Court File and Parties

COURT FILE NO.: FC1002/22 DATE: December 22, 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: December 11, 2023, virtually

Endorsement

[1] This is the return of the applicant's motion to split the divorce claim from the other issues in this case pursuant to r. 12(6).

[2] The motion was before me on October 4, 2023. At that return, the respondent submitted that the granting of a divorce would disadvantage her. The disadvantage she relied upon was that claims she has or wants to make in India would be prejudiced. She submitted that if she were no longer married to the applicant, she could not advance these claims in India. This submission required evidence of foreign law. The evidence then relied upon by the respondent was a letter from a lawyer practicing in India. I held that the letter was not admissible evidence: see Sandhu v. Sandhu, 2023 ONSC 5684. The applicant did not object to the admissibility of the letter relied upon by the respondent. The admissibility issue was raised by me during submissions. In this circumstance, I allowed the respondent time to obtain, if she wished, admissible evidence of foreign law.

[3] The respondent filed and relied upon the affidavit of Retesh Pandey, Advocate, who has practiced in "Hon,ble Punjab Haryana high court" since 1999.

[4] The applicant challenges the admissibility of Mr. Pandey's report because:

1. He describes it as a letter of opinion, not an expert report;

2. The report does not comply with the procedural requirements of r. 22(2); and

3. The affidavit does not meet the test for admissibility of expert evidence.

Letter of Opinion

[5] The Pandey affidavit purports to address the "impact of Foreign Judgment of divorce on litigation pending in India."

[6] Applicant's counsel argued that the affidavit cannot be considered as expert evidence because it only offers an opinion. Accordingly, counsel argued, it is only a letter of opinion which is not the same as an expert’s report.

[7] No authority was provided for this proposition.

[8] With respect, I do not accept this submission. Mr. Pandey, in his capacity as a practicing lawyer in India, provided a report by way of an affidavit that sets out his opinion on the law in India and, in particular, the effect a foreign divorce would have on litigation pending or proposed in India.

[9] The affidavit contains Mr. Pandey's purported expert opinion.

[10] I see no distinction between calling the affidavit a "letter of opinion" or an "expert witness report." Rule 20.2(1) provides that a "litigation expert" means any person engaged for the purpose of litigation to provide expert opinion evidence. The same rule provides that any “participant expert” also provides expert opinion evidence. This wording suggests that there is no difference between calling Mr. Pandey's affidavit a "letter of opinion" or an "expert report."

Compliance with Rule 20.2(2)

[11] The parties agreed that Mr. Pandey was put forward as a litigation expert as that term is defined in r. 20.2(1). He was retained for the purpose of this litigation to provide expert opinion evidence.

[12] There is no evidence that Mr. Pandey acts or has acted for the respondent in the litigation intended or ongoing in India.

[13] As the matter before the court is a motion, I had regard to r. 20.2(15), which provides that the procedural requirements contained in r. 20.2(2) in relation to the admissibility of expert reports at trial apply on a motion for a temporary order under r. 14, subject to any necessary modifications.

[14] Accordingly, the minimum requirements for the receipt of an expert report on a motion set out in r. 20.2(2) must be met. This rule provides as follows:

Expert witness reports

20.2(2) A party who wishes to call a litigation expert as a witness at trial shall, at least six days before the settlement conference, serve on all other parties and file a report signed by the expert and containing, at a minimum, the following:

1. The expert's name, address and area of expertise.

2. The expert's qualifications, including his or her employment and educational experiences in his or her area of expertise.

3. The nature of the opinion being sought and each issue in the case to which the opinion relates.

4. The instructions provided to the expert in relation to the case.

5. The expert's opinion on each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert's own opinion within that range.

6. The expert's reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

iii. a description and explanation of every document or other source of information directly relied on by the expert in forming the opinion.

7. An acknowledgement of expert's duty (Form 20.2) signed by the expert.

[15] Mr. Pandey provided his name and address in the report. He did not address his area of expertise except to the extent of stating that he has practiced in the high courts since 1999.

[16] The qualifications he disclosed are his years in practice in high court. He did not include further particulars of his employment or educational experiences as a lawyer practicing in the high court.

[17] The opinion provided does relate to the issue raised on this motion. He addressed the effect of a foreign divorce judgment upon the respondent's ability to prosecute claims in India.

[18] The instructions provided were not explicitly set out in the affidavit. Reading the affidavit as a whole, it appears that Mr. Pandey was asked to provide a legal opinion concerning the respondent's ability to prosecute claims related to the “matrimonial house” and under the Indian statute titled Prevention of Women from Domestic Violence Act, 2005, if she is divorced from the applicant in Ontario.

[19] Mr. Pandey did provide an opinion as requested.

[20] The affidavit contains reference to a statute and an extract from a case that is relied upon.

[21] An acknowledgement of expert’s duty in Form 20.2 was signed by Mr. Pandey and filed.

