COURT FILE NO.: FS-20-98727-000
DATE: 2020 11 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NAVDEEP SINGH SANDHU
Parminder Hundal, for the Applicant
Applicant
- and -
NAVJOT KAUR
Respondent
Sukhwinder Singh Samra, for the Respondent
HEARD: November 23, 2020
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] This matter originally came before me on October 29, 2020 by way of an urgent, ex parte motion by the Applicant Husband. On that day, I ordered that the Respondent Wife be served in British Columbia, where she was currently residing, and that this motion be returned before for consideration.
[2] Upon being served in accordance with my Order of October 29, 2020, the Wife retained Ontario counsel and brought her own motion. Accordingly, there are two motions before me today:
a) The Husband seeks the following orders:
That the child of the marriage, Himmat Singh Sandhu, born July 1, 2019, be returned to the jurisdiction of Ontario from Surrey, British Columbia;
That the removal of the child from the province of Ontario be restricted;
A police enforcement clause; and,
The scheduling of a case conference.
b) The Wife seeks the following orders:
Leave to bring this motion in advance of a case conference; and,
A stay of these proceedings or that they be transferred to the Supreme Court of British Columbia.
Materials Relied On
[3] In support of his motion, the Husband filed a Notice of Motion, affidavits sworn October 15, 2020 and November 18, 2020, and a Statement of Law with cases.
[4] In support of her motion, the Wife filed a Notice of Motion, affidavits sworn November 16, 2020 and November 19, 2020, and a Factum.
Background
[5] The parties were married in India in March 2017. At that time, the Wife lived in India and the Husband resided in Ontario. Approximately two weeks after the wedding, the Husband returned to Canada to live in his home in Caledon, Ontario. The Wife remained India. The Husband sponsored the Wife to come to Canada after their marriage, and she arrived in Canada on August 11, 2018 and immediately lived with the Husband.
[6] In October 2018, the Wife became pregnant. The Wife returned to India on January 31, 2019 to attend her brother’s wedding and remained there until March 13, 2019. On March 13, 2019, the Husband states that the Wife flew directly to Vancouver, where she has family. The Wife states that she actually landed in Toronto, but when the Husband was not there to pick her up, she took a flight to Vancouver on the same day.
[7] The Wife remained in the Vancouver area. The child, a son, named Himmat Singh Sandhu was born in Vancouver on July 1, 2019. The child was not due until July 20, 2019, but it was born prematurely by caesarian section. The Husband was advised after the birth and visited the Wife and the child on July 11, 2020 for approximately one week, after which he had to return to work. The Wife remained in the Vancouver area with her family. The Husband states that this was for two reasons. First, the wife had to recover from her surgery. Secondly, it was their cultural custom that the Wife should remain with her family for 40 days following a birth. The Wife’s brother and mother were with the Wife in Vancouver. After the 40 days expired, the Wife apparently made excuses to stay in Vancouver but did eventually return to Ontario in December 2019 with her own Mother and the child, and they all resided together with the Husband.
[8] The Wife resided consistently with the Husband throughout 2020. On or about September 16, 2020, the Wife called the police and alleged various forms of assault. The Husband was arrested, following which he was required to leave the matrimonial home. As a condition of his release, he was prohibited from communicating with the Wife and the child, directly or indirectly, except by way of a family court order or by a separation agreement made after that date. The Husband was released on or about September 18, 2020. The Wife maintains that September 16, 2020 is the separation date.
[9] The Father alleges that he believed that, after his arrest, the Wife left the matrimonial home with the child and stayed with other family in Brampton, but he was not sure where. Upon his release, the Father retained counsel and tried to serve the Wife with a letter advising her to obtain counsel and indicating that he wished to have access to their child. An affidavit of attempted service was filed showing that he attempted to serve the Wife at four different addresses in Brampton, where he thought the wife might be. She could not be located.
