Court of Appeal for Ontario

Date: 2025-04-29
Docket: COA-24-CV-0469
Coram: Sossin, Monahan and Madsen JJ.A.

Between

Manpreet Dhaliwal
Respondent in Family Law Application / Plaintiff in Civil Action (Appellant)

and

Hardeep Singh Nijher
Applicant in Family Law Application / Defendant in Civil Action (Respondent on Appeal)

and

Gurmeet Singh Nijher, Devinder Kaur Nijher, Mandeep Kaur Nijher, and Jaspreet Randhawa
Defendants in Civil Action (Respondents on Appeal)

Appearances:
Manpreet Dhaliwal, acting in person
Siddharth S. Joshi, for the respondents

Heard: 2025-04-23

On appeal from the order of Justice William M. LeMay of the Superior Court of Justice dated March 19, 2024, with reasons reported at 2024 ONSC 1591, and from the costs order dated November 4, 2024, with reasons reported at 2024 ONSC 6052.

Reasons for Decision

Background

[1] The parties were married for 14 months and did not have children. Following their separation in 2019, the husband, who is the respondent on appeal, sought a simple divorce. The wife, who is the appellant, filed an Answer, seeking equalization, spousal support and other property-related relief. She also brought a concurrent civil action against the husband and four members of his family (the “defendants”), seeking damages for intentional infliction of mental distress. The claims were heard together in an eight-day trial following which the trial judge dismissed all of the appellant’s claims except equalization, which he partially allowed. The appellant was subsequently ordered to pay costs in the amount of $85,000.

[2] It is evident that the appellant was deeply hurt by the separation, and saddened that the marriage did not unfold as she had hoped. She was also disappointed by the trial outcome and clearly felt that the trial judge did not fully “hear” her experience or perspective.

[3] However, while the appellant challenges every order arising from trial and seeks leave to appeal the costs order, she alleges no errors of law. Rather, she alleges errors in findings of fact and credibility. She also alleges bias on the part of the trial judge, arising from what appears to be an allegation of uneven scrutiny of the evidence. It is not the role of this court to retry the case, re-weigh evidence, or make fresh credibility determinations. Absent palpable and overriding error, which we do not find, it is not for this court to intervene.

[4] For the reasons set out below, the appeal is dismissed. Leave to appeal the costs order is denied.

[5] While we will briefly canvass the substantive issues challenged by the appellant, we start by noting that the trial judge, who had the benefit of hearing the oral evidence directly, made significant credibility findings against the appellant. Those findings are not easily disturbed on appeal. In particular, he found that her evidence was vague and that it generally did not accord with the documentary evidence. He also found that the appellant had difficulty maintaining a consistent position on issues in the trial. He rejected her evidence where it differed from that of other witnesses. This determination was open to him. His reasons demonstrate that he fairly considered the appellant’s evidence.

Property Claims

[6] The trial judge’s analysis of the appellant’s equalization claim reflects no error, nor does his conclusion regarding the quantum of the equalization payment. He carefully considered the claim, discussing the disputed items on the comparative net family property statement; namely, a disagreement about the increase in value of an investment property during the marriage, and whether the respondent husband owed a debt to an uncle at the date of marriage in relation to wedding expenses.

[7] The modest increase in the value of the investment property over the course of this short marriage was supported by expert evidence admitted on the consent of the appellant. We find no error in the decision not to admit evidence of the appellant’s proposed expert, who was not identified as a witness in the pre-trial conference or at the exit-pre-trial. The purposes of those pre-trial steps are to organize the trial and ensure that neither party is ambushed at trial. We also find no error in the trial judge’s determination that the respondent did not owe his uncle $20,000 on the date of marriage. There was no documentation to support the existence of a loan, and no evidence that the uncle demanded repayment. Further, the trial judge found as a fact that the respondent had savings on hand to pay for the wedding.

[8] The appellant appeared to make alternative claims in relation to certain payments made by the respondent to his parents during the marriage: either that they were evidence of improvident depletion supporting a claim to unequal division under s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3, or that they were payments giving the appellant a proprietary interest in the respondent’s parents’ home. The trial judge considered the evidence of those payments and determined that some were in the nature of rent (given that the parties lived with the respondent’s parents), while others were essentially offset by equivalent expenditures that benefitted the parties. We find no error in the conclusion that neither unequal division nor the claim to an equitable interest in the property had been established. Both conclusions rest on accurate statements of the law and factual determinations available to the trial judge.

