COURT FILE NO.: FS-21-00102171-0000

DATE: 2024-03-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Avinash Bhambhani, Applicant

AND:

Damini Manchanda, Respondent

BEFORE: Madam Justice L.B. Stewart

COUNSEL: Shelly Kalra, for the Applicant

Chaitali Desai, for the Respondent

HEARD: In person, January 10, 2024

Table of Contents

Overview. 2

Materials. 2

Facts and Procedural History. 4

First Motion: Jurisdiction Motion by Respondent: Motion Dismissed. 13

Existence of Jurisdiction. 15

Exercise of Jurisdiction. 19

Second Motion: Enforcement Motion and Request for Child Support 21

Enforcement of Settlement Agreement 22

Temporary Child Support: Future and Retroactive. 26

Third Motion: Dismissal/Adjournment Motion by Respondent 29

Other Issues. 30

Orders Made. 30

Costs. 32

ENDORSEMENT

Overview

[1] This is a protracted, high conflict proceeding. Briefly, the parties immigrated to Canada in 2018 and returned to Canada after a stay in India, which stay was significantly prolonged by the pandemic. The respondent, Ms. Manchanda, started family law proceedings in India in 2020. The applicant, Mr. Bhambhani, started family proceedings in Ontario in 2021. In 2022, the parties reached a settlement of some issues.

[2] There are three motions before the court on this hearing. Broadly speaking, they can be summarized as follows:

a. Ms. Manchanda contends that this court does not have jurisdiction and that all of the family law proceedings should occur in India;

b. Mr. Bhambhani says that Ontario is the proper jurisdiction and asks the court to enforce the settlement reached in 2022;

c. In the alternative, if I find jurisdiction, Ms. Manchanda asks for Mr. Bhambhani’s motion to be adjourned or his application to be dismissed.

Materials

[3] The core materials filed by each party are summarised below. I have not included affidavits of service, pleadings and court decisions from India:

Document

Bhambhani

Manchanda

Notices of Motion

Amended NoM, Nov 15/23

January 2/24

Affidavits

Five affidavits:

1. Nov 28/22

2. Nov 30/22

3. Dec 1/22

4. March 20/23

5. Nov 15/23

Seven affidavits:

1. June 7/22 (legal counsel in India)

2. June 17/22 (M’s father)

3. June 17/22

4. Nov 28/22

5. Nov 30/22

6. Oct 16/23

7. Jan 2/24

Factums

Dec 14/23

January 9/24

Financial Statements

Feb 4/22

Nov 15/23

Nothing in materials

Total pages[^1]

451

553

[4] The late service of two documents requires comment.

a. Ms. Manchanda’s affidavit of January 2, 2024 was accepted for filing by the court but served 2.5 months after the motion materials service deadlines set by the court.

b. Ms. Manchanda’s factum was not filed with the court as it was served at 7:16am on the day of the motion.

[5] While the non-compliance with the Family Law Rules, the Central West Practice Directions and the August 28, 2023 order of this court are disappointing, I considered both the late affidavit and late factum from Ms. Manchanda to ensure that I fully understood the perspective of both parties prior to arriving at a decision on these motions.

Facts and Procedural History

[6] The applicant/ husband/ father is Avinash Bhambhani. The respondent/ wife/ mother is Damini Manchanda.

[7] Marriage: Mr. Bhambhani and Ms. Manchanda married in India on December 21, 2002.

[8] Children: The parties have two children of the marriage:

a. RB, born 2008; and

b. AB, born 2010.

[9] Mr. Bhambhani says that the date of separation is May 18, 2020. Ms. Manchanda says that the date of separation was March, 2020. For the purposes of this motion, I do not need to decide the specific date of separation.

[10] The parties have property interests in India. Although the precise details are disputed, Ms. Manchanda identifies three properties in which Mr. Bhambhani may assert an interest in, although her position is that only one property is truly at issue.

[11] The family emigrated from India to Canada on April 23, 2018. The family was approved for permanent residency prior to landing. Upon arrival, permanent residency was granted, and social insurance numbers issued. Mr. Bhambhani’s affidavit states that the family moved with the intention of living in Canada and becoming citizens. Ms. Manchanda does not dispute this narrative but asserts generally that Mr. Bhambhani has no settled intention to stay in Canada.

[12] Mr. Bhambhani’s evidence is that he travelled to India with the children in May, 2018 to permit them to finish the school year and for him to resign from his employment.

[13] Mr. Bhambhani and the children returned to Canada in October, 2018, at which point the children were enrolled in a public school in Mississauga. Both Mr. Bhambhani and Ms. Manchanda started working in Ontario. His evidence is that the couple opened bank accounts and obtained credit cards.

[14] The family signed a one-year lease on a home in Mississauga. Mr. Bhambhani’s evidence is that the family purchased furniture to furnish the home as they intended to live in Canada permanently.

[15] In September, 2019, Mr. Bhambhani was offered full-time employment with KPMG in Calgary. The salary was better than his Ontario position. Mr. Bhambhani moved to Calgary. Ms. Manchanda and the children joined him in November, 2019. Mr. Bhambhani’s understanding was that he could apply for a transfer back to Toronto with KPMG after one year. The family stored their furniture in Ontario and rented a house in Calgary. The family also financed a car in Calgary on a 16-month term.

