COURT FILE NO.: FS-15-84065-00 FS-17-89967-00 FS-18-90218-00 DATE: 20180626 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gurcharan Singh Rai Applicant
AND:
Narinder Kaur Grewal Respondent
BEFORE: Ricchetti, J.
COUNSEL: J. Kalina for the Applicant/Husband V. Sehdev for the Respondent/Wife
HEARD: June 21, 2018
ENDORSEMENT
The Motion
1This motion was brought by the Wife on May 22, 2018 in FS-15-84065 seeking an order setting aside the divorce order of the Honourable Justice Tzimas dated January 17, 2018.
The Background
2The parties commenced cohabiting in 2003. They were married on August 6, 2011. The parties separated on June 12, 2014.
3They have a child of the marriage, Gursewak Singh Grewal born December 12, 2006.
4The Husband commenced FS-15-84065-00 (the "2015 File") seeking a divorce. A Simple Divorce Application.
5On January 17, 2018, the Husband sought and was granted a divorce (the "Divorce Order"). The Wife had been noted in default and the Divorce Order was obtained "over the counter" by way of affidavit evidence.
6The parties were negotiating with their lawyers on the remaining matrimonial issues. On February 28, 2018, the Wife states that she, for the first time, was told that the Husband had obtained a divorce.
7Approximately one month later, on March 25, 2018, the Husband re-married.
8Approximately 3 months after finding out that her Husband had been divorced, on May 22, 2018, the Wife brought this motion to set aside the Divorce Order.
9The Wife states that she took "immediate action" upon finding out about the divorce. The Wife's counsel explained that it took time to investigate the matter before bringing this motion. I reject these explanations. The evidence is to the contrary. There is no evidence that the Wife or her counsel made enquiries of the Husband or his counsel regarding the Divorce Order. The Husband was represented by counsel at the February 28, 2018 meeting and it would have been simple for the Wife's counsel to have requested a copy of the Divorce Order. There is no evidence of any enquiries. I also have difficulty accepting that it would take very long (a day or two) to ascertain that the Divorce Order had issued. The Trial Coordinator's Office would have that information within a day or two of the order being granted.
10As a result, I conclude that the Wife delayed in bringing this motion to set aside the Divorce Order.
The Wife's position
11The Wife states that she was never served with any documentation regarding the 2015 File. I make no finding one way or another on this issue.
12The Wife states that the Husband lied in his Affidavit for Divorce, including whether the Husband was paying and the amount of child support. I make no finding, one way or another, on this issue.
13The Wife's claims prejudice in that "there are major issue that need be resolved between us before a divorce is granted."
Analysis
14The court enquired of the Wife's counsel why a "nunc pro tunc order" severing the divorce from the corollary relief sought would not eliminate any and all issues of prejudice claimed by the Wife. No satisfactory answer was given by the Wife's counsel.
15The Wife's counsel repeated that the Husband's affidavit of service and contents of his Affidavit for Divorce were false. Essentially, this is the only real basis that the Wife seeks to set aside the divorce.
16In this case, there is real prejudice to the Husband. He is remarried. His new wife will be prejudiced. He will be "disadvantaged" if the order sought is granted as will his new spouse.
17In this case, the Wife refuses to accept an order which would remove all prejudice she claims - the corollary relief, including child and spousal support.
18The refusal to consider and accept a nunc pro tunc order suggests that the Wife's motivation is to exact leverage on the Husband regarding the corollary relief rather than avoiding any prejudice to her.
19The Husband consents to a nunc pro tunc order and confirmed to this court that the Wife may proceed with her corollary relief claimed in the consolidated proceedings.
20Setting aside the Divorce Order is a discretionary remedy. Weighing the prejudice to the respective parties, I decline to make such an order.
21Given that the 2015 File was for a simple divorce, it is necessary that the three files be consolidated so that the corollary relief can proceed in the consolidated proceedings after severing the divorce.
22Instead, I make the following orders:
a) on consent of the parties, an order consolidating the three proceedings referred to above (FS-15-84065-00; FS-17-89967-00 and FS-18-90218-00) is hereby granted nunc pro tunc as of January 16, 2018.
b) Any outstanding pleadings in the consolidated proceeding by either party shall be served and filed within 30 days. The parties may proceed to bring motions in the consolidated proceeding without having to attend a case conference before bringing such motions; and
c) on consent of the Husband, the divorce is severed from the corollary relief in the consolidated proceeding is granted nunc pro tunc as of January 16, 2018;
Costs
23The Husband was successful.
24As for the issue of costs, without deciding whether the Husband lied in his affidavit or falsified an affidavit of service, I decline to award full indemnity or even substantial indemnity costs to the Husband.
25The materials filed were not complex or lengthy. The legal issues were not difficult. The motion did not take long to argue.
26I award the Husband costs of $1,500 plus HST inclusive of disbursements payable in 90 days.
Ricchetti, J.
Date: June 26, 2018