ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-11-3324-00
DATE: 2012-10-10

B E T W E E N:

KIRANPREET KAUR LALL

Karen Dosanjh , for the Applicant

Applicant

• and -

TAJINDER SINGH LALL

Glen A. Cook , for the Respondent

Respondent

HEARD: September 13, 2012 , 2010, at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF PROCEEDING

[ 1 ] The trial of this proceeding is to take place on December 10, 2012. Mr. Lall now moves for an interim order for sale of a property at 20 Mission Ridge Trail, Brampton, which Ms. Lall says was the parties’ matrimonial home and Mr. Lall says was not.

[ 2 ] Ms. Lall opposes the sale of the property pending the trial. She submits that Mr. Lall signed a declaration under the Immigration Act undertaking to provide her with shelter and the bare necessities of life for three years following her immigration to Canada from India on November 13, 2010. She says that, in breach of this undertaking, he has failed to pay spousal support to her, although ordered by the Court in India to do so. She states that she does not have anywhere to live other than 20 Mission Ridge Trail and that she should be permitted to remain there until a determination can be made as to her right to spousal support and she can secure alternative accommodation .

THE ISSUE

[ 3 ] The issue raised in the motion is whether the property should be sold at this time, or whether the determination as to its sale should be left for the trial judge to make.

BACKGROUND FACTS

[ 4 ] Ms. Lall is 24 years old; Mr. Lall is 31. They were married in India on April 11, 2010. Mr. Lall sponsored Ms. Lall’s immigration to Canada. She arrived in Canada on November 13, 2010.

[ 5 ] Mr. and Ms. Lall returned to India on May 14, 2011. Mr. Lall returned to Canada alone on May 22, 2011. On May 31, 2011, he sent a report to the police in India, alleging that Ms. Lall had tricked him into marrying her by not disclosing that she had been previously married and had not been divorced.

[ 6 ] On June 2, 2011, Mr. Lall began a proceeding in this Court by an Application in court file FS-11-2258-00, in which he sought an annulment of his marriage to Ms. Lall and a declaration that she had committed immigration fraud. He claimed the return of $25,000.00 he claims that he and his relatives spent travelling to India to attend the wedding and sponsoring his wife to Canada; loss of wages; and punitive damages in the amount of $100,000.00.

[ 7 ] Ms. Lall returned to Canada on July 28, 2011, apparently with the help of Canadian consular authorities in India. When she arrived, she stayed, initially, with a family friend, Kesar Singh Rai, and his family. Mr. Rai has lived in Brampton since 1985, and has known Ms. Lall since she was 12 years old. His elder brother attended college in India with Ms. Lall’s father.

[ 8 ] On August 11, 2011, Mr. Lall closed the purchase of the property at 20 Mission Ridge Trail in Brampton. On the following day, he caused it to be registered in his name alone.

[ 9 ] Ms. Lall’s solicitor registered a designation of the property as a matrimonial home on August 19, 2012. On the following morning (Saturday, August 20, 2011), at 4:48 a.m., the Peel Police attended at the property in response to a call from Mr. Lall, who reported that there was a car belonging to a relative of his wife’s parked in his driveway.

[ 10 ] According to an Occurrence Report prepared by Constable Brar on August 23, 2011, Mr. Lall informed him that he was the owner of the property and had been living there for the past three weeks. In fact, the purchase had closed only twelve days earlier, on August 11, 2011.

[ 11 ] Mr. Lall informed Constable Brar that he had travelled to India on May 14, 2011, and discovered that his wife had previously been married, and had not been divorced when she had married Mr. Lall. Mr. Lall said that he had returned to Canada alone and that he and Ms. Lall had since communicated by telephone but were living at separate addresses. He stated that his wife had never stayed at the house as they were already in the separation process. He said that he was seeking a restraining order against her.

[ 12 ] The police checked the house and determined that there was no one inside. The appliances in the house were not hooked up and there were no groceries or food items in the refrigerator. None of Ms. Brar’s belongings were found in the house. The police contacted the owner of the car outside and Ms. Lall and directed them to remove the car from the driveway. They then accompanied Ms. Lall to the Cawthra Women’s Shelter.

