Court File and Parties

COURT FILE NO.: FC1002/22

DATE: October 12, 2023

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Surjit S. Sandhu, Applicant

AND:

Rimpaljit Sandhu, Respondent

BEFORE: TOBIN J.

ATTENDANCE: Parminder Hundal, for the Applicant

Amiteshwar Singh, for the Respondent

HEARD: October 4, 2023, virtually

ENDORSEMENT

[1] The applicant moves pursuant to r. 12(6) for an order splitting his request for a divorce from the other issues in this case.

[2] Rule 12(6) provides as follows:

The court may, on motion, make an order splitting a divorce from the other issues in a case if,

(a) neither spouse will be disadvantaged by the order; and

(b) reasonable arrangements have been made for the support of any children of the marriage.

[3] This rule establishes two preconditions to the making of the order requested. Firstly, neither party will be disadvantaged by the order. Secondly, there must be reasonable arrangements made for the support of any children of the marriage.

[4] The respondent opposes the granting of the relief sought by the applicant. She claims that she will be disadvantaged if a divorce is granted.

[5] The word “disadvantaged” used in r. 12(6) means legal disadvantage: Al-Saati v. Fahmi, [2015] O.J. No. 774, at para. 27 and Zantingh v. Zantingh, 2021 ONSC 2312, at para. 14.

[6] The onus of establishing that no prejudice will result if the divorce is split from the other issues rests with the moving party: Bakmazian v. Iskedjian, 2015 ONSC 7493, at para. 10, and Zantingh, at para. 15.

[7] The disadvantage relied upon by the respondent is that her claims related to the “right of possession interest and ownership of property” held in the applicant’s name “and other monetary claims in India will be prejudiced.” The respondent claims that, under Indian law, if she is divorced in Canada, she will not be able to initiate and continue her property and monetary claims against the applicant in India.

[8] The evidence supporting her claim of prejudice is a copy of an undated letter from her lawyer in India. This letter is signed by Manbir Singh Ghuman, Advocate, Batala. This letter states that:

− The respondent is his client, and she is married to the applicant;

− The lawyer is aware the applicant wants to get a divorce in Canada;

− The respondent has a legal right to a share of property located in India and which is in the applicant’s name;

− The respondent intends to file a case against the applicant and his family members in India to assert her claim;[^1]

− If the applicant succeeds in obtaining a divorce in Canada, the respondent “would be deprived her valuable rights for claiming her share from the [applicant’s] property in India.”

[9] The respondent asks that I find as a fact that, once divorced in Canada, the respondent will be precluded under Indian law from pursuing property and monetary claims in that country.

[10] The applicant argues that the respondent does not have any standing to use foreign property claims to prevent a divorce. He deposes that the law governing property rights of spouses in India states that the respondent does not have any rights to any potential property held in India. He therefore concludes that the granting of a divorce would not impact any potential rights she may have in India.

[11] A finding that the respondent’s ability to pursue property and monetary claims in India if divorced in Canada requires proof of foreign law. When a court requires evidence of foreign law, it is a question of fact to be proved through admissible expert evidence: Lear v. Lear (1974), 1974 CanLII 527 (ON CA), 5 O.R. (2d) 572 (Ont. C.A.), at para. 10; see also Friedl v. Friedl, 2009 BCCA 314 (B.C.C.A.), at para 20.

[12] Judges have a gatekeeping role in determining the admissibility of expert evidence: see White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, at paras. 1 and 20.

[13] The letter relied upon by the respondent is not properly admissible in evidence before the court on this motion. The author did not provide his qualifications to give the opinion provided: White Burgess, at paras. 19 and 23. The letter does not explain how or why the respondent’s rights would be prejudiced if a Canadian divorce order is granted. The letter only contains a conclusory statement to this effect.

[14] In carrying out my gatekeeping role, and because of these deficiencies, I am not satisfied with the reliability of this expert evidence.

[15] The applicant’s assertion regarding Indian law is also not based on admissible expert evidence.

[16] I will observe that if the foreign law is as claimed and was properly before the court, it could constitute the disadvantage contemplated in r. 12(6).

[17] Another concern with the respondent’s expert evidence is how it was put before the court. The expert evidence is contained in a letter that was appended to the affidavit of the respondent as an exhibit. The court is asked to accept the letter for the truth of its contents. It is not proper to attach a letter from a third party to an affidavit to be relied upon in a motion expecting the court to rely upon the truth of its content − without some explanation why it was not possible to obtain a sworn affidavit: see LiSanti v. LiSanti 1990 CanLII 4229 (ON CJ), [1990] O.J. 3092 (Ont. P.C. Fam. Div.), at paras. 4-6, and Chrisjohn v. Hillier, 2021 ONSC 1666, at paras. 13-18.

[18] The respondent also asks that the court use its discretion not to grant the relief sought by the applicant because of the applicant’s failure to provide financial disclosure.

[19] In his affidavit sworn June 16, 2023, the applicant acknowledges that disclosure has not been completed, though he is working on doing so. The applicant also claims that the respondent has failed to provide complete disclosure.

[20] The delay in providing disclosure, in the circumstances of this case where it is being assembled, is not sufficient reason to deny the applicant’s request to split the divorce from the other issues in this case. The respondent did not identify any issues related to disclosure that would be affected if a divorce is granted.

[21] I would not give effect to this ground advanced by the respondent.

[22] The second precondition must also be addressed.

[23] The parties are the parents of one child who is now 19 years old. According to the respondent, the child is independent and works full time. The applicant acknowledges that the child is working but states that he is dependent. The applicant is providing for the child.

[24] Having regard to the respondent’s financial statement sworn December 16, 2022, her income is below the threshold established by the Child Support Guidelines that would require her to pay child support.

[25] In these circumstances, I find that there are reasonable arrangements in place for the support of the child. The applicant is providing for him, and the respondent does not have the income required for her to provide child support.

[26] The foregoing analysis does not end the court’s consideration of the applicant’s request and the respondent’s opposition.

[27] The applicant did not object to the admissibility of the respondent’s expert evidence in her factum or submissions. This issue was raised by the court during argument. I rely on r. 2 (2)-(4), which requires the court to deal with cases justly. In order to deal with this case justly, a brief adjournment of the motion will be granted to allow the respondent time to obtain and present admissible expert evidence of Indian law as it pertains to a potential legal disadvantage to the respondent if divorce is granted in Canada. The applicant will have the opportunity to do the same.

[28] The motion is adjourned to November 14, 2023 at 9:00 a.m. before this court, by videoconference, to address whether admissible expert evidence has been filed and, if so, its effect on the issues raised in this motion.

“Justice Barry Tobin”

Justice B. Tobin

Date: October 12, 2023

[^1]: In a second letter, the respondent’s lawyer in India states that the respondent has started a proceeding in that country.