COURT FILE NO.: FS-22-00029812-0000
DATE: 20240531
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HARGOBIND SINGH
Applicant
– and –
KAREENA SANDHU
Respondent
In person
Preet Kaler/Vic Sehdev, for the Respondent
HEARD: February 27, 2024
a.p. ramsay j.
I. Overview
[1] The parties were married in India. They had a short marriage. They have no children. The respondent wife, a Canadian citizen by birth, lived in India her entire life. Both parties had had several visits to Canada while they were married. On one of those visits, the parties bought a condo unit in Toronto which was used as an investment property. The parties resided in India after the marriage. The parties intended to move to Canada to live but the pandemic interrupted those plans. The applicant husband nonetheless pursued and obtained his landed immigrant status and, while still in India, filed for divorce in Ontario and claimed corollary relief under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, c.F.3. The longest period that either of the parties had been in Ontario at any time before the divorce application was filed was a little over six months. The respondent wife initiated proceedings in India for divorce and spousal support a month after the applicant commenced his application in Ontario.
[2] The respondent moves for an order declaring that the Ontario Superior Court of Justice does not have jurisdiction under the Divorce Act, or in the alternative, an order that Ontario is not a convenient forum. In the alternative, the respondent seeks an order limiting the court’s jurisdiction to the issue of ownership and possession of real property located in Toronto and determination of equalization of net family property under the Family Law Act.
II. The Issues
[3] The issues on this motion are as follows:
i. Whether the court in Ontario has jurisdiction under the Divorce Act;
ii. Whether the respondent attorned to the jurisdiction in Ontario and the proceedings ought to continue;
iii. Whether these proceedings ought to be stayed given the competing proceedings in India;
iv. If Ontario has jurisdiction, whether Ontario is the most appropriate forum to hear the divorce proceedings; and
v. If the court has no jurisdiction to determine divorce, does the court nonetheless have jurisdiction to determine the collateral matters?
III. Preliminary Matters
Motion to strike applicant’s affidavit
[4] At the outset of the motion, counsel for the respondent indicated that the applicant was in breach of the January 26, 2024 cost order of Kraft J. in the amount of $932.25. Counsel for the respondent suggested that the court exercise its jurisdiction under r. 1(8) of the Family Law Rules, O. Reg. 114/99, to strike the applicant’s affidavit, with the motion proceeding unopposed, or alternatively any other order the court considers just as contemplated by that subrule.
[5] I am declining to deal with the applicant’s breach of the costs order in the context of this motion as procedural fairness requires that notice be given to the applicant to address the matter.
Reference to settlement discussions in applicant’s affidavit
[6] The applicant’s affidavit was only uploaded to CaseLines at 10:41 p.m. the night before the motion was heard. The respondent objected to a number of paragraphs in the affidavit, which included without-prejudice settlement discussions or reference to settlement negotiations or discussions at various case conferences. The respondent asked the court to strike paragraphs 29, 31, 40, 55, 91, and portions of paragraph 93.
[7] After hearing submissions from the applicant, and counsel for the respondent, I make the following disposition with respect to the challenged paragraphs:
i. paragraph 29 of the affidavit is struck;
ii. paragraph 31 of the affidavit is struck;
iii. paragraph 40 of the affidavit is struck;
iv. the second last sentence of paragraph 55 is struck;
v. while paragraph 91 does refer to discussions at the case conference before Vella J., the reference is innocuous; the applicant merely states an issue was not raised at conference; and
vi. I do not find that any portion of paragraph 93 contains without-prejudice discussions.
[8] As the affidavit has already been filed, it is difficult to direct that those paragraphs should not form part of the continuing record.
[9] Finally, counsel for the respondent argued that the applicant’s factum included information that was not in evidence before the court. The court is mindful that the applicant is representing himself, and to the extent that that has occurred, the court has not relied upon the information as a basis for its decision.
IV. The Pleadings
[10] The application was issued on June 14, 2022. The applicant signed the application, electronically, at 23:26 GMT +5.5. The applicant’s lawyer, Stephanie Tadeo signed the application on June 14, 2022, at 13:59 EDT.
[11] In his application, the applicant sought a divorce, equalization of net family properties, exclusive possession of the matrimonial home, the freezing of assets, and the sale of family property. He sought a declaration that the property located at 12 York St. (the “York Porperty”) was the matrimonial home of the parties, or in the alternative that the respondent held a 100-percent interest in the Property in trust for him by way of resulting trust, or, alternatively, damages for unjust enrichment, and an order vesting ownership of the Property in his name.