[ 13 ] The shelter’s intake form reports that Ms. Lall was admitted on August 20, 2011, at 6:44 a.m. She reported her last address as 20 Mission Ridge, with a start date of August 20, 2011.

[ 14 ] On August 22, 2011, Ms. Lall began the present proceeding, in which she claimed spousal support, a restraining order against her husband, a freezing of assets, equalization of net family property, and exclusive possession and sale of the matrimonial home and its contents.

[ 15 ] On the same date, Ms. Lall applied, without notice, to Ricchetti J., who granted her a temporary order for exclusive possession of the property at 20 Mission Ridge Trail until midnight on August 26, 2011. Justice Ricchetti ordered that, until then, Mr. Lall was restrained from entering the home or communicating with Ms. Lall.

[ 16 ] Ms. Lall served her motion on Mr. Lall on August 24, 2011. On August 26, the parties attended before Daley J. for the return of her motion. Justice Daley noted that:

(a) Ms. Lall was submitting that the property at 20 Mission Ridge Trail was a matrimonial home but that this was disputed by Mr. Lall. Ms. Lall’s evidence, he found, was vague as to when she had occupied the home.

(b) Mr. Lall claimed that he had caused Ms. Lall to be served with his application for annulment on June 16, 2011, “near Bali Clinic, Village Hiala, District Nawanshahr Punjab, India,” but Ms. Lall disputed this.

(c) Mr. Lall asserted that Ms. Lall had instituted a proceeding against him in India in July 2011, seeking a divorce and spousal support, but Ms. Lall’s counsel denied that such a proceeding had been commenced.

(d) The parties had no children.

(e) There was incomplete evidence as to the availability of other suitable and affordable accommodation for the parties. There was evidence that Ms. Lall had offered her bank her uncle’s home as her address prior to August 2011, which she had not disclosed in her ex parte motion.

[ 17 ] Justice Daley held that Ms. Lall’s application would have be tried with Mr. Lall’s application for annulment and that, because it could not be determined on the inadequate record of conflicting and untested affidavits whether the property was a matrimonial home, this issue would have to be determined at a long motion or trial of an issue.

[ 18 ] Justice Daley said that he was not satisfied, having regard to the factors in s. 24 of the Family Law Act , that Ms. Lall was entitled to exclusive possession of the home or a continuation of the restraining order. He therefore set aside the Order of Ricchetti J. and ordered the case to proceed to a Case Conference. He directed Ms. Lall to pay Mr. Lall’s costs in the amount of $2,500.00.

[ 19 ] On September 7, 2011, Ms. Lall applied again to Ricchetti J., who held that he was not prepared, on a further motion, without notice, to reinstate his earlier order for exclusive possession or his restraining order. He stated that notice of the motion would have to be given to Mr. Lall.

[ 20 ] On December 1, 2011, O’Connor J. adjourned the matter to a trial, estimated to require 4 days, on March 26, 2012. He ordered that, in the interim, both parties were at liberty to occupy the property at 20 Mission Ridge Trail and designated which parts of the house could be occupied by each of them. He adjourned the parties’ motions to September 13, 2012, to be heard as a long motion, and directed Mr. Lall to pay his wife’s costs fixed at $1,000.00, to be set off against the costs ordered by Justice Daley.

[ 21 ] On March 5, 2012, Snowie J. conducted a Case Conference in the proceeding. She then adjourned the trial from March 26 to May 28, 2012, noting that Ms. Lall’s counsel was awaiting evidence from India.

[ 22 ] On May 29, 2012, a last minute pre-trial conference was held before Van Melle J., who directed that the case remain on the trial list and proceed when called. At the Assignment Court on June 25, 2012, however, the parties consented to a trial on December 10, 2012.

[ 23 ] On August 31, 2012, Justice Van Melle directed that because Ms. Lall’s solicitor was ill, she was to serve responding material by September 4 and that the motion would be heard on September 13, 2012.