[10] On September 18, 2020, the Husband received a text notification alerting him that the Wife made a charge on their visa card with Air Transat for $90.40. He feared that she was making plans to leave. Later, in late September or early October 2020, the Husband was alerted to a charge of $2,000 that was made by the Wife on their credit card to Jasdeep Singh Mattool, who is a lawyer in the Vancouver area.
[11] The Husband then instructed his counsel to commence this application, which was done on October 22, 2020. Counsel for the Husband states that this was the earliest that she could meet with him. In his Application brought in this Court, the Husband sought a divorce and corollary relief, namely, custody, and the return of the child to Ontario. He has sought this relief pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[12] The Wife swears in her affidavit that she relocated with the child to Surrey, British Columbia on September 18, 2020. She alleges that she had the implied consent of the Husband to do so, which the Husband adamantly denies.
[13] The Wife commenced family law proceedings in Surrey, B.C. on October 14, 2020, identified as court file no. E60997, wherein she sought that a parenting order, a support order, a non-removal order, a non-harassment order, a restraining order, and an order that the child be prohibited from being removed from British Columbia (“B.C. Proceedings”). She did not seek a divorce. In her court forms though, the Wife ticked the box indicating that she sought her relief under both the Divorce Act and the Family Law Act, S.B.C. 2011, c.25 (“B.C. FLA”).
[14] In the B.C. Proceedings, the Wife alleges that she is ordinarily resident in British Columbia and that the child has been a habitual and ordinary resident of British Columbia since September 15, 2020. This latter statement is contrary to her sworn affidavit of November 16, 2020 in these proceedings, which states that she did not leave for B.C. with the child until September 18, 2020. This departure date is confirmed by the visa alert that the Husband received indicating that the Wife charged an item with Air Transat on September 18, 2020.
[15] There is no evidence that the pleadings from the B.C. Proceedings were served on the Husband, or that any order been made.
[16] In support of his position that the child is habitually resident in Ontario, and should be returned here, the Husband points to the following:
a) The Wife lived in Ontario from December 2019 to September 18, 2020, which was two days after her stated date of separation;
b) In her sponsorship application, dated June 2017, the Wife stated it was her intention to live in Brampton, Ontario;
c) The Wife made arrangements to give birth at Peel Memorial Hospital;
d) The child has an Ontario Health Card;
e) The child received his immunizations in Ontario; and,
f) In 2019, the Husband and Wife filed tax returns together, listing their Caledon, Ontario address as their home.
[17] In support of her position that the child is habitually resident in B.C., the Wife relies on the following:
a) The child was born in B.C.;
b) The child received immunizations in B.C.;
c) She tried to file her tax returns in B.C. only to discover that the Husband already did so in Ontario, without her permission;
d) She has a driver’s license in B.C., issued in September 2019;
e) She has an “on call” teaching position in Surrey; and,
f) She has close family ties in B.C.
[18] The Husband alleges that the entire marriage was a fraud on him and that the Wife’s only reason for marrying him to was allow her to immigrate to Canada. The Wife denies that she needed the Husband to come to Canada, as she already has family here. She has maintained that the short marriage was rife with emotional, mental, verbal, and physical abuse by the Husband towards her.
Issues
[19] In essence, the main decision to determine is whether the Superior Court of Justice in Ontario has jurisdiction to hear this matter. The remainder of the relief sought by the parties will flow from there.
Analysis
[20] Issues of jurisdiction are addressed in both the federal and provincial legislation. It is clear in Ontario, that where proceedings are commenced under the Divorce Act, any application under the CLRA, if not already decided, is stayed, except by leave of the court: CLRA, s. 27. The federal legislation takes precedence.
[21] The applicable sections of the Divorce Act are as follows:
2(1) In this Act,
corollary relief proceeding means a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a custody order; (action en mesures accessoires)
divorce proceeding means a proceeding in a court in which either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a custody order; (action en divorce)
3 (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.
(2) Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding shall be deemed to be discontinued
4 (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if
(a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or
(b) both former spouses accept the jurisdiction of the court.
