SUPERIOR COURT OF JUSTICE – ONTARIO
CITATION: Singh. v. Kaur, 2015 ONSC 1279
COURT FILE NO.: FS-14-79639-00
DATE: 2015-03-02
RE: Amrinder Singh. v. Arshdeep Kaur
BEFORE: Barnes, J.
COUNSEL: Ravinder Mann, for the Applicant
Amanpreet Singh Nagpal, for the Respondent
HEARD: October 9, 2014
A M E N D E D E N D O R S E M E N T
[1] Upon reading the affidavits filed and considering the submissions of counsel this court orders:
(a) the Respondent’s motion seeking the stay or dismissal of the application to sever spousal support and property claims from Divorce proceedings is dismissed;
(b) the Divorce Proceedings are severed from the corollary relief claims. Either party is permitted to seek a Divorce on an uncontested basis; and
(c) the Parties may seek to come to some agreement on costs. Should the parties fail to agree on costs. Each party shall submit to the court a bill of cost outline, no longer than two pages within 20 days from the date of this order.
[2] The Applicant (Husband) seeks an order splitting the Divorce from the corollary relief of spousal support and property pursuant to Rule 12 (6) of the Family Law Rules.
[3] The Respondent (Wife) by cross motion seeks the dismissal or stay of the Husband’s motion on the basis that this court has no jurisdiction over the matter and even if the court had jurisdiction over the matter, the severance of the Divorce from the other issues will severely prejudice her support and property claims in India. The parties were married in India.
[4] I have concluded that the Respondent has attoned to the Jurisdiction of this Court; there is no reliable evidence that proceedings for support and property have been commenced in India and there is no reliable evidence that should such proceedings be commenced in India the Respondent’s interests will be prejudiced.
BACKGROUND FACTS
[5] The relevant facts are that the parties were married in India on April 14, 2010. They were separated on August 8, 2012. At the time of the motion they had been living separate and apart for 2 years, 1 month and 25 days. The Applicant states that there is no possibility of Reconciliation.
[6] On January 13, 2014, the Applicant filed an Application for Divorce. On February 13, 2014, the Respondent filed an Answer seeking spousal support and equalization of family property.
[7] On August 18, 2014, the Applicant filed a motion seeking that the Divorce be severed from the corollary relief claims for spousal support and property. On August 22, 2014, the Respondent filed a motion seeking dismissal of the Applicants motion on the basis of the lack of jurisdiction and an assertion that the Respondent’s property and spousal support claims in India will be prejudiced if the Divorce was separated from the other corollary relief.
ISSUES
[8] The issues in this motion and cross motion are:
(a) Does this court have jurisdiction?
(b) If this court has jurisdiction has the Respondent established that a severance will prejudice her spousal support and property claims in India?
DISCUSSION
(a) Does the Court have Jurisdiction?
[9] The parties were married in India. Any property that may be the subject matter of a dispute between the parties is located in India.
[10] The Respondent submits that due to the fact the parties were married in India, and the subject properties are in India, the Courts of India have jurisdiction over this matter and Canadian Courts have no jurisdiction, therefore, the Applicant’s motion should be dismissed. In the alternative, the Applicant’s motion should be stayed pending the resolution of spousal support and property issues in India.
[11] I have concluded that this Court has jurisdiction. The Respondent has attorned to the Jurisdiction of this Court.
[12] The Respondent filed an Answer to the Applicant’s application for Divorce. In the Answer the Respondent claimed spousal support and equalization of property. By this action the Respondent has attorned to the jurisdiction of this Court and this Court has jurisdiction over this matter: See also Kavanagh v. Magna Exteriors and Interiors Corp. (c.o.b. Services Decoplas), 2014 ONSC 4540 at para 23.
(b) Will the Respondent be disadvantaged by the order?
[13] I have concluded that there is no reliable evidence before this court that the Respondent will be disadvantaged by an order severing the Divorce from the other corollary relief.
[14] Rule 12 (6) of the Family Law Rules states:
(b) The court may, on motion, make an order splitting a divorce from other issues in a case if, neither spouse will be disadvantaged by the order; and reasonable arrangements have been for the support of any children of the marriage, O. Reg. 114/00, r. 12 ( 6).
[15] The Respondent submits that she would be disadvantaged by an Order severing the Divorce from other issues in the case because her claim for spousal support and property in India will be jeopardized if the Applicant’s motion was granted.
[16] In an Affidavit dated August 21, 2014, the Respondent asserts that she has started a Criminal Complaint for the return of her Dowry monies including Dowry items, jewellery and monies spent on the marriage and to enforce her equalization rights in India.
[17] The Respondent explained that these items are still in possession of Applicant and his family in India. A Divorce she argues, will result in the depletion of this property and prejudice her interests.
[18] The Applicant provided documentation that after an investigation the police in India concluded that the Respondent’s allegations were without merit. The Respondent said the Applicant filed another complaint against him in India on July 8, 2013. This complaint was rejected and the Indian authorities concluded that there was no basis to initiate any legal action.
[19] The Applicant has also provided legal opinion from a lawyer in India indicating that a Divorce granted in Canada will have no impact on the Respondent’s property rights in India. The Respondent has also provided a legal opinion from a lawyer in India stating the Courts in India have jurisdiction over this matter and the Courts in Canada have no jurisdiction in the matter.
[20] In the face of these seemingly conflicting opinions and the information from the Applicant that the Respondent’s Criminal Complaint had been dismissed with a conclusion that there was no need to initiate any legal action, I gave the Respondent an opportunity to provide documentation in support of her position that legal proceedings in respect of the property issues had been commenced in India.
[21] The Respondent had 20 days, commencing on August 26, 2014, to provide the information. This matter was heard by the Court on October 9, 2014. On that date the Respondent provided a legal opinion which confirmed that the Court of India had jurisdiction over this matter. No information was provided to the Court on the status of any legal proceedings in India to address the issue of property.
[22] On October 9, 2014, I reserved my decision in this matter. While this decision was on reserve, Counsel for the Respondent, in a letter dated October 28, 2014, provided a copy of a letter which was said to be from the Deputy Commissioner of Police (Public Information Officer) indicating that there was a Criminal Complaint against the Applicant and an investigation pending. On the basis of this information counsel for the Respondent requested another hearing to present this new evidence.
[23] This court must control its own process and cannot allow itself to be hijacked by dueling documents all claiming to be authentic. The Applicant has produced documents from the office of the Deputy Commissioner indicating that the Complaint has been investigated and found to be without merit.
[24] The Respondent was given an opportunity to provide sworn documentation to rebut this, she did not do so. There was no reason proffered at the October 9, 2014, hearing as to why this new document was not available, instead the document put forth at the hearing was unresponsive to my August 26, 2014, Order. Under these circumstances the court will not reopen the motion to receive yet another document from the Deputy Commissioner Office indicating the contrary.
[25] I conclude that there is no reliable evidence before this court that the Respondent has commenced Legal proceedings aimed at resolving property issues in India; or any reliable evidence that a divorce granted will prejudice the Respondent’s interests and, therefore, I have made the order described above.
Barnes, J.
DATE: March 2, 2015
CITATION: Singh. v. Kaur, 2015 ONSC 1279
COURT FILE NO.: FS-14-79639-00
DATE: 2015-03-02
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Amrinder Singh. v. Arshdeep Kaur
BEFORE: Barnes, J.
COUNSEL: Ravinder Mann, for the Applicant
Amanpreet Singh Nagpal, for the Respondent
AMENDED ENDORSEMENT
Barnes, J.
DATE: March 2, 2015