Court File and Parties

COURT FILE NO.: FS-16-0009-00 DATE: 2016 06 03 ONTARIO SUPERIOR COURT OF JUSTICE (FAMILY COURT APPEAL)

BETWEEN:

MILI ARORA Applicant (Appellant) – and – SAHIL LUTHRA Respondent

Counsel: Sandra Lozano and Lester Cuellar, for the Applicant Robert A. Fernandes, for the Respondent

HEARD: May 30, 2016

Reasons for Judgment

[On appeal from an Endorsement of Justice P. W. Dunn of the Ontario Court of Justice, Family Court, at Brampton, delivered January 18, 2016]

Fragomeni J.

[1] The appellant wife, Mili Arora, appeals the temporary order made by the Honourable Justice Dunn of the Ontario Court of Justice on January 18, 2016 that no final order would be made in accordance with the parties’ consent dated December 9, 2015.

[2] Prior to hearing submissions on the appeal I dealt with a motion brought by the Respondent father, Sahil Luthra, requesting an order admitting as evidence at the appeal hearing the following:

(i) the endorsement of Justice Edwards dated February 5, 2016 (ii) e-mail threads between the Respondent’s counsel and the Applicant’s counsel from September, 2015 to October, 2015 relating to the issue of service of the father’s motion before Justice Dunn on January 18, 2016.

[3] With respect to the endorsement of Justice Edwards, it is my view that leave is not required to admit this information. The endorsement is not evidence. It is properly a matter that I can take into account in determining the issues on appeal, as it provides a context to the chronology of events and directions of the court as the litigation proceeded to the appeal heard by me on May 30, 2016.

[4] With respect to the e-mail threads, I ruled that they were relevant and ought to be reviewed by the court. One of the essential grounds of appeal relates to the issue of service. The wife submits that she was not served with the motion. The husband argues that she was and it was for that reason that the husband’s affidavit, put before Justice Dunn, did not detail the service issue. At no time was he attempting to mislead the court. In order to properly assess the service issue I determined it was necessary and appropriate to read the e-mail chain.

[5] The general test for admission of fresh evidence on appeal is set out in R. v. Palmer. The court held that fresh evidence may be admitted on appeal if the following four factors are satisfied:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases… (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) the evidence must be credible in the sense that it is reasonably capable of belief, and (4) it must be such that if believed it could reasonably, when taken with the other evi­dence adduced at trial, be expected to have affected the result.

[6] I am satisfied that all four factors have been met.

[7] It is important and informative to set out the e-mail chain as it relates to the issue of service. The Affidavit of service of the husband, sworn January 11, 2016, sets out that he served the wife by leaving a copy with Mario, someone who appeared to be in charge of Suite 9, 260 Edgeley Boulevard. The father submits that the e-mail chain shows a pattern of the wife’s lawyer accepting service at Suite 9 so he thought service there was sufficient.

[8] The email chain is set out at Tab E of the husband’s May 13, 2016 Affidavit as follows:

From: sandra@lozanolaw.ca Sent: September-16-15 2:29 PM To: Robert Fernandes Subject: RE: FW: Sahil Luthra and Mili Arora Hello, yes, the receptionist there will accept service on my behalf tomorrow If I am not at my office when service is done. Thanks, Sandra

--------Original Message-------- Subject: FW: Sahli Luthra and Mili Arora From: "Robert Fernandes" raf@kblawyers.ca Date: Wed, September 16, 2015 2:35 pm To: sandra@lozanolaw.ca CC: "'Susan Krkuc'" susankrkuc@kblawyers.ca Dear Ms. Lozano, I thank you for your prompt reply to my earlier e-mail correspondence. I understand that you do not anticipate being in the office tomorrow, but that for this one instance, my client can carry out the personal service of his responding materials at suite 9 (which suite, presumably, is adjacent to your office, being suite 10). Would you please advise whether or not someone will be available to accept service of my client's materials? If so, would you please also confirm that this person also has authority to accept service on your behalf? Your earliest attention to this query is greatly appreciated. Kind regards, Robert A. Fernandes

From: Robert Fernandes [mailto:raf@kblawyers.ca] Sent: September-16-15 1:06 PM To: ‘sandra@lozanolaw.ca’ sandra@lozanolaw.ca Cc: 'Susan Krkuc' susankrkuc@kblawyers.ca Subject: Sahil Luthra and Mili Arora Dear Ms. Lozano, Mr. Luthra attended at your office earlier this morning to carry out the personal service of his responding materials. There was no one at your office. Further to this, I understand (as Mr. Luthra advises me) that there is no mail slot at your office (so that he- or a courier- could deposit these materials with you). Mr. Luthra can carry out the service of his materials upon you tomorrow morning. Please advise whether you will be available at your office tomorrow morning to accept service thereof. Otherwise, please advise if you will consent to having my client's responding materials served upon you via facsimile or via electronic mail. I look forward to hearing from you at your very earliest, and remain Yours truly, Robert A. Fernandes, B.A. (Hons.), LL.B.

