COURT FILE NO.: FS-20-98075
DATE: 2022 09 21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Baljinder Singh, Applicant
AND:
Kuldip Kaur Badwal, Respondent
BEFORE: The Honourable Justice McGee
COUNSEL: Amal Nayyar, for the Applicant
Jagtesh Singh Chahal, for the Respondent
HEARD: September 16, 2022 (via Videoconference)
E N D O R S E M E N T
THE MOTION
[1] Mr. Singh asks for Orders on Summary Judgment declaring that:
a. The parties have been separated for over one year, and that
b. His claim for a divorce be severed from any corollary relief plead within this Form 8A Simple (divorce only) Application issued on July 29, 2020, and that
c. The Court dismiss Ms. Badwal’s claim by Answer that jurisdiction for this divorce claim should be in Calgary.
[2] There is no basis to sever the Divorce from the corollary issues because there are no longer any other issues plead within Mr. Singh’s Application or Ms. Badwal’s claim by Answer. This is a divorce only Application. The parties only briefly resided together following their marriage in May of 2017 and they have no children.
[3] Ms. Badwal’s Answer issued November 18, 2020 asks that Mr. Singh’s claim for divorce be dismissed and she makes a claim that instead, the marriage be annulled. If it is not annulled, she asks for a finding that the separation occurred on January 21, 2019 rather than the date plead by Mr. Singh: January 22, 2019.
[4] On August 30, 2022 Ms. Badwal served a Form 12 Notice withdrawing her claim for an Annulment.
[5] Prior to the hearing of this motion, Ms. Badwal conceded that Ontario has jurisdiction over the claim for a divorce Order pursuant to section3(1) of the Divorce Act R.S.C., 1985, c. 3. Section 3(1) provides that a court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding. There is no dispute that Mr. Singh has been resident in Brampton, Ontario since January 23, 2019.
[6] The only remaining issue for me to decide on this Motion is whether the parties have been separated for over one year and whether I can make such a finding at this time.
[7] Mr. Singh’s counsel advises me that the Superior Court of Justice filing office requires an Order that the parties have been separated for one year before a Motion for Divorce can be set down.
The Parties have Been Separated for One Year
[8] Ms. Badwal’s pleadings establish that the parties have been separated for one year. Order to issue that the parties have been separated for one year.
[9] Pleadings are a form of admission. They set out the relief that the party is requesting, the legal framework for the proceeding and the essential facts which support a cause of action.
[10] I find that the parties have been separated for one year as set out in section 8(2) of the Divorce Act which allows the Superior Court to grant a divorce if the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding.
The Order Can be Made at this Time
[11] Ms. Badwal asks that I not make a finding that the parties have been separated for one year for two reasons: today’s motion was brought before a Case Conference, and today’s motion is prohibited by Rule 16(2) of the Family Law Rules.
[12] Rule 14(4) of the Family Law Rules provides that no motion may be brought before a Case Conference on substantive issues unless there is a situation per section 14(4.2) of urgency or hardship.
[13] I find that an Order that the parties have been separated for a year is not a substantive issue that requires a Case Conference. Ms. Badwal’s Answer confirms that the parties have been separated for more than one year. I am unclear as to why the filing office would require such a finding, but in any event, this motion is better suited to a Rule 14(10) motion as it is procedural and uncomplicated.
[14] With respect to Ms. Badwal’s second reason, Rule 16 of the Family Law Rules provides for final Orders on a motion by summary judgment. Subrule 16(2) reads:
(2) AVAILABLE IN ANY CASE EXCEPT DIVORCE – A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
[15] Rule 16(2) is rarely referenced in the case law because it is not intended to create a bar to the granting of a divorce, but instead, to convey that there is a separate path for Motions for Divorce, which are also final Orders.
[16] Rule 16(3) provides that:
(3) DIVORCE CLAIM - In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12(6).
[17] Ms. Badwal may be conflating Rule 16(2) with Rule 12(6) of the Family Law Rules which sets out the test for splitting, that is, severing a divorce claim from the rest of the case: when (a) there might be disadvantage caused by the Order, and (b) reasonable arrangements have not been made for the support of any children of the marriage.