V. Background
[12] The parties married in November 2017 at Chandigarh, India, pursuant to the Hindu Marriage Act, 1955. After they married, the parties resided with the applicant’s parents in India at House Number XXX, Sector XXX A, Chandigarh, India. Both parties acknowledge that this was their matrimonial home.
[13] The parties visited Ontario in 2019. The respondent remained in Ontario for less than six months. In October 2019, the respondent purchased the York Property. The property was placed on AirBnB as a rental. The parties have never resided together in the Property. At the time the York Property was purchased, the applicant was not a resident of Canada. At paragraph 9 of his application, the applicant states in part that “[a]t the time the property closed, the parties had already returned to India. They decided to place the unit on short-term rent until they returned to Canada.”
[14] In his application, the applicant says that the parties were to return to Canada in 2020 but as a result of the pandemic, they postponed their move until 2021.
[15] The applicant returned to Canada on April 30, 2021. He became a landed immigrant on the same date (April 30, 2021).
[16] He returned to India on November 9, 2021. At paragraph 13 of his application, the applicant says: “The Applicant Husband returned to India on November 9, 2021 and made last efforts to reconcile with the Respondent Wife. The efforts were unsuccessful, and the parties separated for good.”
[17] In February 2022, the respondent initiated criminal proceedings against the applicant in India, alleging abuse.. With respect to these proceedings, the applicant says the respondent and her father “appeared to be engaging in a concerted effort to deplete my financial and mental resources with the uncalled-for criminal complaint in India which was lodged post separation and given the respondent was already the owner of the apartment in Canada at the time and was very well secured financially” (emphasis in original).
[18] In March 2022, the respondent commenced civil proceedings against the applicant in India.
[19] On June 27, 2022, the applicant returned to Canada. Prior to his return, while still in India, he commenced the application for divorce and corollary relief. The application was issued on June 22, 2022. It stated that the applicant had been habitually resident in Ontario for at least one year immediately preceding the date of the claim and that the applicant “has been a permanent resident since April 30, 2021 and considers Canada his home since April 2021.” On July 15, 2022, the respondent filed an application for divorce and maintenance (support) in India.
[20] On questioning, the applicant admitted that during the entire marriage, he and the respondent resided in Chandigarh, India.
[21] The applicant pleads, at paragraph 15 of his application: “He has been a permanent resident since April 30, 2021 and considers Canada his home since April 2021.” That is incorrect. The applicant came back to Canada on April 30, 2021, to obtain his landed immigrant status. He remained in Canada until November 8, 2021. He returned to India and says he was prevented from leaving India by the respondent’s father, a member of the police in Kamataka, India, whom he alleges brought false charges against him. Regardless, he returned to Canada on June 27, 2022.
[22] The respondent was born in Canada, where her mother was visiting her aunt at the time. She has lived in India all her life, only visiting Canada on four occasions for short periods of times, the most being a five-month period in 2019 after her marriage. The respondent was educated in India, worked as an engineer in India, and had no intention of living in Canada. Her parents and siblings all live in India.
[23] The applicant says in his application that they separated on May 1, 2021. The respondent says the parties separated in December 2021.
VI. Disposition
[24] For the reasons below, the motion is granted staying the application and any claim for corollary relief either under the Divorce Act or the Family Law Act.
VII. Analysis
i. The parties had not been living separate and apart for at least one year.
[25] The respondent disputes that the parties had been living separate and apart for at least one year immediately preceding the commencement of the Ontario divorce application, which is the only ground relied upon by the applicant to establish a breakdown of the marriage pursuant to s. 8(2)(a) of the Divorce Act. The intention of either of the spouses to live separate and apart is an important factor, and though the spouses may resume cohabitation for the purpose of reconciliation, in calculating the period of separation, those periods cannot exceed more than 90 days, pursuant to s. 8(3).
[26] The applicant indicates in his application that the spouses lived separate and apart since May 1, 2021. He also indicates that they had lived together again from November 9, 2021, to December 4, 2021, in an unsuccessful attempt to reconcile.
[27] The respondent disputes the May 1, 2021 date of separation, which is the day after the applicant obtained his landed status in Canada. The respondent says the parties separated on December 3, 2021. She submits that the purpose of the applicant’s trip to Canada was to obtain his landed status. She says that during this time, from April 30, 2021 to November 9, 2021, he stayed in the York Property until he returned to India. The respondent argues that after he returned to India, the parties continued to live together with his parents.