From: sandra@lozanolaw.ca Sent: October-06-15 1:38 PM To: raf@kblawyers.ca Subject: Re: FW: Documents Hello, you can serve at unit 9. Thanks, Sandra Lozano

-------Original Message------- Subject: FW: Documents From: "Robert Fernandes" raf@kblawyers.ca Date: Oct 5, 2015 7:42PM To: sandra@lozanolaw.ca CC: Dear Ms. Lozano, Please advise if you are available this coming Friday morning (around 11:00 a.m.) to accept service of my client's Responding Affidavit. We can, to accommodate you, carry out service on the receptionist in the adjacent unit. I look forward to hearing from you as soon as possible. Robert A. Fernandes

From: Robert Fernandes [mailto:raf@kblawyers.ca) Sent: October-03-15 4:37PM To: 'sandra@lozanolaw.ca' sandra@lozanolaw.ca Subject: RE: Documents Dear Ms. Lozano, OK. My client's motion materials were served upon you well in advance of yesterday's deadline. All of my client's materials were faxed to your office on September 22, 2015. Courtesy copies of these materials are attached hereto for your ease of reference. We now have until this Friday to serve and file responding Affidavits on behalf of our respective clients, which I intend on doing. Kindly re-review Parent J.'s Order of August 27, 2015 should you require any further clarification with respect to the foregoing (also attached hereto for your ease of reference). Please advise if you will be in your office this coming Friday to accept service of my client's responding Affidavit. Thank you. Robert A. Fernandes

-----Original Message----- From:sandra@lozanolaw.ca [mailto:sandra@lozanolaw.ca] Sent: October-02-15 6:37PM To: raf@kblawyers.ca Subject: Documents Dear Mr. Fernandes, please advise on your client's motion documentation. I cannot accept service that doesn't comply with the Rules. The deadline for your client's motion documents to be served and filed was today as you know. I waited in my office until end of business day and didn't receive a hard copy nor a request to allow irregular service or extend the date of service. If you filed any documents please send me a copy of the Affidavit of service. Thanks, Sandra

From: sandra@lozanolaw.ca Sent: October-23-15 4:57PM To: raf@kblawyers.ca Subject: Re: Sahil Luthra and Mili Arora Hello, you may serve at unit 9. Thanks

--------Original Message----- Subject: Sahil Luthra and Mili Arora From: "Robert Fernandes" raf@kblawyers.ca Date: Oct 23, 2015 2:38 PM To: sandra@lozanolaw.ca CC: Dear Ms. Lozano, My client's Factum and Book of Authorities is now complete. It will be couriered to you on Monday. Will you be available to accept service? Please advise. Thank you. Yours truly, Robert A. Fernandes, B.A. (Hons.), LL.B.

[9] In these circumstances it is reasonable to find that the husband thought he could serve this material at Suite 9 and that the wife’s lawyer would receive it. It would have been preferable, however, for the husband to have again requested that service take place at Suite 9, as he had done so in the past. I cannot find and conclude, in light of the pattern of service that the wife’s lawyer consented to, that the husband deliberately misled Justice Dunn in his Affidavit for the motion of January 18, 2016 by not setting out the prior details of service at Suite 9.

Submissions on the Appeal

[10] The wife sets out the following grounds of appeal:

1. that the learned motions judge erred in finding that the wife had been properly served
2. that the learned motions judge erred in law by determining that no order would be granted for a final order in accordance with the consent dated December 9, 2016
3. that the learned motions judge erred in law in making a substantive order by means of a 14B motion
4. that the learned motions judge erred in law by making an order without having received the wife’s response to the motion.

[11] The husband submits the following:

1. the proper approach in this matter was for the wife to proceed pursuant to either Rule 25(19) or Rule 6(20) of the Family Law Rules. Those sections set out the following:

   25 (19) The court may, on motion, change an order that, (a) was obtained by fraud; (b) contains a mistake; (c) needs to be changed to deal with a matter that was before the court but that it did not decide; (d) was made without notice; or (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.

   6 (20) The court may, on motion, lengthen a time, set aside the consequences of failing to take a step by a specified time, order an adjournment, or make any other order that is just, if, despite service of a document having been effected on a person in accordance with this rule, the person shows that the document, (a) did not come to his or her notice; or (b) came to his or her notice only after the effective date of service. O. Reg. 140/15, s. 1 (8).