(2) Where corollary relief proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a corollary relief proceeding was commenced first has exclusive jurisdiction to hear and determine any corollary relief proceeding then pending between the former spouses in respect of that matter and the second corollary relief proceeding shall be deemed to be discontinued.
[22] The Wife argues that she has commenced a corollary proceeding in British Columbia. Given that she commenced her action prior to the Husband, the Supreme Court of British Columbia has jurisdiction pursuant to s. 4(2) of the Divorce Act.
[23] This argument is rejected. The Wife has not started a corollary proceeding as defined by the Divorce Act, because she is not seeking a divorce. The term “corollary relief” means that relief is sought corollary to the divorce. If she does not seek a divorce, or has not already obtained a divorce, she is not seeking relief corollary to the divorce. The result is that she is seeking her relief under the provincial legislation alone.
[24] The law is clear that corollary relief under the Divorce Act, must be in reference to a request for a divorce, or in reference to a previous divorce. In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada was considering the issue of retroactive child support. Among the four cases before them, some relied on provincial legislation, while at least one relied on the Divorce Act. In considering the application of the Federal Support Guidelines, Bastarache J. states at para. 49:
49 Of course, this federal regime does not apply to all child support situations in Canada. The federal government’s jurisdiction over child support is located in its power over divorce: s. 91(26) of the Constitution Act, 1867. Where the child support order cannot be seen as an incident of divorce, it is the provinces that have jurisdiction over the matter: see Jackson v. Jackson, 1972 CanLII 141 (SCC), [1973] S.C.R. 205, at p. 211; Zacks v. Zacks, 1973 CanLII 137 (SCC), [1973] S.C.R. 891, at p. 912.
[25] The historical basis of this interpretation is well laid out by Perkins J. in L. (N.) v. M. (R.R.), 2016 ONSC 809, wherein he states, at paras. 117 and 118:
[117] In 1968, Parliament enacted the first national divorce legislation, the Divorce Act, 1968, and at the same time asserted jurisdiction over custody, access, child support, and spousal support when “corollary” to a divorce. This assumption of jurisdiction over what had previously been exclusively provincial subject matters was justified as being “necessarily ancillary” to the exercise of jurisdiction over divorce: Papp v Papp, 1969 CanLII 219 (ON CA), [1970] 1 OR 331 (CA); Jackson v Jackson, 1972 CanLII 141 (SCC), [1973] SCR 205; Zacks v Zacks, 1973 CanLII 137 (SCC), [1973] SCR 891.
[118] The 1968 divorce legislation was repealed and re-enacted as the Divorce Act, 1985, which (with some amendments) is the Act in force today. Like the 1968 Act, it covers custody, access, child support, and spousal support when “corollary” to a divorce application. It even permits parties who are already divorced to commence or continue a “corollary relief proceeding” seeking only custody, access, child support, or spousal support: see section 2(1) definition, section 4.
[26] Accordingly, while the Wife claims she commenced an application under the Divorce Act, she is essentially relying on the provincial legislation alone, irrespective of which box she ticked on her court forms. It is the Husband who has commenced an application under the Divorce Act. He was the first to do so and, accordingly, the Superior Court of Ontario has the jurisdiction to hear this divorce proceeding, which, by definition, includes any corollary relief requested.
[27] This is further supported my finding that the child is habitually resident in Ontario. The CLRA states:
22 (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) 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) 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.
[28] It is uncontested that the child last lived with both parents in Ontario on September 16, 2020. There is no separation agreement. On the affidavit evidence before me, the Wife has not shown on the balance of probabilities that the Husband agreed or acquiesced to her relocating to B.C. with the child. The fact that he knew she had family ties in B.C. does not amount to acquiescence. The Husband moved with relative dispatch in commencing these proceedings upon learning of the Wife’s relocation with the child.
