Sodhi v Bedi, 2016 ONSC 3941

Court File and Parties

COURT FILE NO.: FS-15-403951 DATE: June 14, 2016 SUPERIOR COURT OF JUSTICE – ONTARIO

APPLICANT: Sanjit Singh Sodhi RESPONDENT: Jasmeet Kaur Bedi

BEFORE: Mr. Justice Perkins

LAWYERS: Jennifer Wilson, for the applicant husband Respondent wife in person, by telephone

HEARD: June 14, 2016

Endorsement

[1]

Overview

Each of the parties has started a divorce application. The husband’s is in this court. The wife’s is in the Family Court of Stoke on Trent, England. The wife has moved to stay the husband’s divorce application and to allow hers to proceed. The husband asks that the wife’s motion be dismissed, that his application should proceed, and that the divorce should be granted, unopposed.

[2]

Background

The husband is a resident of Ontario since 2002. He is a lawyer. The wife was a resident of England from birth until about January, 2014. She is a physician. The husband went to England to meet her and proposed marriage there. She then moved to Ontario in January, 2014 to live with the husband. The parties married in Ontario on March 8, 2014. They had a matrimonial home here. They do not have any children. In October, 2014, the wife went to England for a visit with her mother. The husband came to England shortly after the wife. On October 12, 2014, he announced to the wife that the marriage was over and returned to Ontario, leaving the wife in England, where she has remained.

3After the separation, there were discussions and negotiations between the parties, during which the husband paid for the wife to have an Ontario lawyer advise her. He also paid some fees required for the wife to refresh her certifications as a physician in England. The negotiations did not produce an agreement.

4The wife went to the Family Court in Stoke on Trent and filed documents to start a divorce application on July 1 or 2, 2015. However, the material she filed was somehow defective (she acknowledged this without specifying how or why in her evidence), and the court did not issue the petition until September 23, 2015.

5In the meantime, the husband issued his divorce application in this court on July 14, 2015, claiming only a divorce (and costs). There were difficulties in serving the Ontario divorce application. The husband says the wife was avoiding service. The wife says the papers were sent to an incorrect address. In any event, it is clear that the Ontario divorce came to the attention of the wife about September 11, 2015, if not earlier. She completed her filing with the court in Stoke on Trent on September 16, 2015 and that court issued her divorce petition on September 23, 2015.

6The wife has not filed an answer to the application in this court. She says she will “of course” be making economic claims for spousal support, or a share of matrimonial property, or both. The husband has filed a motion to stay the case in the English court.

[7]

Jurisdiction and Forum Non Conveniens

It is clear that this court has jurisdiction to entertain this divorce application, and any claims the wife might make arising from the marriage. See s. 3(1) of the Divorce Act. The question is whether this court should decline jurisdiction on the ground that England is a more appropriate forum for the issues. The tests to apply in determining this question are discussed at length in Jenkins v Jenkins, [2000] OJ no 1631 (SCJ Fam Ct), and Knowles v Lindstrom, 2014 ONCA 116. The onus is on the wife, who is asking the court to decline jurisdiction, to show that England is the more appropriate forum.

[8]

Analysis

The wife claims that her case was begun first. While she has shown that she filed court papers first, she has admitted that they were deficient in some fashion. The deficiency was apparently serious enough to prevent the English Family Court from issuing process until the defects were corrected some two and a half months later. In the meantime, the husband had issued and attempted to serve his application, and the Ontario case actually came to the attention of the wife in September before she refiled her corrected petition in Stoke on Trent.

9The parties were married here and had their only common residence here. The matrimonial home is located here. The husband, against whom any support order may be sought, is employed here and has assets here.

10The wife claims to have insufficient resources to allow her to litigate her case here. Her evidence is very sparse. I have been provided with no evidence of her income or means other than her own bald statement that she can not afford to litigate here. She has not said that she could afford legal advice in England but not here. I do know that she is a physician and she now has employment. I have no evidence to show that the husband’s means exceed those of the wife, except by inference from the fact that he paid for her lawyer and paid for her medical requalifications immediately after the separation. However, that could be only a temporary disadvantage for the wife.

11Today the wife argued her motion by telephone. There is no reason that electronic communications could not be used for any future appearances.

12In sum, the wife has not discharged the onus of showing that England is a more appropriate forum for resolution of the issues.

13That does not mean that she should now be barred from participating in this case and asserting any claim of her own. The focus thus far has been on service of documents to get the case going and on whether the case should proceed here at all. The wife will be given an opportunity to serve and file an answer, if she wishes to.

[14]

Costs

The husband has asked for costs of this motion in the amount of $8,580 (21.6 hours of lawyer time) and $2,886 for the motion for substituted service. The endorsement on the substituted service motion specifies “no costs.” The costs on this motion are rather high but there is some law involved.

15Because there have been a number of procedural skirmishes in this case already, and in recognition that there are effective means of electronic communications, I will give some directions to facilitate future service and filings.

[16]

Order

My order is as follows:

1. The wife’s motion for a stay is dismissed.
2. The wife may serve and file an answer, along with any documents required by the Family Law Rules to be served with it, within 60 days.
3. Documents may be served by either party on the other by email.
4. The email address for service on the wife is ba6y6um@hotmail.com until she gives notice of a different address.
5. The email address for service on the husband is dmelamed@torkinmanes.com until he gives notice of a different address.
6. Email service is effective on the day of transmission if it is received by 4 p.m. local time on a business day. Email received after 4 p.m. local time or on a day that is not a business day is effective on the next business day.
7. The wife may use the firm of Torkin Manes as her agent for filing documents with the court office, on payment of an agreed fee for providing this service to her. She may also use any other means allowed by the Family Law Rules or permitted by court order for the filing of documents with the court.
8. Costs of this motion are awarded to the husband in the all inclusive amount of $5,000, payable on the final settlement or adjudication of this case, or on December 31, 2016, whichever comes first.

Perkins J.