[28] On the materials before the court, the proceedings commenced by the applicant himself in India corroborates the respondent’s evidence regarding the date of separation and contradicts what is set out in his application.
[29] In the Civil Writ Petition in the Punjab and Haryana High Court, India, initiated by the applicant in India on March 7, 2022, the applicant pleads: “Respondent No. 6 left the matrimonial house on 01.12.21 for her grandmother’s house in Chandigarh, and from thereon, seems to have proceeded to Bengaluru, where her father is currently holding the post of Director General of Police (CID), Karnataka”. Indeed, the allegations in paragraphs 11-13 of his own application also support a later separation. They read:
In April 2021, the Applicant Husband received his permanent residency and travelled to Canada ahead of the Respondent Wife. He lived in the property. The plan was for the Respondent Wife to travel to Canada shortly after him but she decided not to travel due to the surge of COVID-19 cases in India.
The Respondent Wife decided to live with her parents in May 2021 instead of reuniting with the Applicant Husband. At this time, they were already experiencing some marital problems. While the Applicant Husband was in Canada, they tried to work through their issues through telephone and video calls but to no avail.
The Applicant Husband returned to India on November 9, 2021 and made last efforts to reconcile with the Respondent Wife. The efforts were unsuccessful and the parties separated for good.
[Emphasis added.]
[30] The applicant’s statements, tantamount to admissions, in two separate pleadings in two separate countries, do not support a May 1, 2021 separation date; rather, they support a date as late as November 2021, based on his Ontario pleading, or December 2021, based on his pleading in India. In his affidavit sworn in response to the respondent’s motion, the applicant deposes at paragraph 22 of his affidavit: “There has been a complete breakdown of the marriage since December 3, 2021, and I have not physically seen the respondent since December 3, 2021, except for a case conference on July 10, 2023, and a settlement conference on February 24, 2023, here in Canada.” In his factum, the applicant reiterated that the complete breakdown of his marriage was December 3, 2021.
[31] Therefore, at the time the applicant commenced his application in Ontario, the statutory requirement for a breakdown of the marriage had not been met. Indeed, at the time the respondent commenced her proceeding in India a month later, this requirement had still not been met.
ii. Jurisdiction
[32] The jurisdictional competence of the court to deal with divorce proceedings or for certain corollary relief is contained in sections 3 to 6 of the Divorce Act.
[33] The applicant argues that this court has jurisdiction to hear and determine these proceedings by virtue of s. 3(1) of the Divorce Act. In his application for divorce, he indicates in the Application that he had been a resident of Toronto, Ontario since April 30, 2021 and that the respondent had been a resident of Toronto, Ontario since October 2019. Essentially, that the parties had been habitually resident in Ontario for more than a year immediately before the application was filed.
[34] The respondent says the applicant was residing in India at the time the application was commenced, a fact conceded by the applicant. He was in fact on his way to Canada when he signed the application electronically.
[35] Section 3(1) of the Divorce Act requires that either of the parties must have been habitually resident in the province for at least one year immediately prior to the proceedings commencing. The provision reads:
Jurisdiction in divorce proceedings
3 (1) 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.
[36] Whether either party was ordinarily resident in Ontario for at least one year prior to the issuance of the application is a factual issue.
[37] Effective March 1, 2021, amendments to the Divorce Act included replacing the term “ordinarily resident” with “habitual resident”. In Simpson-Campbell v. Stark-Campbell, 2022 ONSC 5481 (Ont. S.C.J.), at para. 20, Steele J. referred to the Department of Justice’s explanation for this amendment, which acknowledged that the case law indicated there was no practical difference in meaning between “ordinarily resident” and “habitually resident”.[^1] The term “ordinary resident” has been defined as the place where one is“in the settled routine of his life he regularly, normally or customarily lives”, as opposed to the place where one “unusually, casually or intermittently visits or stays”: see Thomson v. Minister of National Revenue, 1946 CanLII 1 (SCC), [1946] S.C.R. 209, at p.p. 231 -232, per Estey J.; MacPherson v. MacPherson (1976), 1976 CanLII 854 (ON CA), 28 RFL 106 at 112 (CA).
[38] A person’s intention is an important consideration, but intention alone cannot determine residency: MacPherson, at p. 239; Wang v. Lin (2013), ONCA 33, at para. 42.
