COURT FILE NO.: FS-19-96669-00 DATE: 20200818

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ONKAR SINGH Applicant

- and -

RUPINDER KOUR Respondent

Counsel: Liza Bakhshi and Harminder Dhillon, for the Applicant Amal Nayar, for the Respondent

Heard: July 23, 2020 via videoconference

REASONS FOR JUDGMENT

MANDHANE J.

INTRODUCTION

[1] The parties were married in March 2007 and lived together in India until May 2013, when the Applicant/Father (“Father”) left for Canada alone. The Respondent/Mother (“Mother”) remained in India with the children of the marriage, Angad Pal Singh Virk (born May 11, 2008) and Agamjot Kaur Virk (born March 14, 2013) (“the children”).

[2] In July 2015, the Mother and the children came to Canada to be reunited with the Father. The family lived together in Brampton from July 2015 until November 25, 2017, after which they lived separate and apart. The children have never lived apart from the Mother.

[3] The Mother and children obtained permanent residency and, in July 2019, they moved to British Columbia (“B.C.”). The Father remained in Brampton.

[4] In October 2019, the Father applied for a simple divorce. In November 2019, the Mother commenced family proceedings in B.C., seeking sole custody of the children, child support and spousal support. Shortly afterwards, the Father withdrew his application for a simple divorce and commenced this proceeding seeking a divorce, custody and access.

[5] The Mother’s position is that the custody and access matters should be determined in B.C. rather than Ontario. The Father opposes the motion.

[6] For reasons that follow, I grant the Mother’s motion and transfer the Father’s divorce proceeding to B.C.

FACTS

[7] Upon their arrival in Canada in July 2015, the Mother and children were vulnerable and entirely dependent on the Father. The Mother and children arrived in Canada as “visitors.” This meant that the Mother could not work outside the home or apply for welfare, the children could not be enrolled in school, and the Mother and children would have to return to India in or around October 2017. The Mother and children did not know anyone in Brampton and were entirely dependant on the Father’s family and social circle for community support.

[8] The parties lived together in Canada for two years and four months. These were not happy times. The Mother thought the Father was cheating, while the Father found the Mother controlling and angry. The Father expressed little interest in meeting the children’s needs or being involved in their day-to-day lives. Even still, the children thrived in school, sports and other activities, and developed close relationships with their paternal cousins. The family was positively involved in the local Sikh community.

[9] In the Fall of 2017, after learning that the Father had not applied for permanent residency for her and the children, the Mother confronted the Father. The parties fought, with the Father suggesting that the Mother and children return to India.

[10] On November 25, the Father left for India. The Mother and children remained in the matrimonial home, a rental apartment in Brampton paid for by the Father. The Father returned to Brampton sometime later, but never to the matrimonial home.

[11] Between December 2017 and May 2018, the Father helped cover five months’ rent for the Mother and children. During this time period, the Mother and Father exchanged text messages wherein the Father implied that he would only pay support if the Mother agreed to sign a separation agreement. No such agreement was ever signed.

[12] In total, during the first 11 months post-separation, the Father’s income was approximately $100,000 and he paid the Mother approximately $1,000 per month. Given the cost of living and the fact that she could not legally work in Canada, I accept that the Mother began to rely on her family in B.C. for financial support.

[13] During this same 11-month period post-separation, the Mother effectively blocked the Father’s access to the children. The Father was only able to access the children once when he showed up at their school for a short visit in the presence of the Mother.

[14] While the Mother’s conduct was certainly wrong in this regard, I note that, beyond asking to take the children for an “outing” now and then, the Father did not take any meaningful steps to secure stable and ongoing access to the children. He did not reach out to the Mother to propose an access schedule, and he did not file an application seeking custody or access. His communication with the Mother’s brother does not establish any intention to access the children on a regular basis.

[15] By April 2019, three months prior to the Mother’s departure for B.C., the parties had arrived at a stalemate. The Father refused to pay adequate support and the Mother refused to let him see the children. In the context of their short time together in Ontario, I accept that the Father’s relative financial and parental absence after the separation was interpreted by the Mother as the nail in the coffin of their relationship.