Spousal Support

[9] The trial judge also carefully considered the appellant’s spousal support claim. We neither find error in his statement of the applicable law nor in his application of the law to the facts as he found them. This was a 14-month marriage with no children. The appellant was able to pursue a college program during the marriage, and following separation found employment earning over $50,000 per year. The trial judge found the appellant’s allegation of “substandard housing” after separation to be unsubstantiated by the evidence. Further, the trial judge found that she had additional income from self-employment. The appellant’s claims based on “callous abandonment” and “lost opportunities” to start a consulting business and find a suitable mate, were appropriately found to be without merit.

[10] The trial judge’s conclusion that neither compensatory nor needs based support was appropriate was entirely reasonable. Further, he appropriately acknowledged that the immigration sponsorship agreement was “very much relevant,” and he duly considered it. We find no error in his conclusion that on the facts of this case, the appellant was independent as at the date of trial, had in fact been advantaged rather than disadvantaged by the marriage, and required no further support. The appellant’s concerns about how her income or the income of the respondent was calculated is not material given the conclusion that she had no entitlement to support in any event.

Damages for Intentional Infliction of Mental Distress

[11] The appellant made the serious allegation that the respondent subjected her to physical, psychological, emotional and financial abuse, as well as forced sexual interaction. She highlighted a range of additional complaints surrounding the respondent’s conduct and her unhappiness during the marriage.

[12] The appellant alleged that the defendants harassed and demeaned her, did not support her search for employment or obtaining a drivers’ license, and that they were verbally abusive including when she was told to leave her in-laws’ home.

[13] While we recognize the appellant’s disappointment and unhappiness with the marriage, and her perspective that she was treated poorly, we find no error in the approach of the trial judge or in his conclusions on this issue.

[14] The trial judge correctly set out the law regarding claims for damages in relation to intentional infliction of mental distress, citing Prinzo v. Baycrest Centre for Geriatric Care; Colistro v. Tbaytel, 2019 ONCA 197, para 14; and Piresferreira v. Ayotte, 2010 ONCA 384. Reviewing the evidence carefully, and in the context of his overall assessment of credibility, he found that the appellant could not meet any branch of the test: the conduct was not flagrant or outrageous; it was not calculated to produce harm; and did not result in visible or probable illness.

[15] With respect to the appellant’s claims against the respondent, the trial judge emphasized that allegations of domestic violence must be treated seriously. However, he simply did not believe the appellant’s evidence. He noted that on cross examination, she was compelled to acknowledge that by text message, the respondent never swore at her, never put her down, never humiliated her and never made any threats. He did not accept her testimony that their in-person interactions were completely different. He gave specific reasons for rejecting her allegation that the respondent slapped her and found that her allegations of sexual assault suffered from a lack of particularity. He accepted the respondent’s evidence that he did not assault the appellant. The trial judge also disbelieved much of the appellant’s evidence with respect to the defendants’ conduct. To the extent that he did believe her evidence, he found that the defendants’ conduct was neither flagrant nor outrageous.

[16] While unnecessary, the trial judge also addressed the second and third elements of the test to demonstrate intentional infliction of mental distress. He concluded that neither the respondent’s nor the defendants’ conduct was calculated to produce harm. Rather, the testimony pointed only to “normal human interactions.” Further, he concluded that the appellant could not show visible and provable illness, finding that any psychological illness that she could point to was instead related to her personality and character traits.

[17] In sum, the trial judge made no legal error, and the factual findings upon which his conclusions rest were available to him on the evidence. In that context the approach of this court is deferential.

Miscellaneous Claims

[18] The appellant argued at trial that she was effectively a tenant in her in-laws’ home and that as such, she was entitled to notice before eviction. The trial judge found that no tenancy had been created in this case. We agree. The appellant lived in her in-laws’ home, with whom she shared a kitchen and bathroom. There was no tenancy. We see no error in the trial judge’s conclusion that when the parties separated, the appellant had no further right to reside in her in-laws’ home.

[19] The appellant also appears to allege that the trial judge was biased because he permitted certain parts of the respondent’s evidence to be tendered while disallowing some of hers. The trial judge applied the procedural rules prescribed by the Family Law Rules, O. Reg. 114/99, and the rules of evidence. We find no imbalance or lack of fairness in the management of this trial by the trial judge, nor any basis to intervene in relation to his treatment of the evidence.

Conclusion

[20] In oral submissions, the appellant stated that she feels marked by the adverse findings in the trial decision, and that this appeal has been about restoring her dignity in the face of lasting personal and reputational impact. She compares the trial judge’s credibility findings to a criminal record hanging over her.

[21] The trial was about the legal issues arising from the parties’ separation, nothing more. It was not about the essential dignity or worth of either party.

[22] The appeal is dismissed.

[23] Leave to appeal the costs decision is dismissed.

[24] Costs of the appeal are set at $5,000 payable by the appellant.

“L. Sossin J.A.”
“P.J. Monahan J.A.”
“L. Madsen J.A.”