[18] The onus of showing that the responding party will not be prejudiced by the severance is on the party requesting severance: Bakmazian v. Iskedjian, 2015 CarswellOnt 18171 (S.C.J.) at paragraph 10 and Gill v Benipal 2022 CarswellBC 2790 (C.A.)
[19] In Gill v Benipal, the party opposing the divorce was residing outside of Canada during the pandemic and had made claims in British Columbia for a division of property and spousal support. In reversing the decision of the trial court judge to deny the severing of a claim for divorce, the Court of Appeal set a standard of actual prejudice or at least a reasonable likelihood of prejudice, cautioning that the granting of a divorce, properly before the Court, should not be withheld as a means by the Court to force either party to enter into a settlement of other issues in the proceeding.
[20] As simply stated by Justice Gray at paragraph 27 of Al-Saati v. Fahmi, 2015 ONSC 1114, a party cannot withhold a divorce as leverage.
[21] Ms. Badwal asserts at paragraph 16 of her affidavit of September 12, 2022 that “this case of divorce/annulment claim [should] be litigate in India, as if he gets Divorce in Canada, it negates my ability to make a claim for equalization of property and assets (gold, jewelry, money, expense, marriage expenses) in India.”
[22] During oral argument, I invited submissions on this point, but received no further information. Neither did I receive any evidence of a proceeding in India, such as a certified copy of translated pleadings showing that Ms. Badwal has made the claims set out in her affidavit, when those claims were made, or whether a change in spousal status would affect those claims.
[23] Internet print outs of general “ask a lawyer” postings are not admissible as either factual or as opinion evidence
[24] I was only advised by counsels that at some time after this Divorce Application was served on her, Ms. Badwal issued a claim for an annulment in India and that her claim had been dismissed. She states at paragraph 11 of her September 12, 2022 Affidavit that it was dismissed “due to error on the part of the lawyer.” During today’s hearing, Ms. Badwal’s counsel uploaded to Caselines a Notice showing an October 10, 2022 hearing on what is represented to be her reinstated claim for annulment.
[25] With no further information, or a legal basis upon which Mr. Singh should not be granted an Order for Divorce, I find that there is no foundation to defer the making of an Order that the parties have been separated for a year.
Summary
[26] I cannot give effect to Ms. Badwal’s assertion that she will be prejudiced by an Ontario Order for divorce. Here, there is no other claim plead by either party in this proceeding. Ms. Badwal’s claim for an annulment within her Answer and Claim has been withdrawn. As a result, the test within Rule 12(6), which speaks only to relief claimed within the same Application, is not invoked. It is immaterial that the parties disagree on all aspects of their relationship and the other’s character.
[27] Even had the test in Rule 12(6) been invoked, Ms. Badwal has provided neither the necessary particulars of a proceeding outside of Canada, nor a legal basis upon which I could take a foreign proceeding into account to demonstrate that an Ontario Order for divorce would cause her actual prejudice or at least a reasonable likelihood of prejudice.
[28] The parties have been separated for more than one year. There is no legal basis as set out in section 11 of the Divorce Act that would bar a claim for a divorce in Ontario. Mr. Singh is entitled to move for an Order for Divorce pursuant to Rule 36 of the Family Law Rules.
Costs
[29] Mr. Singh has been the successful party on this motion and is presumptively entitled to his costs pursuant to Rule 24(1) of the Family Law Rules
[30] If the parties are unable to agree on an amount of costs, submissions may be forwarded to my assistant on the following timetable, at Cindy.Martins@ontario.ca
[31] Mr. Singh’s submissions are due by September 30, 2022 Ms. Badwal’s submissions in response are due by October 11, 2022 No reply is permitted
[32] Submissions are limited to three pages exclusive of a Bill of Costs and Offers to Settle. Caselaw is to be hyperlinked within the body of the submission.
McGee J.
DATE: September 20, 2022
COURT FILE NO.: FS-20-98075
DATE: 2022 09 21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Baljinder Singh, Applicant
AND
Kuldip Kaur Badwal, Respondent
COUNSEL: Amal Nayyar, for the Applicant
Jagtesh Singh Chahal, for the Respondent
ENDORSEMENT
McGee J.
DATE: September 20, 2022