COURT FILE NO.: FS-22-102767-00
DATE: 2023 01 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jatin Singla (Respondent on the motion) v. Supriya Tayal (Applicant on the motion)
BEFORE: D. E. Harris J.
COUNSEL: Supriya Joshi for the Respondent wife, Applicant on the motion
Saurabh Singhal for the Applicant husband, Respondent on the motion
DATE: December 2, 2022 by Zoom
ENDORSEMENT
[1] This is a motion by the Respondent wife under Rule 25(19)(e) of the Family Law Rules, O. Reg. 114/99 to set aside or, in the alternative, to stay the divorce order of Justice Dennison issued October 27, 2022. The Respondent’s primary submission is that a divorce will prejudice the disposition of a criminal allegation in India involving the husband and the marriage.
[2] I would dismiss the motion.
[3] The parties were wed May 17, 2019 in an arranged marriage in India and, after living together in Canada, separated March 6, 2021. Shortly after separation, on March 16, 2021 criminal proceedings were commenced in India against the Applicant husband and his family alleging harassment and demanding a dowry. The Respondent wife attests in her affidavit that the Applicant and his family were very abusive verbally to her during the marriage. He and his parents were “absconding” from the criminal charges in India despite the fact that both are domiciled in Canada. There is an arrest warrant extant in India on these charges for the husband.
THE divorce proceedings
[4] The wife Respondent had notice of the divorce proceedings brought by the Applicant. On May 26, 2022, she was served with the application by email to her counsel. There was ongoing email correspondence between counsel for the parties with respect to the timing of the filing of the Answer.
[5] There were a number of emails from the wife’s previous counsel promising to file an Answer. The husband’s counsel was accommodating. Finally, after exhibiting a good deal of patience, the date of July 8, 2022 was agreed to for the Answer. This is where the email trail runs out.
[6] An amended application for divorce was served by email on the Respondent wife July 27, 2022 and then filed with the court. A set down for the divorce was filed August 31, 2022. There was still no Answer filed. The order was signed in this court on October 25, 2022 and was issued October 27, 2022. The Respondent in her affidavit recognizes that she was remiss in not ensuring that her counsel filed an Answer on her behalf. She does not allege ineffective assistance of counsel.
[7] No Answer has ever been filed nor was a draft included in the Respondent’s motion materials.
Rule 25(19)(e) of the Family Law Rules
[8] I will reproduce the entirety of the provision permitting the change or the setting aside of an order previously made although it is only ss. e which is in direct issue here:
25(19)Changing Order — Fraud, Mistake, Lack of Notice
The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
(Emphasis added)
[9] On the face of it, what occurred here does not fit into any of these subsections. The order was obtained after notice was given, there was no fraud or mistake and the court addressed all matters that were before it. With reference to ss. e, the provision invoked by the Respondent wife, there was adequate notice in light of the Respondent’s default. There was no legitimate reason put forward that she or her counsel were unable to be present. The Applicant and her counsel simply disappeared from the picture after continually promising an Answer which never materialized.
[10] The Court of Appeal in Gray v. Gray 2017 ONCA 100 at paras. 26-31 in the course of holding that Rule 25(19) of the Family Law Rules encompassed the setting aside of an order, opted for a broad interpretation of this provision. Part of the reason was the unique challenges of litigation involving a family. The Rules are to “provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues”: para. 31, quoting with approval from Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.), at para. 11.
[11] Although there must, consistent with this philosophy, be some flexibility incorporated into application of the Rules, ss. e cannot be stretched to include what happened in this instance.
THE ARGUMENT THAT THE DEFAULT JUDGMENT SHOULD BE SET ASIDE
[12] Several judges have seized upon the characterization of the breadth of Rule 25(19) in Gray in order to read in a residual power additional to the five criteria set out in the provision. In establishing this residual power, the case law has drawn upon the law with respect to setting aside a default judgment in the civil context: see Gray v. Gray, 2017 ONSC 5028 at paras.; E.S.R. v. R.S.C., 2019 ONCJ 381 at paras. 62-70; Benarroch v. Abitbol et al, 2018 ONSC 5964 at paras. 28-31.