2. Justice Dunn did not make an order, he simply provided directions on a go forward basis in light of the allegations raised by the husband regarding the events that transpired after the December consent had been signed.

3. Justice Dunn was well within his jurisdiction under the parens patriae principles and considering the best interests of the child. Justice Dunn did not make a final order on the basis that he required responding material from the wife.

4. the evidentiary record before me is insufficient to make the final order in accordance with the December consent. Further, the parties, having chosen the Ontario Court of Justice as the forum to decide these issues, should have their matter continue in the Ontario Court of Justice.

Justice Dunn’s Endorsement of January 18, 2016 (in chambers)

[12] In his endorsement, Justice Dunn sets out the following:

Before the court are:

1. Motion d 6 January 16 by A in Vol 5 Tab 4 requesting Final orders pursuant to a consent d 9 December 15 in Vol 5 Tab 5.
2. Motion d.7 January 16 by R in Vol 6 Tab 1 requesting that no final order be granted pursuant to the consent d 9 December 15 (in Vol 5 Tab 5) and that that consent be set aside on the basis that the consent was obtained under duress or fraudulent misrepresentation. (etc)

In support of the R’s requests in this motion, he filed an aff s. 7 January 16 in Vol 6 Tab 2.

The A was within her rights to request final orders based on a consent between the parties, and it would have been appropriate that the request for final orders be in a 14B motion.

In view of the objections raised in the R’s affi, no order will be given at this time for any final orders in accordance with the consent d 9 December 15.

No order will be given to proceed with the R’s motion because it requests substantial relief, which is not appropriate for a 14B motion.

I observe that although the R’s motion was only recently served on the A’s lawyer on 11 January 16, the A has not yet filed responding material to the R’s motion.

What is needed now is for the lawyers to appear before a new case management justice to discuss how to proceed in this case.

Without pre-judging how the case should proceed further, I can observe that it would appear to be expensive and unnecessarily time-consuming to have a trial over whether there was duress or fraud involved in the execution of the consent.

It would seem much more expeditious to formulate a plan moving forward that would encapsulate the parties’ overall wishes.

In the result, I request that this case be sent to the trial coordinator with the request that a new judicial case manager be appointed for the already established return date of 11 February 16 ct 208 10:00 am

The A must serve and file responding material to the R’s motion before the case conference should proceed. Also, each party must serve and file a case conference brief for the hearing.

Admin to send endorsement to trial coordinator’s office and to Mr. Fernandes and Ms. Lozano.

Note to trial coordinator: if 2 hours is not available on 11 February 16, perhaps another date could be found.

Dunn J.

Justice Edwards Endorsement of February 5, 2016

[13] In his endorsement of February 5, 2016, Justice Edwards sets out the following:

The father brings a motion to resurrect his appeal of a temporary order of the Ontario Court. After the temporary order the parties reconciled and the father abandoned his appeal. The parties also entered into a consent order in the Ontario Court. The parties then separated. The father alleges that fraudulent representations were made to him to induce him to enter into the consent order. The mother brought a motion in the Ontario Court to take out a final order pursuant to that consent. Dunn J. refused to grant the order and the mother is appealing that order. A case conference is scheduled in the Ontario Court for next week. Both parties agree that an adjournment of this motion is proper but disagree on terms. The mother wants it adjourned until her appeal is resolved and the father objects. He seeks a trial of the issue on whether the consent should be set aside. I agree, but believe that it should be heard in the Ontario Court. I adjourn the father’s motion sine die. The status of the consent order must be determined first as it may render the appeal of the temporary order moot. I urge the parties to seek the most expedited manner to resolve that issue in the Ontario Court.

Affidavit of Husband before Justice Dunn, sworn January 7, 2016

[14] In his Affidavit sworn January 7, 2016, the father sets out the following allegations at paras. 21 to 25:

21. After I signed the Consent, things almost immediately changed for the worse. Mili began treating me like a second-class citizen. She advised me that she could now do whatever she wanted with Dev, and that I was powerless to do anything to stop her. However, with this security in place, I presume that Mili was still willing to give our relationship a shot (I mean, after all, what would she have to lose by doing so?).
22. On December 17, 2015, Ms. Lozano forwarded to Mr. Fernandes a proposed final order – in accordance with the terms of the Consent – for his approval as to form and content. Given the way that Mili had started treating me, I was reluctant to confirm to Mr. Fernandes to approve the proposed final order. In this regard, attached to this my Affidavit as Exhibit “L” is a true copy of an e-mail message from Mr. Fernandes to Ms. Lozano, dated December 16, 2015.
23. Once again, I was coaxed by Mili into believing that everything would work out just fine between us, once we were able to dispose of the current court proceeding, fully and finally. She was still willing to marry me later that month, and we entered into a one-year lease agreement with respect to a rental apartment, in Brampton. A true copy of this lease agreement, dated December 25, 2015, is attached to this my Affidavit as Exhibit “M”. Mili and I started living together, with Dev, on January 1, 2016. That same date, Mili and I signed the marriage certificate at our local temple, in North York, Ontario. Mili has the certificate in her possession and I cannot produce a copy thereof at this time. I do, however, have a true copy of the marriage licence application in my possession – which Mili and I both signed together – and same is attached to this my Affidavit as Exhibit “N”.
24. I was scheduled to meet with Mr. Fernandes during the evening of December 23, 2015, to discuss what the next steps should be. Prior to this meeting, Mili advised me that she would agree not to register Dev in daycare – which had always been a sticking point with me, given that both sets of grandparents are ready, willing and able to care for Dev when we were both at work – and, on the strength of this further concession, I instructed Mr. Fernandes to approve the form and content of the proposed final order, which he did, and true copies of correspondence (both letter and e-mail correspondence) passing between him and Ms. Lozano that same date is attached to this my Affidavit and collectively marked as Exhibit “O”.
25. From January 1 to 5, 2017, things between us deteriorated even further. Mili’s verbal and emotional abuse of me intensified to the point that we could no longer live under the same roof, and I took temporary refuge with my parents, which is where I reside today.

[15] At paragraph 26 he sets out why the consent should be set aside:

It is my respectful position that the Consent should be set aside for the following reasons:

(a) It was obtained under duress: Mili would not agree to reconcile with me unless I signed the same; (b) It was obtained through fraudulent representations made to me by Mili throughout the course of our private discussions: it is painfully obvious that Mili had no real intention of reconciling with me whatsoever, and I do verily believe that she took advantage of me (while I was blinded by emotion and in a very vulnerable state) to coax me into agreeing into a very draconian agreement, in her favour; and/or (c) On its face, the terms of this Consent are (I do verily believe) wholly unconscionable. Amongst other things:

i. I do not earn – nor have I ever earned - $60,000.00 a year. In point of fact, my average Line 150 Income from 2012 to 2014 was only $52,754.67. My 2014 Notice of Assessment, along with a CRA computer print-out evidencing my income and deductions for the 2012 and 2013 taxation years, are attached to this my Affidavit and collectively marked as Exhibit “P”. My child support obligations have been calculated with reference to a patently incorrect annual income; ii. Mili is – and has always been – the higher income-earner between us. Yet, the Consent calls for an equal sharing of undefined daycare expenses, who do not even take into account what the actual net cost of this expense actually is (there is a child care credit which Mili can avail herself of, which would reduce the overall cost of the expense); and iii. Above and beyond this, I have been deprived of very basic rights and entitlements – as far as parenting goes – so as to ensure that I can continue to maintain a meaningful presence on Dev’s life, such as, e.g., being consulted on all major decisions affecting Dev’s educational development, religious upbringing and general health and welfare, having access to third-party records, etc.

[16] I agree with the wife’s position that the husband should not have proceeded with this type of motion as a 14B motion. Rule 14(10) of the Family Law Rules sets out the following:

14 (10) If a motion is limited to procedural, uncomplicated or unopposed matters, the party making the motion may use a motion form (Form 14B) instead of a notice of motion and affidavit. O. Reg. 114/99, r. 14 (10).

[17] This motion brought by the husband does not fall within the parameters of that rule. Justice Dunn clearly acknowledges that in his Endorsement of January 18, 2016. Justice Dunn was correct in his decision not to sign the final order in accordance with the December consent. Faced with the serious allegations made by the husband he could not do so. Further, he indicated that it was necessary for the wife to file responding material. Again, Justice Dunn was correct in making that assessment.

[18] Similarly, I am not prepared to sign a final order in accordance with the December consent. The evidentiary record is not complete. The wife must file responding material.

[19] I am also satisfied that the continuation of this matter ought to take place in the Ontario Court of Justice. Justice Edwards on February 5, 2016 stated: “He seeks a trial of the issue on whether the consent should be set aside. I agree, but believe that it should be heard in the Ontario Court.” I agree with Justice Edwards that the issue of whether the consent is valid should be heard in the Ontario Court.

[20] I am satisfied that the directions of Justice Dunn as set out in his January 18, 2016 endorsement are reasonable and appropriate.

[21] In all of these circumstances the appeal is dismissed.

[22] The parties shall file written submissions on the costs of the appeal. The parties shall also file submissions with respect to the attendance before Justice Braid, dated March 31 2016, as those costs were reserved to the justice hearing the appeal. The submissions shall be filed within 20 days.

Fragomeni J.

Released: June 3, 2016