COURT FILE NO.: FS-20-97720-00
DATE: 2022 06 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HARDEEP NIJHER
Lalit Kalra, for the Applicant
Applicant
- and -
MANPREET NIJHER
Respondent
Self-Represented, Respondent
HEARD: May 13, 2022, by video-conference
REASONS FOR DECISION
Emery J.
[1] The applicant husband, Hardeep Nijher, brings this motion to sever the divorce he requested in his Application from the corollary relief the respondent wife, Manpreet Nijher (now known as Manpreet Dhaliwal) seeks in her Answer. The motion is brought under Family Law Rule 12(6) which allows the court to split a claim for divorce from the other issues in a case, on motion.
[2] Ms. Dhaliwal has brought a cross-motion in which she asks the court to dismiss the motion to sever. This result would be available for her to obtain without a cross-motion if she successfully opposed Mr. Nijher’s motion.
[3] In addition, Ms. Dhaliwal requests a disclosure order in her cross-motion. This disclosure was not particularized in the Notice of Motion or in her supporting affidavit sworn on May 9, 2022, and few submissions were made about disclosure. In any event, Ms. Dhaliwal states in the Notice of Motion that the applicant has “consented to that”. Her motion for disclosure is therefore dismissed, without prejudice to bring a further motion to enforce that disclosure, if necessary.
[4] The evidence in Ms. Dhaliwal’s affidavit was primarily focused on responding to Mr. Nijher’s motion. The motion therefore proceeded on the issue of splitting the divorce claim from the other relief in the case.
Background
[5] Briefly, the history of the marriage is as follows.
a. The parties met online in July 2017.
b. At the time, Mr. Nijher resided in Ontario. Ms. Dhaliwal resided in British Columbia, where she was taking a Masters degree. After completing her studies, Ms. Dhaliwal moved to Ontario.
c. The parties were married on May 11, 2018, in Ontario.
d. The parties resided in the home of Mr. Nijher’s parents during the marriage.
e. Mr. Nijher sponsored Ms. Dhaliwal to become a Permanent Resident of Canada. He gave the Government of Canada a sponsorship undertaking to provide her with the necessities of life for three years after she becomes a Permanent Resident.
f. Ms. Dhaliwal became a Permanent Resident on May 29, 2019.
g. The parties separated on July 10, 2019, after approximately fourteen months together.
h. There are no children of the marriage.
[6] On June 22, 2020, Mr. Nijher brought an Application in which he only claimed a divorce.
[7] On July 22, 2020, Ms. Dhaliwal filed an Answer to claim a divorce. However, she also made claims for spousal support, equalization and various forms of financial relief, including damages for emotional distress and humiliation and for lost employment opportunities.
[8] The parties attended a Case Conference before Justice Van Melle on October 30, 2020. Justice Van Melle suggested that Ms. Dhaliwal obtain legal advice as soon as possible so that she can put forward a realistic proposal for settlement.
[9] Mr. Nijher first brought this motion on February 9, 2021. Justice Trimble dismissed that motion, without prejudice to bring it back on further evidence. The motion was dismissed because, if Ms. Dhaliwal did not have health and dental benefits through her employer, Mr. Nijher would be required to cover her under his benefit plan for the duration of his sponsorship undertaking.
[10] Justice Trimble also held that if Ms. Dhaliwal has health and dental coverage at her workplace, then Mr. Nijher was relieved from his undertaking and the divorce could be severed.
Positions of the parties
[11] Mr. Nijher has now brought the motion with evidence that Ms. Dhaliwal is gainfully employed and should have health and dental benefits through her employer. In the alternative, he brings the motion again because the sponsorship undertaking he gave to the Government of Canada expires on May 29, 2022. He bases the motion on grounds that the requirements set out by Justice Trimble to grant the Order to sever the divorce claim are now satisfied.
[12] Mr. Nijher wishes to proceed with an uncontested divorce as he plans to remarry.
[13] Ms. Dhaliwal opposes the motion on the basis that she will be disadvantaged if the divorce is severed on two grounds:
She was gifted jewellry by Mr. Nijher’s family on her marriage to Mr. Nijher. This jewellry was kept by Mr. Nijher or his parents. She states that this jewellry will be re-gifted to Mr. Nijher’s new wife if he is free to remarry; and
The home in which she and Mr. Nijher resided during the marriage was gifted to them by Mr. Nijher’s parents. Ms. Dhaliwal submits that severance of the divorce claim will impact her rights to make a claim for an interest in that property.