[39] The applicant admits in his application that he was a non-resident in October 2019 when he says the parties purchased the York Property in Toronto. He says the parties had returned to India by the time the property closed. By the applicant’s own evidence, he landed in Toronto on April 30, 2021. He became a landed immigrant on that day. He remained in Canada a little over six months, departing for India on November 9, 2021. The applicant’s materials note that he next returned to Canada on June 27, 2022, though the application was issued on June 14, 2022, while he was still in India.
[40] The applicant places great weight on his immigrant status. He states in his application: “The Applicant Husband is now returning to Canada on June 20, 222. He has been a permanent resident since April 30, 2021 and considers Canada his home since April 2021.” In contrast, the respondent places a great deal of importance on the various addresses in India noted on official documents.
[41] In Jenkins v. Jenkins (2000), 2000 CanLII 22523 (ON SC), 8 R.F.L. (5th) 96, [2000] O.J. No. 1631 (ON SC), Perkins J. dealt with the court’s jurisdiction under s. 3(1) of the Divorce Act with the former “ordinary resident” language. Justice Perkins noted that ordinary residence as viewed by the case law is a question of fact, not dependent on citizenship, domicile or even immigration status: at para 15.
[42] Moreover, in his civil materials filed in India in March 2022, and three months before commencing the application in Canada, the applicant notes this address to be House Number XXX, Sector XXX, Chandigarh, India, and indicates it is the usual place of residence for the parties. He further notes, at paragraph 3(a): “It may not be out of place to mention that the usual place of residence of both husband and wife is Chandigarh, wherein each of them own houses. The proof of Respondent No. 6/Complaint is annexed herewith…”. The applicant further insists that the Indian property is the matrimonial home. His Indian Identity Card bears that address.
[43] The applicant stated in his application that he had been a resident in Toronto since April 30, 2021. This was not true. During oral submissions he conceded that he had not resided in Canada for at least a year prior to filing his divorce application or at any point. At the time the application was commenced, the most time the applicant had spent in Canada was a little over six months.
[44] The applicant indicated in his application that the respondent had been a resident in Toronto since October 2019. This too was not true. The respondent had never been a resident of Toronto at the time the application was commenced, nor had she lived in Canada. She had only visited the country for brief periods and was last in Ontario in 2019, before the pandemic.
[45] I have concluded that Ontario does not have jurisdiction as neither the applicant nor the respondent had been habitually resident in Ontario one year immediately prior to the filing of the application as required by s. 3(1) of the Divorce Act.
iii. Corollary relief
[46] The Ontario court does not have jurisdiction to address the claims for corollary relief advanced under the Divorce Act. However, the nature of the “corollary relief” that can be advanced under the Divorce Act, is restricted, as defined in the Act, to a proceeding by a spouse or former spouse for child support, spousal support, or parenting order. Leaving aside the issues raised by the applicant, addressed below, of attornment and appropriate forum, as noted above, the applicant also advanced claims for corollary relief in his Application, as did the respondent in her Answer.
[47] Section 4(1) of the Divorce Act reads:
A court in a province has jurisdiction to hear and determine a corollary relief proceeding if
a) Either former spouse is habitually resident in the province at the commencement of the proceeding; or
b) Both former spouses accept the jurisdiction of the court. [Emphasis added]
[48] The applicant concedes that he was not in Canada at the time the application was commenced and was not habitually resident in the province of Ontario. As the applicant acknowledged, he had returned to India in November 2021, intended to return but did not, though he blames the criminal proceedings brought against him in India, until June 2022. By his own admission, he was not in Ontario when the Application was started.
[49] Accordingly, since neither party was “habitually resident” at the time of the commencement of the applicant’s divorce application, the court would not have had jurisdiction to deal with any order for corollary relief under the Divorce Act. However, both parties advanced claims relating to property including an equalization of net family property under the Family Law Act. In my view, the parties did not meet the test under s. 15 of the Family Law Act, on the facts of this case, to pursue claims for corollary relief under that Act, at the time the application was commenced. The law of the place where the parties had a common habitual residence would apply. On the uncontested evidence before me, both parties last known habitual residence was India and the Family Law Act, addresses the conflicts of laws in this case.