[16] In July 2019, without consulting or seeking the consent of the Father, the Mother permanently relocated to B.C. with the children. The Mother moved because she felt abandoned by the Father and believed that her relatives in B.C. would offer her and the children financial and social support. I reject the Father’s claim that the Mother or her brother actively tried to mislead him about her relocation to B.C.

[17] On September 3, 2019, the Father texted the Mother asking for her address so that he could send her some papers. She did not respond. The next month, on October 7 and 17, he sent her approximately $3,250 by e-transfer.

[18] On October 17, the Mother also received an email from the Father’s counsel who noted the Father’s intention to file a “Simple Divorce Application.” Counsel emphasized that he was claiming only “a change in marital status so that you both will be considered legally single.” Counsel requested that the Mother sign and send back the divorce application and an “acknowledgement form.” There was no mention of paying support or making arrangements for access to the children.

[19] I find that the Father’s simple divorce application was an attempt to crystalize the status quo that had emerged whereby the parties would go their separate ways, with the Mother retaining sole custody of the children and the Father ceasing to have any further or ongoing financial obligations. The Father’s simple divorce application was issued by this Court on October 25, 2019.

[20] On November 8, 2019, the Mother initiated family proceedings in B.C., seeking sole custody of the children, child support and spousal support.

[21] Within one month, the Father withdrew his claim for a simple divorce and commenced this proceeding wherein he seeks a divorce, custody and access. His ex parte motion to have the children returned to Ontario was denied by this Court.

[22] In any event, I find that the Father’s claim for corollary relief and his ex parte motion for return of the children was largely tactical and not motivated by a genuine desire to maintain a long-term, ongoing relationship with the children. Notably, the Father has never applied for interim custody and access to the children.

[23] The children currently reside in B.C. with the Mother and completed their last year of school there.

ANALYSIS

[24] I am asked to determine which province—Ontario or B.C.—should exercise jurisdiction over these proceedings. For reasons that follow, I exercise my discretion to transfer the Father’s divorce proceeding to B.C. The children are most substantially connected to B.C. and it is in their best interests for the matter to proceed there.

[25] That being said, I accept that Ontario has prima facie jurisdiction in this case. This is because, contrary to the requirements of s. 3(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the Mother was not ordinarily resident in B.C. for at least one year prior to initiating her claim for custody and support.

[26] By all accounts, the Mother was only resident in B.C. for approximately four months before she commenced her proceeding. While her claim was for corollary relief only (not divorce), the law is clear that the issue of custody is incidental to divorce. Without a pre-existing divorce application, B.C. could not grant the relief sought by the Mother [See: Rothgiesser v. Rothgiesser, 2000 ONCA 1153, 46 O.R. (3d) 577, (Ont. C.A.); P.K. v. P.S.K., 1992 ABCA 182].

[27] The fact that the Father did not make a claim for corollary relief in his initial divorce application in Ontario is immaterial to the determination of prima facie jurisdiction. In Metatawabin v. Abraham, 2007 ONSC 1931, the court considered a similar set of facts. The court reasoned that a court having jurisdiction over the divorce could adjudicate with respect to custody of a child of the marriage at any time during the ongoing proceedings, whether or not custody was claimed in the initial application.

[28] In this case, like in Metatawabin, B.C. does not have prima facie jurisdiction because the parties were not divorced when the Mother commenced her proceeding. Moreover, the Mother did not and could not apply for a divorce in B.C. Conversely, Ontario has prima facie jurisdiction because the Father met the residency requirements of the Divorce Act when he brought his claim for corollary relief.

[29] While I find that Ontario has prima facie jurisdiction, this finding does not resolve the matter because the Mother asks that I exercise my discretion under the Divorce Act to transfer the matter to B.C.

[30] Where a corollary claim for custody is opposed, s. 6(1) of the Divorce Act allows a court to transfer the divorce proceeding to another province where the children are “most substantially connected” with that province.