[14] Ms. Dhaliwal made submissions that she is owed more disclosure by Mr. Nijher but concedes that this disclosure issue does not cause any disadvantage to her on this motion. Those disclosure obligations remain the same in the case whether Mr. Nijher remarries or not.
[15] Ms. Dhaliwal explains in her affidavit why she withdrew the claim for mental distress from the family law case. She instead commenced a civil action on June 14, 2021, in Court File No. CV-21-2118 seeking damages from Mr. Nijher, his parents and sister for property claims.
[16] On October 10, 2021, Ms. Dhaliwal emailed counsel for Mr. Nijher in the family case to request his consent to amend her Answer to, among other things, claim an interest in the parents’ home and to add a claim for the return of jewellery. Mr. Nijher responded by asking for costs of $1,500 for his consent to amend. The evidence filed on the motion does not indicate whether Ms. Dhaliwal refused this demand. What is known is that Ms. Dhaliwal did not proceed with amending her Answer to add those claims.
[17] On January 6, 2022, Ms. Dhaliwal commenced an action in the Small Claims Court. In that action, she claims the return of jewellery and $5,000 for a VW Jetta for a total value of $35,000.
[18] In her affidavit filed in response to the motion, Ms. Dhaliwal places the value of $30,000 on the jewellery she alleges Mr. Nijher and his parents have wrongfully retained.
Issues and Analysis
[19] When Justice Trimble dismissed the first motion for this relief on a without prejudice basis, he did so on the basis that Ms. Dhaliwal did not have health and dental benefits through her employer at the time. Ms. Dhaliwal was ordered to provide Mr. Nijher with her benefit plan booklets to show what coverage was available to her. According to the evidence on this motion, she never produced that documentation as ordered, or as part of her disclosure obligations.
[20] Justice Trimble also relied on the sponsorship undertaking that Mr. Nijher had given to provide for Ms. Dhaliwal for three years in the event she was not covered by a benefit plan at work.
[21] At the motion, Ms. Dhaliwal admitted that she would qualify for coverage under the benefit plan extended by her own employer effective the day after the hearing, which would be May 14, 2022. This satisfies the first of Justice Trimble’s requirements for bringing the motion back.
[22] Mr. Nijher’s sponsorship undertaking expired on May 29, 2022. Even if Ms. Dhaliwal did not have a benefit plan extended to her as an employee, Mr. Nijher has no obligation to continue coverage for her as the sponsorship undertaking is at an end. This addresses Justice Trimble’s other concern.
[23] The impediments that caused Justice Trimble to dismiss the first motion on February 9, 2021 have dissipated over time. Ms. Dhaliwal now raises other issues relating to the loss of jewellery and the ability to claim an interest in the parent’s property as disadvantages she will suffer if the order is granted.
[24] Mr. Nijher relies on the decision of Justice Gray in Al-Saati v. Fahmi, 2015 ONSC 1114. At paragraphs 22 and 27-28 of that decision, Gray J. wrote:
…. requests to sever a divorce from corollary relief issues are almost routinely granted, provided adequate arrangements are made for the support of any children of the marriage……According to that subrule, an order splitting a divorce from the other issues may be issued if neither spouse will be disadvantaged by the order.
In my view, the word “disadvantaged”, as used in rule 12(6)(a), must mean legal disadvantage that the responding party may suffer if severance is granted. It must mean more than simply allowing the divorce to be withheld or delayed as a form of leverage for other issues that can be pursued separately.
In my view, the applicant will suffer no disadvantage if the divorce is severed. The spousal support issue can be pursued regardless of whether the divorce is severed or granted. The applicant already has a sizeable judgment against the respondent, and it can be enforced regardless of whether the divorce is severed or granted.
[25] Justice Gray found in Al-Saati that the responding party was “simply trying to use the withholding or a delaying of a divorce as leverage.” He concluded that he did not think that this is what was intended by FLR 12(6)(a).
[26] I agree.