POSITIONS OF THE PARTIES

[ 24 ] Mr. Lall submits that the property at 20 Mission Ridge Trail, Brampton, was never a matrimonial home because his wife had never lived there. He asserts that he bought the property in 2009, before the parties were married, and closed the purchase on August 11, 2011, with funds he had borrowed from his family. He submits that he cannot afford to carry the property and seeks an order directing its sale. He submits that directing that the net proceeds of sale to be held in trust pending the trial will secure them for any claim that Ms. Lall asserts.

[ 25 ] Ms. Lall submits that the parties reconciled on August 13, 2011, and that the parties lived together at 20 Mission Ridge Trail, Brampton until she was removed on August 20 th . She says that she is dependent on social assistance and has no other accommodation available her than the property, which she says was the parties’ matrimonial home from August 13 to 20, 2011.

EVIDENCE AND LAW

(a) Was the parties’ marriage valid?

[ 26 ] Mr. Lall claims that his wife deceived him by withholding information about her previous marriage, which he says was still subsisting when he and Ms. Lall underwent a marriage ceremony on April 11, 2010. This was the substance of his allegation to the police in India in June 2011, following his return from the trip that he had made there with Ms. Lall on May 14, 2011.

[ 27 ] Ms. Lall states that her previous marriage was annulled and that she informed Mr. Lall of this before they were married. She has produced the report of The Assistant Police Commissioner for the District of Jalandhar, in India, who investigated Mr. Lall’s allegation. On August 23, 2011, he issued a report stating: “My investigation till now, and after reviewing the application and statement, I found that Kiranpreet Kaur [Ms. Lall] and her parents disclosed everything about Kiranpreet’s first marriage being annulled.”

[ 28 ] In Grewal v. Kaur , [1] in 2009, S proat J., after reviewing the law of Canada governing the validity of a marriage, concluded that Immigration fraud, where one spouse has married the other for the sole purpose of acquiring citizenship status in Canada, unbeknownst to the other sponsoring spouse who thought they were entering into a genuine marriage and who was deceived as to the other spouse’s motivation for entering into the marriage, could not form the legal basis for the granting of an annulment of the marriage.

[ 29 ] Justice Sproat noted that the Applicant’s factum in that case had suggested that in India, pursuant to the Hindu Marriage Act , fraud was a ground upon which a marriage could be annulled. Justice Sproat stated that if this was disputed, then it would, as a matter of foreign law, need to be proven.

[ 30 ] Based on the foregoing, I find that Mr. and Ms. Lall’s marriage was valid.

(b) Was the property a matrimonial home?

[ 31 ] The Parcel Register for the property at 20 Mission Ridge Trail describes Mr. Lall as a person without a spouse. Mr. Lall acknowledges that this was false. He attributes the misstatement to a misunderstanding between him and his real estate lawyer, whom he says he told that he was separated from his wife.

[ 32 ] Ms. Lall states that when the parties married, she gave Mr. Lall $5,000.00 that she had withdrawn from her account at the Commonwealth Bank of Australia. Her mother gave his family an additional $10,000.00 in family jewelry as a dowry. Ms. Lall states that Mr. Lall later pressured her to return to India in May 2011 to ask her family for additional funds. He told her, according to Ms. Lall, that unless she gave him these further funds, she would not be entitled to a share in the home he had purchased.

[ 33 ] Ms. Lall states that when she was unable to secure the additional funds, Mr. Lall left her in India on May 22, 2011, and returned to Canada. He brought with him all of Ms. Lall’s travel documents, including her passport, social insurance card, and health card.

[ 34 ] It is not disputed that when Ms. Lall returned to Canada on July 28, 2011, she stayed initially with Mr. Rai and his family. She asked Mr. Rai and his wife to speak with Mr. Lall about their dispute. Mr. Rai states in an affidavit supporting Ms. Lall’s position that on August 3, 2011 (his affidavit says August 31 but it is clear from his chronology of events and the context that this is a typographical error and that August 3, 2011, was intended.), he telephoned Mr. Lall, who seemed eager to have their dispute resolved.