[50] As noted in Wang, at para. 22, the the Family Law Act FLA does address what laws are to be applied in the event of a conflict:
Conflict of laws
15 The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario.
[51] As noted by Kristjanson J. in Doersam v. Doersam, 2022 ONSC 4095, in commenting on s. 15 of the Family Law Act, the property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario. On the materials before me, including the applicant’s own admissions in his pleadings and during oral submissions, the last common habitual residence of the parties is India. As a result, even if the matter were to be heard in Ontario, property claims are governed by the law of India because of s. 15 of the Family Law Act.
iv. Multiple proceedings in two different jurisdictions
[52] The applicant says that the divorce can be severed, and he can pursue corollary relief in Ontario. He also argues that he may simply start a new application. The issue the applicant faces is that the respondent divorce and support proceedings, commenced in India at a time when the court in Ontario had no jurisdiction.
[53] The Divorce Act does not contain any provision to address competing proceedings in a Canadian province and a foreign proceeding. On the materials before me, it appears that India is also an appropriate and convenient forum to determine the issues arising from their marital breakdown. Generally, parties are not prevented from pursuing foreign proceeding which are not oppressive or vexatious. In this case, the respondent has a proceeding in India for divorce and spousal support commenced at a time before the court in Ontario had jurisdiction under the Divorce Act or the Family Law Act.
[54] On July 15, 2022, the respondent commenced an Application for Divorce and Maintenance, bearing Matrimonial Case No. 367/2022 in India. At the time the respondent's proceeding was commenced, neither party had been habitually resident in Ontario for at least one year prior. Additionally, at the time the respondent commenced her application for divorce in India, the parties had only lived separate and apart for seven months. The applicant does not challenge that the court in India had jurisdiction to hear the divorce proceeding. Those proceedings, having therefore been validly commenced.
[55] The applicant disputes that he has participated in the proceeding in India. He submits that he has not delivered any reply. In contrast, the respondent says that the case has preceded up to the Supreme Court of India, which she says is the highest court of law in India.
[56] Although I need not determine this issue, the evidence suggests otherwise. The applicant concedes that he participated in a mediation in India, though he describes it as a “private” mediation. The evidence by the respondent that in June 2023, there was a meeting between all parties, their lawyers and the mediator, is unchallenged by the applicant.
[57] The respondent argues the applicant did not dispute the jurisdiction of the courts in India. She says the applicant has attorned to the jurisdiction of the Indian courts in the matter of the matrimonial case and pointed out that he asked the court to transfer her application. The respondent says on April 6, 2023, the Supreme Court of India appointed a mediator to assist the parties in resolving their issues.
[58] During oral submissions, the applicant argued that the respondent’s application in India only deals with divorce and submits that “maintenance” means costs. He deposes in his affidavit that “[t]he only application on record in India is a divorce application.” This assertion is belied by the evidence before me, which is unchallenged, except for submissions by the applicant. The pleading itself indicates otherwise. The writ also notes:
Relief: To order respondent to pay the petition a sum of Rs 5,00,00/-towards the legal expenses incurred by her in this proceedings and an interim maintenance of Rs. 5,00,000/-p.m. during the pendency of this case.”
[59] The applicant’s position is not only belied by the separate reference to “legal expenses” and “interim maintenance” but also by the affidavit of the respondent filed in those proceedings. In her affidavit, the respondent deposed that she has been residing with her parents since “03.12.21”. She deposed that she had “no source of income of my own. I am depending entirely on my parents for my livelihood and day to day expenses”. She deposed that the applicant “is running a four star hotel is (sic) is running in the name of Hotel Sunbeam Premium….”. She went on to state in her affidavit sworn July 14, 2022:
I submit that I was working in a Multi National Company prior to my marriage and after the marriage the respondent have forced me to quit my job and thereby ruined my carrier (sic). Now after gap of more than five years, due to change in the technology I am not able to get a job and as such I am depending entirely on my parents for livelihood and also for day to day expenses. Hence I have filed the accompanying application.
I submit that as the respondent is earning more than Rs. 15,00,000/- per month, he is capable of paying an interim maintenance of Rs. 5,00,000/-per month to me.”
[60] The applicant also argues that he obtained a stay of the divorce proceedings in India on February 20, 2023. This assertion is contradicted by the materials before me. In fact, there is evidence before the court, unchallenged by the applicant, that in August 2023, the court-appointed mediator in India asked the parties to stay the proceedings in Canada. On December 4, 2023, the Supreme Court of India transferred the respondent’s Application for Divorce and Maintenance to New Delhi. I am satisfied that the proceeding in India is pending as the respondent asserts.
