Gill v. Matharu, 2015 ONSC 7543

Superior Court of Justice – Ontario

Citation: Gill v. Matharu, 2015 ONSC 7543 Court File No.: FS-15-166-00 Date: 2015-12-02

Between: Amandeep Kaur Gill (Applicant)

• and - Hardeep Singh Matharu (Respondent)

Counsel: D. Singh, Counsel for the Applicant B. Nagra, Counsel for the Respondent

Heard: November 19, 2015, at Brampton

Reasons for Judgment

LEMAY J

1This is a motion by the Respondent to have the Applicant’s Application dismissed on the basis that there is a similar matter proceeding in British Columbia that is closer to trial at this stage.

2For the reasons that follow, the motion is granted in part. The relief sought for the equalization of property under the Family Law Act and the claims for spousal support are dismissed. The proceedings relating to the child of the marriage under the Children’s Law Reform Act are stayed, pending the outcome of the British Columbia proceeding.

The Facts

a) The Parties’ Relationship

3The Applicant, Amandeep Kaur Gill (hereinafter “the Applicant” or “Ms. Gill”) and the Respondent, Hardeep Singh Matharu (hereinafter “the Respondent or “Mr. Matharu”) were married on November 9th, 2011. Prior to the marriage, Ms. Gill lived in Ontario, while Mr. Matharu lived in India.

4After the marriage, Ms. Gill sponsored Mr. Matharu to come to Canada. They decided to live in Vancouver, British Columbia, as Mr. Matharu had a brother there. Mr. Matharu arrived in Vancouver on September 30th, 2012. The one child of the marriage, Ravneet Kaur Matharu (“Ravneet”) was born on October 16th, 2012.

5After the parties began living in Vancouver, they were back and forth between BC and India. The last trip to India prior to separation was between January and May of 2014, when they both were in India.

6The parties returned to Vancouver in May of 2014. On September 11th, 2014, Mr. Matharu left the home and the parties separated. Immediately thereafter, Ms. Gill went to Ontario with Ravneet. She made the decision to leave for Ontario as this was where her family was living and she had support there. Ms. Gill had not worked during the time that the parties lived in Vancouver.

b) The British Columbia Application

7Mr. Matharu started an application in British Columbia on September 19th, 2014. This application was served on Ms. Gill, but not until after she had returned to Ontario with Ravneet.

8Ms. Gill responded to this application by filing a counterclaim in the British Columbia proceeding. That counterclaim states that Ravneet is habitually resident in British Columbia, and seeks child support and an order respecting parenting. The specific order that is sought would give Ms. Gill sole custody and guardianship, and would provide “reasonable” access and parenting time to Mr. Matharu.

9I was not given the entirety of the file from the BC action. However, in his Amended Notice of Family Claim, Mr. Matharu proposes that Ravneet continue to live with Ms. Gill, and that he would have reasonable access to Ravneet.

10Reasonable access is not defined by either party in their pleadings, and is not defined anywhere else in the materials before me. It is a question that the parties may have a disagreement over. Based on the filings, however, it does not appear that there is any disagreement over custody. It is clear that Ms. Gill is to have custody of Ravneet.

11In terms of child support and spousal support, there is an issue with respect to Mr. Matharu’s income. Mr. Matharu is also alleging that Ms. Gill is working, and he is seeking information on her income. Child support is currently being paid in the amount of $673.00 per month, but there may be some issue as to arrears.

12There is also a proceeding between these parties in India. I do not have any significant details about that process. No remedies were requested with respect to this proceeding. As a result, I will not consider it further.

13Flowing from the British Columbia litigation, there was a consent Order on January 26th, 2015 for Skype access between Mr. Matharu and Ravneet. This is to take place every Sunday

14The trial of the British Columbia action is set to take place over three days in January of 2016.

15Ms. Gill made no objection to the forum of the British Columbia proceeding until she filed this proceeding in July of 2015. I was advised that there is now a motion scheduled for December 7th, 2015 before the British Columbia courts for this matter to be transferred to the Ontario courts.

16During argument, I inquired as to whether the parties wished to hold this motion in abeyance pending the outcome of the motion in British Columbia. Both counsel advised me that they were seeking a decision from me at this point. I have made that decision in advance of the December 7th, 2015 hearing date so that all parties, and the court in British Columbia, will have my decision and the reasons for it in advance of the motion on December 7th, 2015.

c) This Proceeding and the Positions of the Parties

17This application was brought by Ms. Gill on July 20th, 2015. It seeks Orders under the Family Law Act and the Children’s Law Reform Act. These Orders relate to spousal support, child support, custody and access.

18I would note that Ms. Gill is also seeking an order that she be allowed to travel to India with Ravneet in December 2015 and January 2016. It is clear from this request that she is seeking to travel to India for a wedding, and would like to be absent from Canada at the time that the trial takes place.