[31] As an aside, I note that the case law confirms that s. 6(1) of the Divorce Act requires that a matter must be transferred in its entirety. For example, I cannot order that the divorce proceed in Ontario, while the claim for corollary relief proceed in B.C. [See S.J.H. v. M.E.H., 2011 ONSC 1569].

[32] The court in Agnew v. Violo, 2013 ONSC 4430 noted that, in exercising its discretion, the court should consider the best interests of the child and whether the transfer would impede the proper administration of justice.

[33] The court in Agnew v. Violo also outlined some of the factors that should be considered in determining whether to transfer a matter pursuant to s. 6(1) of the Divorce Act. The following non-exhaustive set of factors are commonly applied:

• The presence of the child in the jurisdiction;
• The length of residence in each competing jurisdiction;
• The strength of the child's bonds to persons and circumstances in each province;
• Whether the removal was wrongful;
• Whether the removal was justified in light of abuse directed at the child by the parent remaining in the other province;
• The behaviour of the parents towards compliance with interim custody orders;
• The province in which evidence of the child's present circumstances is most readily available; and
• The province in which the issue of custody can be most easily and cheaply determined.

[34] In this case, the children have a meaningful connection to both Ontario and B.C. Indeed, they seem remarkably capable and resilient. However, I agree with the Mother that the children are now most substantially connected to B.C.

[35] Applying the factors from Agnew v. Violo, I base my decision to transfer the proceedings to B.C. on the following factors:

• The children are currently present in B.C. and have lived there for over one year;
• The children completed their last year of school in B.C. and wish to remain there;
• The children have extended family upon which they rely for emotional, social and financial support; and
• The children’s present circumstances would most readily be available to the court in B.C.

[36] In finding that the children are “substantially connected” to B.C., I also place significant weight on the Father’s acquiescence to the children being permanently relocated to B.C.

[37] Even before the couple separated, the Father encouraged the Mother to return to India with the children and without him. To ensure this would happen, he applied for permanent residency for himself without listing the Mother and children as accompanying dependents.

[38] After the separation and a few months after the move to B.C., the Father filed a claim for simple divorce with no corollary relief, noting that this would allow them to go their separate ways. He never mentioned wanting to access the children. Overall, the Father cared very little about where the children resided, so long as it was not with him.

[39] Moreover, while the Father has taken some legal steps to have the children returned to Ontario and to obtain custody and access, I find that these steps were largely tactical rather than genuine.

[40] On the other hand, the Mother’s conduct in blocking access to the children while they were in Ontario and moving to B.C. without consulting the Father was inappropriate and weighs against transferring the matter to B.C. Courts are rightly concerned about parents making unilateral decisions regarding the residency of the children.

[41] However, in light of all the factors, I don’t think the Mother’s conduct post-separation rises to a level that I should deny the transfer on that basis alone. The Mother’s actions were clearly a response to the Father’s unwillingness to pay support. They were motivated by frustration and a lack of bargaining power rather than malice.

[42] Finally, I find that it is in the best interests of the children to remain in B.C. pending the outcome of the divorce proceeding. The children have moved many times in the past few years: from India to Ontario and then to B.C. They are young and it does not make sense for them to switch schools and reintegrate all over again. It is also unclear how much they would see their Father if they returned to Ontario, while their Mother’s family in B.C. is attentive, available and supportive.

CONCLUSION

[43] This matter shall be transferred to B.C pursuant to s. 6(1) of the Divorce Act. The order shall issue as drafted by counsel for the Mother.

[44] The parties made submissions and filed Bills of Costs. Costs shall be paid by the Father to the Mother on a partial indemnity basis in the amount of $8,000, inclusive of HST and disbursements. I decline to award costs in relation to case conferences of this matter.

[45] In closing, I encourage the parties to come to an interim, without prejudice, agreement regarding custody, access and support so that the children’s well-being can be rightly prioritized, and they can continue to thrive in B.C.

Mandhane J. Released: August 18, 2020