[61] The only evidence of a “request” for a stay is in an unknown proceeding. There is no order staying the divorce proceedings in India before me. What is before the court is a document entitled “Application For Stay of Proceedings” dated February 16, 2023, with a title of proceedings indicating it was between the applicant, as the petitioner/applicant and the respondent as the respondent in that proceeding. There is no court file number on the document. The document indicates that the applicant was:
seeking transfer of the Divorce Case filed by Respondent – Kareena Sandhu under Section 139ia) of the Hindu Marriage Act, bearing M.C. No. 367 of 2022 pending adjudication before the Ld. Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru before the Ld. Court of competent jurisdiction at Chandigarh or at any neutral place that may be determined by this Hon’ble Court in the interest of justice.
[62] The document went on to state:
In the facts and circumstances above mentioned, the Petitioner most respectfully prays that this Hon’ble Court may be graciously pleased to:
Allow the present application and grant an ex-parte and interim stay if the proceedings in the case titled ‘Kareena Sandhu Versus Hargobind Singh Gill’, being M.C. No. 367 of 2022, pending adjudication before the Ld. Principal Senior Civil Judge, Bengaluru till the final disposal of the present Transfer Petition; and….
v. Attornment
[63] The respondent delivered an Answer to the Ontario application on or about October 21, 2022. In it, she contested the jurisdiction of the court in Ontario to hear the issue of divorce. She also advanced her own claims seeking remedies with real property that she owned in Toronto, including a declaration that it was not a matrimonial home, a claim for damages, and seeking an order for the equalization of net family property.
[64] The applicant submits that the respondent attorned to the jurisdiction of Ontario. The respondent submits that she was forced to seek the court’s assistance as the applicant was illegally residing in the York Property.
[65] A party may attorn to a foreign court’s jurisdiction by participating in court proceedings.
[66] A foreign party who voluntarily engages on the merits of the litigation may be taken to have attorned to the court’s jurisdiction and will be precluded from disputing jurisdiction simpliciter: M.J. Jones Inc. v. Kingsway General Insurance Co. (2004), 2004 CanLII 6211 (ON CA), 72 O.R. (3d) 68 (C.A.), at para. 19.
[67] A foreign party who appears in court and goes beyond challenging jurisdiction simpliciter and forum non conveniens will be taken as appearing voluntarily and giving the court consent-based jurisdiction: Mid-Ohio Imported Car Co. v. Tri K Investments Ltd. (1995), 1995 CanLII 2084 (BC CA), 129 D.L.R. (4th) 181 (B.C. C.A.); Wolfe v. Pickar (2011) ONCA 347, 2011 ONCA 347, 332 D.L.R. (4th) 157, at para. 44; M.J. Jones Inc. v. Kingsway General Insurance Co. (2004), 2004 CanLII 6211 (ON CA), 72 O.R. (3d) 68 (C.A.), at para. 19; Van Damme v. Gelber, 2013 ONCA 388.
[68] A foreign party to a litigation is precluded from contemporaneously disputing jurisdiction simpliciter while defending the merits: M.J. Jones Inc., supra at para. 20.
[69] Court-ordered participation in a proceeding, without engaging in additional steps, does not amount to attornment to the jurisdiction: M.J. Jones Inc. at para. 23.
[70] A party’s motion challenging the jurisdiction of the court, filing of a defence, and conducting discoveries may not amount to attornment: M.J. Jones Inc., at paras. 18-31 (per Lang J.A., in Chambers.)
[71] In this case, the respondent participated in case conferences and brought this motion, at all times challenging the jurisdiction of the court. However, I note that she not only advanced claims for property and a claim for the equalization payment in her Answer, but also consented to filing her pleadings and financial statements, without tax returns, at one of those case conferences. In my view, the consent order and the advancing of her own claim in her Answer would suggest, at first blush, that the court had jurisdiction simpliciter over this matter.