19In this motion, Mr. Matharu is seeking to have Ms. Gill’s action dismissed on the basis that Ms. Gill has attorned to the jurisdiction of the British Columbia courts, that the BC proceeding is nearly at trial and that Ravneet was not ordinarily resident in Ontario. The result is that Ms. Gill is not coming to the Court with clean hands.

20Ms. Gill is opposing this motion, and argues that the court in Ontario has jurisdiction, particularly over the child custody and support issues. In support of this position, she argues that Ravneet has been ordinarily resident in Ontario since September of 2014, as she has been here with Mr. Matharu’s acquiescence (or consent).

Law and Analysis

21Ms. Gill is not proceeding under the Divorce Act. As a result, under sections 3(2) and 4(2) of the Divorce Act, it is clear that the British Columbia courts have jurisdiction over the divorce that the parties are seeking and the corollary relief unless the British Columbia Supreme Court exercises its jurisdiction to transfer the divorce to Ontario under section 6 of the Divorce Act.

22As a result, unless Ms. Gill’s December 7th, 2015 motion is granted by the British Columbia Supreme Court, there will be a trial in British Columbia over whether a divorce should be granted and whether there is corollary relief that either party should be given. If it takes place, this trial will squarely address the issues of custody, access, spousal support, child support and equalization of property.

23The question, then, is whether the Ontario Courts should take jurisdiction over this same set of facts because Ravneet and Ms. Gill have been resident in Ontario since September of 2014.

24Absent an Order from the British Columbia Supreme Court, the Ontario Courts do not have jurisdiction over this matter under the Divorce Act. Any jurisdiction that I have would come under the provincial legislation. When the legislation is reviewed, it appears that the issues divide themselves into three parts. First, there are the property claims that Ms. Gill has made. Second, there are claims relating to custody that have been made. Finally, there are claims relating to child and spousal support.

a) The Property Issues

25Section 15 of the Family Law Act is clear that property rights are governed by the internal law of the place where both spouses had their last common habitual residence. On the evidence before me, this was Vancouver. As a result, this section acts to preclude any property claims in Ontario and those claims are dismissed without prejudice to the Applicant to renew these claims if they are not addressed in the British Columbia proceeding.

b) The Access and Custody Issues

26The relevant provisions of the Children’s Law Reform Act are found in section 22, which states:

JURISDICTION – (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

(2) HABITUAL RESIDENCE – A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time.

whichever last occurred.

(3) ABDUCTION – The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

27First, there is the question of this Court’s jurisdiction to make a custody order. In order to be covered by section 22, Ravneet must either be habitually present in Ontario as of July 20th, 2015, or covered by section 22(1)(b). Starting with the question of habitually resident, as of July 20th, 2015, Ravneet had lived in Ontario for approximately ten (10) months. She was brought here by Ms. Gill in September of 2014.

28Since that time, Mr. Matharu has not taken any steps to have Ravneet returned to British Columbia. Nor has he even sought an Order for custody. This application was brought almost a year after Ravneet was moved to Ontario. Further, even after this application was brought in Ontario, alleging that Ravneet was resident in Ontario, Mr. Matharu did not make any efforts to have Ravneet returned to British Columbia. As a result, even if he has not consented to Ravneet becoming resident in Ontario, he has acquiesced to it.

29The facts of this case are distinguishable from the decision in Snetzko v. Snetzko ((1996) 1996 CanLII 11326 (ON SC), O.J. No 2530). In the Snetzko decision, the Court was faced with a situation where the mother had left Yonkers, New York to visit her family in Guelph for a period of four months, with the father’s written consent. Once the period specified in the consent ran out, the father moved promptly to have the children returned to New York.

30In this case, Mr. Matharu has not taken any steps to return Ravneet to British Columbia, even though he has commenced litigation. As a result, Ravneet is ordinarily resident in Ontario, and I have jurisdiction to make Orders that are in her best interests under the Children’s Law Reform Act.

31However, the next question is whether I should exercise that jurisdiction. In the unique circumstances of this case, I decline to do so. The doctrine of forum non conveniens applies to this case.

32Ms. Gill is seeking to complicate this matter by commencing proceedings in a second province for essentially the same relief that is being addressed in the proceeding in the British Columbia Supreme Court. As a result, although it appears that I may have jurisdiction to consider this case under section 22 of the Children’s Law Reform Act, I am of the view that a stay should be granted under the doctrine of forum non conveniens.

33In order to find that the doctrine of forum non conveniens applies to this case, Mr. Matharu must demonstrate that there are good reasons why the Court should decline to exercise its jurisdiction and displace the forum (Ontario) chosen by Ms. Gill. This issue is fully canvassed in Gyuzeleva v. Angelou (2012 ONSC 6628).

