice of venue was reasonable. Generally, the onus of proof is on the party seeking a transfer. However, in this case the husband contended that the wife should bear the onus as this action was commenced in a judicial centre that does not comply with Rule 3.3.
Rule 3.3 of the Alberta Rules of Court state:
(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
The Court stated in paragraph 19 the following:
“In our view, rule 3.3 operates much like a presumption. If the action is commenced in compliance with rule 3.3, it is presumed that it was brought in the correct judicial centre. If a defendant wishes to challenge the plaintiff’s choice, the defendant must rebut that presumption and bears the burden of establishing that the plaintiff’s choice was unreasonable. In contrast, if the plaintiff does not commence the action in compliance with rule 3.3, the plaintiff does not obtain the benefit of the presumption and it will be necessary for the plaintiff to establish that the choice of judicial centre was reasonable.”
The Court held that the wife’s selection of Calgary was incorrect as neither party resided there. Since both parties Alberta residences are in Edmonton, that is the proper judicial centre.