[ 35 ] According to Mr. Rai, Mr. Lall informed him that he would need to speak to his family before making any decision about his dispute with Ms. Lall. On August 6, 2011, he called and advised Mr. Rai that his parents would like to be a part of any future discussions relating to the couple’s future negotiations and ongoing relationship.

[ 36 ] Mr. Rai states that on Saturday, August 13, 2011, he received a further call from Mr. Lall, who informed him that he would like to settle things quickly and that his parents were not going to be involved in any further discussions. He suggested that Mr. Rai bring Ms. Lall to their home at 20 Mission Ridge Trail and stated that Ms. Lall was aware of the address. Mr. Rai states that he and Ms. Lall arrived at 10:30 a.m. and that Mr. Lall invited them in. There was very little furniture and it was clear that Mr. Lall had just moved in. Mr. Rai states that Mr. Lall joked that now that Ms. Lall was home, she could pick out what she liked.

[ 37 ] Mr. Rai says that he remained at the house for 45 minutes. He says that Mr. Lall was not very interested in talking about the incident, but blamed his parents and certain family members “for causing him to believe stuff”. Ms. Lall, describing the same conversation, states that Mr. Lall said that he had been “set up” by people in India, and had been “brainwashed” into believing that Ms. Lall’s first marriage had never been annulled and that she was still married. He began to cry and beg for forgiveness. He indicated that his parents were furious that he had married someone who was previously married and had threatened to disown him. This had resulted, he said, in his having acted the way he had toward her.

[ 38 ] Ms. Lall further states that on the same day, her cousin, Manjinder Singh Thind, came to the house. She states that Mr. Lall was hospitable toward him and did not show any signs of discord between him and Ms. Lall. Mr. Thind provided an affidavit in support of Ms. Lall. He is 37 years of age and has lived in Brampton since 1995. He has known Ms. Lall since she was born.

[ 39 ] Mr. Thind states that on August 7, 2011, at the request of Ms. Lall, he spoke with Mr. Lall, who said that everything was okay between him and his wife. He said that they had resolved their differences and that he believed that someone had given him false information about her having an affair. Mr. Thind later spoke to Ms. Lall and advised her of this.

[ 40 ] Mr. Thind further states that on August 13, 2011, which he mistakenly believed was a Sunday, he called Mr. Lall, who invited him to come with Ms. Lall to their home at 10 Mission Ridge Trail. Mr. Lall had some things that Mr. Thind’s brother had sent to him from India for Mr. Thind’s son. When they arrived, Mr. Lall brought these things from the upstairs of the house and gave them to him. Mr. Thind says that he was there for approximately two hours and left at about dinner time.

[ 41 ] Five days later (on August 18, 2011), according to Ms. Lall, her husband drove her to her uncle’s home, explaining that there wasn’t much food at their home at 10 Mission Ridge Road. He told her that he had not yet told his parents that they were back together, and that they would check on the house for the night, while he made a short business trip to Winnipeg. He told her that she could pick up a spare key to the home from his partner, Mandeep Singh.

[ 42 ] According to Ms. Lall, Mr. Rai drove her to Mr. Singh’s home, where Mr. Singh gave her a single key, which he said was the house key. When she returned to 10 Mission Ridge Trail and tried the key, however, she discovered that it would not open the door. When she called Mr. Lall and asked why the key didn’t work, he informed her that he would be home soon and to wait for him there. When he arrived, he was accompanied by uniformed police, whom Mr. Lall informed that he was the sole owner of the house, that he and Ms. Lall were separated, and that there were family law proceedings in court, whereupon the police accompanied Ms. Lall to a Women’s shelter.

[ 43 ] The evidence of Mr. and Ms. Lall is conflicting and has not been tested by cross-examination. At the very least, there is a genuine issue for trial as to whether the property was a matrimonial home

(c) Should the property be sold pending trial?

[ 44 ] While the Court may order the sale of property pursuant to the Partition Act , [2] Mr. Lall has not been pleaded that Act either in his Answer, or in his Notice of Motion. He relies on the fact that he asserts in his affidavit that he is entitled to the sale of the property pursuant to the Partition Act .