[13] These cases have relied on the leading case for setting aside a default judgment in Ontario, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194. In her oral submissions, counsel for the Applicant made reference to the pertinent factors for setting aside a default judgment at paras. 48-49 of Justice Gillese’s reasons in that case,
(a) whether the motion was brought promptly after the defendant learned of the default judgment;
(b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and
(c) whether the facts establish that the defendant has an arguable defence on the merits.
(d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and
(e) the effect of any order the court might make on the overall integrity of the administration of justice.
[14] There factors are cumulative and must be examined together in order to determine whether a case for setting aside has been established. The Mountain View factors, in my view, incline strongly away from the relief sought by the Respondent.
[15] I need not consider in any detail (a) or (b): whether the motion was brought promptly after knowledge of the judgment and whether there was a plausible explanation for the default. These do not appear to align in the Applicant wife’s favour but I will assume for the purpose of these reasons that they have been satisfied.
[16] In my view, (c) through (e) demonstrate that this application ought not to succeed. Counsel for the husband has brought my attention to several British Columbia cases which consider and reject similar arguments as made by the Applicant here: Sohi v. Sohi, 2017 BCSC 678; (M.S.) v. K. (S.K.), 2015 BCSC 2123 at paras. 20-24.
[17] Is there an arguable case on the merits that the divorce ought not to be granted? Arguments against the granting of a divorce are limited. Section 11(1) of the Divorce Act refers to: (1) collusion; (2) adultery, cruelty, condonation or connivance on the part of the applicant spouse; and (3) where there is concern about the support arrangements made for the children. None of these apply.
[18] Is this a case in which a discretion should nonetheless be exercised to refuse the divorce on the grounds that to grant it would prejudice the wife in the Indian criminal litigation? There is a natural concern that without good and sufficient reason, a proceeding in another jurisdiction ought not to stand in the way of the husband’s right to move on with his life and to obtain a divorce. Although there are no doubt situations in which the prejudice is glaring and fairly leads to the result that a divorce ought not to be granted, this is not one of them. The criterion in ss. e with respect to the integrity of the administration of justice is very much at issue.
[19] The evidence that there would be prejudice to the Indian litigation if the divorce order stands is weak and clearly insufficient. The Respondent wife has filed an unsworn letter from her lawyer in India which states (all grammatical and other errors are in the original),
That in Indian law there are various ground for seeking the relief of divorce or other reliefs at the end of the marriage, the major ground is “cruelty” by any spouse to other. This is also very relevant when in cases of dowry. If the divorce will granted by the Canadian court then there is this presumption that Jatin Singla has never done any cruelty to the victim and the FIR registered by the victim will be cancelled or the court can considered the same and discharged against him and his family. Therefore it is requested that they divorce petition kindly be kept pending till the FIR and trail be concluded as per Indian law.
I learned that Canadian Court has issued divorce order on this case without contesting. Our case in India is very close to the final result. If Jatin gets a divorce from the Canadian Court it will have adverse effects on our case in India and might delay it further. I request you to set aside this divorce until decision is taken in India
[20] There are multiple problems. There is no basis for finding that this lawyer is an expert with respect to the pertinent law in India. The letter contains no information upon which to come to such a conclusion nor is there any information about his source or state of knowledge. Clearly the lawyer, as he is acting for the wife, is not independent of the litigation (White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, [2015] S.C.J. No. 23 (S.C.C.)). The opinion is casually presented with no supporting authority or reasoning of any kind. The letter is not under oath or solemn affirmation. Lastly, there is an unsworn letter from the lawyer for the husband in India which disputes the opinion advanced in the Respondent’s letter.
[21] As in the two British Columbia cases relied upon by the husband, the reasons upon which the divorce order is sought to be rescinded or stayed are insubstantial. A mere ghost of prejudice cannot be enough to frustrate the husband's request for a divorce.
[22] The relief requested ought not to be granted. The application is dismissed. Costs will be in favour of the husband in the amount of $2500 all inclusive, to be paid within 30 days.
D. E. Harris J.
DATE: January 27, 2023
COURT FILE NO.: FS-22-102767-00
DATE: 2023 01 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jatin Singla (Respondent on the motion) v. Supriya Tayal (Applicant on the motion)
BEFORE: D. E. Harris J.
COUNSEL: Supriya Joshi, for the Respondent wife, Applicant on the motion
Saurabh Singhal, for the Applicant husband, Respondent on the motion
ENDORSEMENT
D. E. Harris J.
DATE: January 27, 2023