[72] However, at the time the respondent filed her Answer in October 2022, the court in Ontario had no jurisdiction to hear or grant the relief sought by the applicant, as neither spouse had met the time requirement under the Divorce Act for being “habitually resident” in Ontario for at least one year before the application was filed. Under s.2(1) of the Divorce Act, “competent authority” is defined as:
competent authority means, except as otherwise provided, a tribunal or other entity in a country other than Canada, or a subdivision of such a country, that has the authority to make a decision under their law respecting any subject matter that could be dealt with under this Act;
[73] Jurisdiction is fundamental to a court or tribunal's authority to deal with a matter: J.N. v. Durham Regional Police Service (2012), ONCA 428, at para. 2. There can be no attornment if the court does not have jurisdiction to determine the issue in the first place. Parties cannot confer jurisdiction if a court does not have it: J.N. v. Durham Regional Police Service; 1819472 Ontario Corp. v. John Barrett General Contractors Limited, 2024 ONCA 333; 650971 Ontario Inc. v. Shameti, 2022 ONCA 62, at para. 7. The Court of Appeal of Ontario has stated that jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily: see N.(J.) v. Durham Regional Police Service, supra; McArthur v. Canada (A.G.), 2008 ONCA 892, 94 O.R. (3d) 19, at para. 3, aff'd 2010 SCC 63, [2010] 3 S.C.R. 626; Rothgiesser v. Rothgiesser (2000), 2000 CanLII 1153 (ON CA), 46 O.R. (3d) 577 (C.A.), at paras. 18-19 and 33-39.
[74] The Supreme Court of Canada defines a “court of competent jurisdiction” as one that possesses: (1) jurisdiction over the person; (2) jurisdiction over the subject matter; and (3) jurisdiction to grant the remedy: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 890; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 SCR 575. In this case, at the time the respondent filed her own proceeding for divorce and support in India, and also at the time the delivered her Answer, claiming collateral relief, the court in Ontario had no authority to make a decision under the Divorce Act with respect to the issues raised by the applicant in the proceeding under the Act. Similarly, both parties last common habitual residence before the divorce proceeding was commenced was Indian, and, in the result, the law of India would govern the parties’ property rights: see s. 15 of the Family Law Act.
[75] Therefore, on the facts of this case, the respondent could not have attorned to the jurisdiction of Ontario at the time her Answer was delivered as Ontario had no jurisdiction to deal with the proceedings under the Divorce Act. As for the claim for the property claims under the Family Law Act, the conflict of law provisions in the Family Law Act dictates that on the facts of this case, the parties’ property issues should be determined by the internal law of India. That is where the parties last common last common habitual residence.
[76] The court notes that the respondent did participate in case conferences and took certain steps in the litigation because of court’s direction. On her own initiative though she brought a motion to have the applicant vacate the York Street property, which the parties disputed was “a matrimonial home”. By doing so, she implicitly accepted that Ontario may deal with the York Street property. I am not convinced however that the parties rights in the York Street property, if any, should not be determined in the context of the proceedings in India as contemplated by s. 15 of the Family Law Act. It makes no sense for the parties to be potentially involved in multiple proceedings. For the reasons below, I am satisfied that India would be the most appropriate forum and any collateral proceedings with respect to property should be stayed in Ontario pending a determination of the property issues in India. The parties are, of course, at liberty to consent to having the property issues in the York Street property dealt with in Ontario.
vi. Is Ontario the appropriate forum?
[77] In my view, if Ontario has no jurisdiction under the Divorce Act, there is no need to consider whether Ontario was an appropriate forum. On the facts of this case, s. 15 of the Family Law Act dictates that the property issues of the parties should be determined in India. The doctrine of forum non conveniens only applies after it is established that Ontario has jurisdiction.
[78] However, if I am wrong and Ontario does have jurisdiction simpliciter over the case, if there is a real and substantial connection between the forum and the subject matter or the parties to the dispute, the court should decline to exercise jurisdiction on the grounds of forum non conveniens because India would be the more appropriate forum.
[79] The burden is on the respondent to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the applicant. She has met the burden here.
[80] Absent a statutory rule, an Ontario court may take jurisdiction simpliciter over a case if there is a real and substantial connection between the forum and the subject matter or the parties to the dispute: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572. In the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda, which was in the context of a tort case. In Wang v. Lin, the CA noted that “.” Accepting the ‘real home’ or ‘ordinary residence’ as a presumptive connecting factor”: Wang v Lin. As stated above, the “habitual residence” of the parties at the time the application for divorce was filed was India.
[81] The applicant now lives and works in Toronto. He says the respondent has been living in Toronto since April 2022 and has had a full-time job since July 2022. The applicant says he is advancing a trust claim in respect of the York Property in Toronto. However, property claims are determined by where the parties were last habitually resident: Doersam v. Doersam, 2022 ONSC 4095. The fact that the applicant is pursuing a trust claim interest in a single property in Ontario is not sufficient to make Ontario the most appropriate forum: see Li v Li, 2021 ONCA 669.