34In my view, Mr. Matharu has met this obligation for the following reasons:

a) The British Columbia Supreme Court has jurisdiction over both the divorce that the parties are seeking, and all of the corollary relief. In the circumstances, there will likely be a trial in British Columbia regardless of whether the Ontario Courts assume jurisdiction over issues relating to Ravneet. Duplication of proceedings is to be avoided if possible.

b) The proceeding in the British Columbia Supreme Court is at an advanced stage. One of the goals of litigation in the family law area is the speedy resolution of disputes. Removing this case from BC and bringing it to Ontario would likely result in a further delay in having the issues resolved.

c) Most of the issues between the parties involve finances. The information underlying these issues will not be something to which the courts in Ontario have special or enhanced access to.

d) Other than travel to British Columbia to litigate this matter, Ms. Gill has not pointed to any prejudice she will suffer if these issues are litigated in British Columbia. While the travel would be an issue, Mr. Matharu would suffer the same prejudice if the Ontario Courts assumed jurisdiction over this matter.

e) Ms. Gill has attorned to the jurisdiction of the British Columbia Courts by participating in case conferences, acceding to consent orders and other such conduct. She should not be allowed to change venues merely because a trial date is approaching.

35To put this another way, assuming jurisdiction over this case could very well result in a multiplicity of proceedings for what should be a relatively straightforward family law dispute. Courts should be cognizant of the costs of litigation to parties. This is an important consideration in a case such as this where the party seeking to litigate the issue in multiple fora (Ms. Gill) has not shown that she would be prejudiced by being confined to litigating this case in the jurisdiction where the first proceeding was started.

36It is also important to note that a multiplicity of proceedings could lead to different results, which could bring the administration of justice into disrepute.

37I would note that my conclusion on this issue would likely have been different if custody had been a significant issue between the parties. Ravneet has lived in Ontario for more than a year at this point and her medical providers are in Ontario. Further, all of the people who care for her and interact with her on a regular basis are in Ontario. As a result, if custody were a significant issue, Ontario would be the more convenient forum to determine which parent should have custody. However, on my review of the pleadings, Mr. Matharu has conceded that Ms. Gill should have custody of Ravneet.

38In this case, the only question is what level of access to Mr. Matharu is in Ravneets best interests. This is a question that will necessarily be focused on Mr. Matharu, his support network, his home environment and other factors relating to his suitability as a parent. Given that he lives in British Columbia, and given that his support network is there, the Supreme Court of British Columbia is better positioned to assess this question.

c) The Support Remedies

39Having determined that custody is not a matter that I should assume jurisdiction over, I should briefly address the question of the relief that Ms. Gill seeks for child and spousal support. Section 36 of the Family Law Act states:

EFFECT OF DIVORCE PROCEEDING – (1) When a divorce proceeding is commenced under the Divorce Act (Canada), an application for support under this Part that has not been adjudicated is stayed, unless the court orders otherwise.

(2) ARREARS MAY BE INCLUDED IN ORDER UNDER – The court that deals with a divorce proceeding under the Divorce Act (Canada) may determine the amount of arrears owing under an order for support made under this Part and make an order respecting that amount at the same time as it makes an order under the Divorce Act (Canada).

(3) IDEM – If a marriage is terminated by divorce or judgment of nullity and the question of support is not adjudicated in the divorce or nullity proceedings, an order for support made under this Part continues in force according to its terms.

40In other words, Ms. Gill’s request for child and spousal support under the Family Law Act are stayed unless I order otherwise.

41My reasons for declining to deal with the custody and access issues apply equally to the support issues. Indeed, the arguments for this Court declining to deal with the support issues in this case are even stronger. Much of the inquiry over the amount of support to be paid is going to be focused on Mr. Matharu’s income, and the evidence relating to this issue (including potentially viva voce evidence from his employer) is all in British Columbia. As a result, these portions of Ms. Gills claim are stayed as well.

Disposition

42In the circumstances, I am dismissing without prejudice the property claims made by Ms. Gill. The relief sought with respect to Ravneet, and the child and spousal support relief is stayed pending the outcome of the proceedings in British Columbia.

43If the British Columbia proceedings do not address issues that could properly be raised under the Children’s Law Reform Act, then this proceeding may be recommenced at the request of either party. I retain jurisdiction to determine whether the stay I have granted should be lifted and, if so, under what terms. Any party seeking to lift the stay may make an appointment through the trial coordinator, on notice to the other side.

44The parties may file written submissions on costs once the December 7th, 2015 motion in British Columbia is determined. Each party is to file its costs submissions fourteen (14) days after that decision is released by the Court, and those submissions are to be no more than three (3) double spaced pages, exclusive of bills of costs, offers to settle and case law. Each party is to file a copy of the British Columbia decision, and each party is to address the question of whether, and to what extent, I should consider the outcome of the British Columbia decision in my costs assessment.

45There are to be no reply submissions without leave of the Court.