[27] If the true motive of the party opposing the motion can be ascertained from the evidentiary record, that motive is a factor for the court to consider, but it is not the only factor. The court must also consider whether the severing of the divorce claim will enable the moving party to obtain a divorce with the effect of putting the other party to a “disadvantage.” In Al-Saati, Justice Gray held this term to mean a legal disadvantage. In my view, putting the other party to a legal disadvantage would require that other party to show that the severance would impair or prejudice the rights of that party in such a manner that it would impede their ability to pursue those rights, or work a profound unfairness.
[28] I find as a fact that Ms. Dhaliwal seeks to delay Mr. Nijher’s ability to re-marry as a form of leverage to settle the civil claims she has brought. She has not pleaded for the return of the jewellery in the family case. Instead, she is pursuing that claim for recovery or for the value of the jewellry in the Small Claims Court.
[29] Similarly, she has brought property claims against Mr. Nijher and his family members in a civil action, separate and apart from claims made in her Answer.
[30] The claims made in the two actions will continue even if Mr. Nijher remarries. Ms. Dhaliwal will not be disadvantaged in her pursuit of outstanding property claims by an Order severing the divorce.
[31] Finally, Ms. Dhaliwal relies on Zantingh v. Zantingh, 2021 ONSC 2312, where Raikes J. held that even where no direct prejudice will result from making an order to sever, the court still has discretion to refuse the motion. Ms. Dhaliwal made a submission in writing that Mr. Nijher evicted her from the matrimonial home, and that he removed her from the medical benefits plan through his employer before adding her back. In each respect, Ms. Dhaliwal alleges that Mr. Nijher was in breach of the sponsorship undertaking.
[32] I do not consider the decision of this court in Zantingh to apply for two reasons.
[33] First, Raikes J. found that the moving party had not complied with orders for disclosure, spousal support or to pay carrying costs. In this case, there is no outstanding order to give the court reason to exercise its discretion to deny Mr. Nijher the order for lack of compliance. If Ms. Dhaliwal is intent on making a claim for breach of the sponsorship undertaking as part of a claim for retroactive support or for breach of contract, she may do so in the family case even after a divorce is granted. As an example of how the court may exercise its discretion to deny a motion to sever, Zantingh is readily distinguished on the facts.
[34] Second, Ms. Dhaliwal has not included evidence of Mr. Nijher’s alleged breach of his sponsorship undertaking she asserts in her submissions.
[35] I therefore conclude on the record filed that Ms. Dhaliwal will not be disadvantaged by an order severing the divorce claim. The motion is granted, and the cross-motion is dismissed.
Costs
[36] The parties made further submissions after the motion was heard on May 13, 2022. Counsel for Mr. Nijher filed a Costs Outline at the motion, and Ms. Dhaliwal was given until 5 p.m. the following Monday to file a Costs Outline as the responding party.
[37] Under the auspices of making submissions on costs, Ms. Dhaliwal served a (first) Costs Outline on May 15 that she replaced with a second Costs Outline on May 16. I permitted the late filing of that Costs Outline, as well as for Ms. Dhaliwal to file a supplementary Costs Outline dated May 18 to respond to certain submissions on the substantive issue made in Mr. Nijher’s Costs Outline. I provided the opportunity to Mr. Nijher to file a final reply by May 20. I found the submissions from both parties to be largely repetitive of the submissions made at the hearing, except for Ms. Dhaliwal’s reference to the Zantingh case.
[38] Costs of a motion in a family law case are generally awarded under the presumption that the successful party is entitled to costs under Family Law Rule 24(1). Mr. Nijher was the successful party on the motion. Ms. Dhaliwal has not persuaded me in her various submissions that I should order otherwise. Mr. Nijher is therefore awarded the costs of the motion.
[39] Mr. Nijher advised the court he was seeking $2,000 for costs. Ms. Dhaliwal advised the court she would be seeking costs in the amount of $1,000, if successful.
[40] Having regard to these submissions and taking the factors under FLR 24(12) into account as to amount, I award costs in the amount of $1,500, all inclusive, to Mr. Nijher. I consider costs in that amount to be fair, reasonable and proportionate in all the circumstances.
Justice Emery
Released: June 1, 2022
COURT FILE NO.: FS-20-97720-00
DATE: 2022 06 01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HARDEEP NIJHER
Applicant
- and –
MANPREET NIJHER
Respondent
REASONS FOR DECISION
Emery J.
Released: June 1, 2022