[82] In addition, the respondent has a competing proceeding for divorce and support. That proceeding is further ahead in the process, the parties having participated in mediation, private or otherwise. The respondent has provided her list of witnesses who will testify in the divorce and maintenance case. There is, she says, domestic abuse and she has witnesses who will testify.
[83] Most of the parties’ assets are in India. The respondent says the applicant and his family own a hotel in India. She says the applicant owns 25.46 percent of the shares of Sunbeam Premium Private Limited in India and is one of two directors of the company. The respondent says in March 2022, the applicant transferred his shares to his mother. Though there is contradictory evidence as to what assets the parties have in India, the applicant does depose that he has some bank accounts in India. He says he has no other assets in India. The court is not able to make any findings as to what assets the applicant has in India save for the bank accounts, but in this case, the court need not make such a finding. For the reasons stated elsewhere, India has jurisdiction as dictated by s. 15 of the Family Law Act, to deal with the property issues of the parties.
[84] There is a real risk of inconsistent judgments in the two jurisdictions. The respondent lived her entire life in India, as did the applicant before moving to Canada less than three years ago. Canada will recognize and enforce a judgment in India. The court has jurisdiction to enforce rights affecting land in foreign countries if these rights are based on contract, trust, or equity, and the defendant resides in Canada: Rees v. Shannon, 2020 ONSC 3633, at para. 42; Catania v. Giannattasio, (1999), 1999 CanLII 1930 (ON CA), 118 O.A.C. 330 (C.A.).
vii. Delay in challenging jurisdiction
[85] I would dismiss the applicant’s argument that delay in this case is fatal to the respondent’s motion. The motion was originally scheduled for November 28, 2023, and was adjourned, leave having been granted by the court, to permit questioning on the issue of jurisdiction only. The respondent also points to the difficulty in scheduling questioning with the applicant, which he disputes. I am satisfied on the materials before me that the applicant himself has been responsible for significant delay. Indeed, in her endorsement dated November 30, 2023, Kraft J. noted, at para. 18:
It is clear to me that the applicant has taken every opportunity, using the excuse of being a self-represented litigant, to bring motion after motion, by 14B and otherwise, costing the respondent significant legal fees. The respondent has no choice but to have her counsel respond to each of these attempts made by the applicant. The applicant is not happy that the jurisdiction motion is not being heard until February 27, 2024. With judicial resources being scarce, that was the first available long motion date. The applicant has been warned that he cannot bring any further motions before the jurisdiction motion, without leave. He was also warned that if he does not attend the scheduled Questioning on December 19, 2023 or answer the undertakings arising from his Questioning, he may have to appear on a motion brought by the respondent prior to the hearing of the long motion. He appeared to understand that. [Emphasis added.]
VIII. Clean Hands
[86] The respondent argues that the applicant does not come to court with clean hands. She points to the failure of the applicant to pay outstanding costs awards, his submission to the court that it was paid, and his failure to alert the court to the fact that he remedied the situation only after the motion had commenced, after hearing counsel’s submissions. This is not relevant for the court’s determination of the issues to be decided. Counsel for the respondent attempted to raise a number of new issues in reply, which I determined to be unfair to the applicant, who is self-represented, and who would not have an opportunity to respond. In the result, I have declined to address those issues.
IX. Costs
[87] If the parties are not able to agree on costs, I will consider written submissions based on the following schedule:
i. The respondent shall deliver submissions no later than ten (10) days from the date of this Endorsement.
ii. The applicant shall deliver responding submissions no later than ten (10) days thereafter.
iii. There shall be no reply submissions.
iv. The costs submissions, excluding the Costs Outline and any offers to settle, must be no longer than three pages, double-spaced. Reference to cases may be hyperlinked to a free online source.
v. Costs submissions must be forwarded to the Trial Co-Ordinator and also uploaded to CaseLines, by the above deadline.
A.P. Ramsay J.
Released: May 31, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HARGOBIND SINGH
Applicant
– and –
KAREENA SANDHU
Respondent
REASONS FOR JUDGMENT
A.P. Ramsay J.
Released: May 31, 2024
[^1]: Government of Canada, The Divorce Act Changes Explained (2022), online: Government of Canada https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html.