[22] Based on the foregoing, I find that the court can consider the affidavit of Mr. Pandey as it complies with the formal or procedural requirements for a litigation expert's report under rr. 20.2(2) and (15).

Is the expert evidence admissible?

[23] Even though the affidavit can be considered as having met the necessary procedural or formal requirements, I must also consider whether it should be admitted in evidence on this motion.

[24] The test for admissibility of expert evidence was comprehensively considered in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. A summary of the admissibility framework contained within the decision as suggested by Professor Dufriamont[^1] is as follows:

Expert evidence is admissible when

1. it meets the threshold requirements of admissibility, which are that

a. the evidence must be logically relevant;

b. the evidence must be necessary to assist the trier of fact;

c. there must be no other exclusionary rule;

d. the expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the duty to the court to provide evidence that is:

i. impartial,

ii. independent and

iii. unbiased; and

e. for opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose;

and

2. it passes scrutiny at the gatekeeper stage, and the trial judge determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as

a. relevance,

b. necessity,

c. reliability, and

d. absence of bias (see para. 54).

[25] An expert must be properly qualified. Mr. Pandey did not set out the details of his qualifications to provide the expert opinion evidence submitted, except to the extent he has practiced in the high court since 1999. A curriculum vitae or evidence of other factors that support his expertise to provide the expert opinion were not provided. The evidence does not disclose his experience in the area of practice other than his years of practice. Mr. Pandey did not provide details of any publications or experience related to the issue before the court. He did not provide any evidence of any other occasions where he was qualified as an expert in Indian law related to the issue that is before the court.

[26] Having regard to the foregoing, I find the evidence does not establish that Mr. Pandey is sufficiently qualified to offer the opinion provided.

[27] Even if he can be considered as qualified, I must have regard to the second stage of the admissibility framework. There is an issue with the reliability of the proposed evidence.

[28] The opinion provided stated that:

“… the grant of the divorce by the Superior Court of Justice – Ontario family Court shall have an adverse effect upon the rights and interest in property and other monetary claims in India… [as they] would depend upon the marital status of [the respondent] and thus, grave prejudice to [the respondent] and the litigation pending before the courts… shall be adversely affected as she would not be able to claim in the matrimonial house situated at Village Mallah in district Gurdaspor nor would claim the monetary rights.”

[29] Concerns about the reliability of the opinion arise because of the following.

[30] The report describes the location of the “matrimonial house” of the respondent in India. The opinion provided is that she would not be able to claim with respect to this matrimonial house if divorced in Ontario. No details of the claim over her own property that would be prejudiced were provided.

[31] If the property is land claimed to be owned by the applicant, no particulars of the claim were provided, nor the legal basis that any claim would be compromised if the parties were divorced.

[32] When the parties married, the respondent was a Canadian citizen, and the applicant was a resident in India. The evidence before the court is that the parties lived together in Canada for over 20 years and never resided together in India.

[33] The report does not explain how the court in India could assume jurisdiction over the parties in relation to a claim under the Prevention of Women from Domestic Violence Act, 2005 when they never lived in that country.

[34] With respect to the domestic violence claim, the report sets out definitions from the Act. Under the Act, a “domestic relationship” includes those “… who live or have, at any point in time, lived together in a shared household when they are related by… marriage…”

[35] In his opinion, Mr. Pandey concluded “[t]hat in order to establish the case of domestic violation it is first and foremost that the parties to the dispute would have the status of married couple residing together…”

[36] Mr. Pandey did not explain why the parties have to be married when the claim is brought. The definition included a description of the parties who “have, at any point in time, lived together.”

[37] Based on a consideration of these factors, I find that the potential helpfulness of the proposed expert evidence is outweighed by the risk of relying upon it when making the decision requested on this motion, namely splitting the divorce from the other issues in the case.

[38] For these reasons, I find the proposed expert evidence is not sufficiently reliable to support the opinion offered.

[39] In Ontario, the respondent’s ability to claim against the applicant for property that he may own or have an interest in, and for damages arising from alleged incidents of family violence in Ontario, can be pursued by former spouses. The splitting of a divorce from the other issues in the case will not, therefore, disadvantage the respondent with respect to these claims.

[40] I find that the applicant has met his onus in establishing that neither spouse will be disadvantaged by an order splitting the divorce from the other issues in this case.

[41] Accordingly, an order shall issue splitting the divorce from the other issues in this case.

[42] At the conclusion of argument of the motion, both counsel agreed that the successful party should be entitled to receive costs of $6,000. The applicant requested that, if successful, he also receive GST on that sum. The respondent requested that the sum be inclusive of GST.

[43] I find that the fair, reasonable and proportionate amount of costs to be paid by the respondent to the applicant on this motion is $6,000 inclusive of all disbursements and applicable taxes.

“Justice B. Tobin”

Justice B. Tobin

Date: December 22, 2023

[^1]: (2015), 18 C.R. 7th 312-313