[ 45 ] The Family Law Act [3] gives the court a limited jurisdiction to order the sale of a matrimonial home, as where its ownership is in issue, or where its sale is necessary to satisfy an order for equalization. Section 9(1) of the Act states:

9(1) In an application under section 7, the court may order,

(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;

(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;

(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in installments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and

(d) that, if appropriate to satisfy an obligation imposed by the order ,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or

(ii) any property be partitioned or sold .

[ 46 ] Even if Mr. Lall had applied pursuant to the Partition Act , or has raised an issue as to ownership of the home, I find, for the reasons that follow, that this is not a case in which the court should exercise its discretion to order that the home be sold pending trial.

[ 47 ] When a property that is sought to be partitioned and sold is a matrimonial home, one joint owner’s right to have it sold is subject to any competing right of the other owner under the Family Law Act that would be defeated by a sale. The court has regarded the availability of trial within a short period and the need to preserve a residence for a vulnerable spouse or child as compelling circumstances which favour deferring the determination as to sale until trial. [4]

[ 48 ] Ms. Lall is a vulnerable spouse by reason of her recent immigration to Canada and limited work skills. The trial is only two months away. I do not accept Mr. Lall’s evidence that, having bought the property only a year ago, he is now unable to maintain it for the short time remaining before trial.

[ 49 ] An order for interim sale of a matrimonial home pursuant to the Partition Act will normally not be made where it would prejudice the other spouse’s right to assert an ownership or possessory interest in the property at trial. [5] The test proposed by Justice Wright in Walters v. Walters , [6] and adopted by Justice Polowin in Kereluk v. Kereluk [7] is whether there is a genuine issue for trial regarding the competing claims asserted by the other spouse.

[ 50 ] Mr. Lall has not established that there is no genuine issue for trial as to whether his wife is entitled to spousal support from him, either pursuant to the Family Law Act or his Immigration Sponsorship Agreement, and as to whether she will be entitled to remain in possession of the home, at least until she has secured suitable alternative accommodation. Her right to possession of the home should not be foreclosed by an order at this time directing its sale pending trial.

[ 51 ] Mr. Lall seeks an interim order that would undermine Ms. Lall’s right to possession of the home pending the determination of her right to spousal support. Her right to possession is especially important to her now because she is, as yet, unable to provide for herself, and her right to spousal support has yet to be determined. The importance to Mr. Lall of having the home sold pending trial, on the other hand, is diminished by the fact that the trial is scheduled to take place in only two months.

[ 52 ] For the foregoing reasons, Mr. Lall’s motion is dismissed. If the parties are unable to agree on costs, they may make written submissions, not to exceed four pages plus a Costs Outline, by October 31, 2012.

Price J.

DATE: October 11, 2012

COURT FILE NO.: FS-11-3324-00
DATE: 2012-10-11

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: KIRANPREET KAUR LALL Applicant - and - TAJINDER SINGH LALL Respondent REASONS FOR ORDER Price J.

Released: October 11, 2012

[1] Grewal v. Kaur , 2009 ON SC 66913

[2] Partition Act , R.S.O. 1990, c. P. 4

[3] Family Law Act , R.S.O. 1990, c. F.3, s. 9(1)

[4] Goldman v. Kudeyla , 2011 ONSC 2718 , 5 R.F.L. (7 th ) 149, at paras. 17 and 18

[5] Silva v. Silva , 1990 ON CA 6718 , 1990 1 O.R. (3d) 436 (Ont. C.A.); Arlow v. Arlow , (1990), 1991 ON CA 12940 , 33 R.F.L. (3rd) 44 (OCA,); Walters v. Walters , 1992 ON SCDC 8599 , [1992] O.J. No. 1564, 1992 CarswellOnt 811

[6] Walters v. Walters , 1992 ON SCDC 8599 , [1992] O.J. No. 1564 , 1992 CarswellOnt 811 , 92 D.L.R. (4 th ) 398 (Ont. Gen. Div.)

[7] Kereluk v. Kereluk , 2004 ONSC 34595, at para. 21