[29] I find the comments of Sager J. helpful in this regard. In Duman v. Duman, 2017 ONCJ 629, the court was considering the jurisdiction of the Ontario Court of Justice in light of one parent’s move with the child to Edmonton. In response to that parent’s position that the other party consented to the move, Sager J. stated the following at para. 88:
[88] A parent who moves a child’s permanent residence any significant distance from the other parent without a court order or Separation Agreement permitting such a move, must be prepared to demonstrate in no uncertain terms that the other parent consented to the move. Unequivocal consent to such a move must be clear and concise, not based on inferences. Clear and concise consent cannot be found in cryptic text messages or bad behaviour.
[30] The Wife’s evidence is far from certain. Her departure with the child to Vancouver coincides with the Husband’s release following his assault charges. She has alleged she was fearful of the Husband. She is seeking a restraining order. These are not the actions of a person who had the consent of her spouse to leave. Section 22(3) of the CLRA makes it clear that the abduction of a child without the consent of parent does not alter a child’s habitual residence.
[31] Finally, I have also considered the comments of Laskin J.A. in Ojeikere v. Ojeikere, 2018 ONCA 372, wherein he states, at paras. 14-16:
[14] The specific purposes of s. 22 include deterring parties from “shopping” for a forum to decide their custody dispute, and importantly, discouraging child abduction. See Brooks v. Brooks (1998), 1998 CanLII 7142 (ON CA), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.
[15] Neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test – neither provision asks the court to consider the child’s needs and circumstances as set out in s. 24(1)[2] and the catalogue of best interests considerations listed in s. 24 (2)
[16] But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.
[32] Given my finding that the Ontario Superior Court of Justice has jurisdiction to hear this matter, and that the child is a habitual resident of Ontario, the child must be brought back to Ontario. I am cognizant of the current restrictions in place that prohibit the Father from communicating with the child. Therefore, I am not in a position to grant the Husband any form of access until the issue is canvassed at a case conference, which should be schedule immediately. Accordingly, the Wife should also return to Ontario with the child.
[33] At this juncture, I will allow the Wife the opportunity to return to Ontario on her own accord, without the embarrassment of having the police attend at her residence and apprehend her child. If she does not return with the child though, in the time required, the Husband can move before me for the appropriate police apprehension order.
Conclusion
[34] Accordingly, I make the following orders:
a) The Wife’s motion is dismissed;
b) The child, Himmat Singh Sandhu, born July 1, 2019, shall be returned to Ontario with the Wife, Navjot Kaur, within 30 days of the date of this Order;
c) If the Wife does not return with the child by this date, the Husband may move before me, on an urgent basis and with notice to the Wife, and seek the appropriate police apprehension order;
d) The child shall not be removed from the province of Ontario without further court order or written consent of both parties;
e) Service of the Application and Form 35.1 in this matter on the Wife is validated as of November 2, 2020. The Wife has thirty (30) days from today’s date to serve and file any responding materials;
f) The parties are to arrange an urgent early case conference to address the issues of access; this urgent early case conference may be scheduled prior to the Respondent’s return to Ontario as it is to be conducted by video conference;
g) The Applicant shall ensure that a copy of this endorsement and my endorsement of October 29, 2020 are included in their materials before the case conference judge;
h) The Applicant shall ensure that a copy of this order shall be filed in the B.C. Proceedings;
i) The parties are encouraged to resolve the issue of costs. If they are unable to do so, the Husband shall serve and file his written submissions on or before 4:30 p.m. on December 4, 2020. The Wife shall serve and file her responding submissions on or before 4:30 p.m. on December 11, 2020. The Husband may serve and file Reply submissions on or before 4:30 p.m. on December 18, 2020. All written submissions are restricted to two pages, single-sided and double-spaced, exclusive of costs outline and offers to settle. All costs submissions shall be e-mailed to scjtrialofficebrampton@ontario.ca and directed to my attention. No submissions may exceed 10 MB; and,
j) The remainder of the Husband’s motion is dismissed.
Fowler Byrne J.
Released: November 26, 2020
COURT FILE NO.: FS-20-98727-000
DATE: 2020 11 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NAVDEEP SINGH SANDHU
Applicant
- and -
NAVJOT KAUR
Respondent
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: November 26, 2020