[16] The family booked a 15-day trip to India, including return tickets, for March, 2020. They were in India when international flights from that country were put on hold due to Covid-19. The family stayed at the home of Mr. Bhambhani’s father. The children finished the 2019/2020 school year in Calgary via remote schooling.

[17] KPMG told Mr. Bhambhani that he had to return to the office in Calgary on March 18, 2020 or look for another job and KPMG provided three months notice.

[18] In August, 2020, Mr. Bhambhani returned to work for his first Canadian employer, (Supra, in Ontario). He worked remotely from India. He paid his taxes in Canada.

[19] The parties have different positions on separation. Mr. Bhambhani’s evidence is that Ms. Manchanda left the family in May, 2020 with no information as to where she was going. Ms. Manchanda could not be contacted for weeks, despite Mr. Bhambhani and the children attempting to call her. Ms. Manchanda’s narrative is slightly different, indicating that the parties went their separate ways upon arrival in India in March, 2020. As noted above, for the purposes of this motion, it is not necessary that I make finding on the separation date.

[20] In December, 2020, the fathers of the two parties were in communication. Ms. Manchanda’s father demanded a divorce and that Ms. Manchanda receive 50% of the value of the shared home in India. Mr. Bhambhani declined.

[21] Ms. Manchanda returns to Canada: Mr. Bhambhani learned that Ms. Manchanda had left India on an evacuation flight operated by the Canadian government in May, 2020, sold the family’s belongings in Calgary and moved to Toronto.

[22] Ms. Manchanda started family law proceedings in India in December, 2020, while she was living in Canada. There is disagreement between the parties about when these legal proceedings came to the attention of Mr. Bhambhani.

[23] Mr. Bhambhani and the children left India for Canada in September, 2021. Mr. Bhambhani rented a home in Mississauga. The children finished school in India and enrolled in their local Ontario school board for the 2022/2023 and 2023/2024 school years.

[24] Mr. Bhambhani filed this application in the Ontario Superior Court on December 10, 2021.

[25] Ms. Manchanda objected to this court’s jurisdiction as early as April 25, 2022. On that date, the court made a detailed endorsement, timetabling a jurisdiction motion to be argued on September 1, 2022. That date was then adjourned to December 6, 2022. The applicant was also given leave to bring his cross-motion to enforce settlement on the same date.

[26] In late June and early July, 2022, the parties engaged in settlement discussions through counsel. Ms. Manchanda served an offer to settle on June 24, 2022. This offer was to settle the upcoming jurisdiction motion (which was, at that point, scheduled for September 1, 2022).

[27] Mr. Bhambhani served his offer to settle (dated June 27, 2022) on June 28, 2022. Discussions between counsel ensued via email and phone on June 30, 2022. The email exchanges between counsel took place as follows:

Date

Time

From

To

Text

June 30/22

1:11pm

Manchanda counsel

Bhambhani counsel

My client [Ms. Manchanda] accepts your client’s offer to settle on the following terms:

1. The applicant’s equalization claim is withdrawn and both parties will execute releases in respect to no future claims of equalization.

2. There shall be no spousal support payable by either party and both parties will execute releases (Miglin form) for no spousal support.

3. Both parties will execute a separation agreement or a final minutes of settlement containing the settlement reached

Please confirm if the above is agreeable to your client. If the issue of the motion is resolved then either your office or my office can process a 14B Motion for the consent and to vacate the motion date[^2].

July 4/22

12:14pm

Bhambhani counsel

Manchanda counsel

Our client [Mr. Bhambhani] accepts the proposal. We confirm it is as follows:

1. The issues of child support, s.7 expenses, parenting time, decision-making and the Divorce will be addressed in Ontario.

2. The issues of property will be addressed in India. There will be no equalization payment as per the Family Law Act in Ontario.

3. The parties will sign a Miglin release and release spousal support.

4. The parties will enter into a Final Order pertaining to this.

We will send you the documents to sign with your client today. We want this signed ASAP so we can file a 14B motion with the Court to vacate the motion date and have the final order signed[^3]

July 7/22

12:59pm

Manchanda counsel

Bhambhani counsel

“Thank you for your email confirming the agreement. I will try to get the Minutes of Settlement signed today because I am not sure about my client’s availability for today”[^4]

July 7/22

9:29am

Bhambhani counsel

Manchanda counsel

“Can you please provide the Minutes so we can have the consent and draft order signed?”[^5]

July 7/22

2:01pm

Manchanda counsel

Bhambhani counsel

“Yes, I will.”[^6]

July 7/22

2:14pm

Bhambhani counsel

Manchanda counsel

“I confirm that given that we have an agreement in writing we will not be serving our responding affidavit. We will award the minutes and draft order from your office. Please forward those today.”[^7]

July 7/22

2:24pm

Manchanda counsel

Bhambhani counsel

“Yes that is fine. I appreciate you confirming.”[^8]

July 7/22

11:18pm

Manchanda counsel

Bhambhani counsel

Court note: According to Bhambhani affidavit (and unchallenged by Ms. Manchanda), Manchanda’s counsel sent draft MOS. The MOS are appended to the affidavit, but the email is not.[^9]

July 8/22

10:08am

Manchanda counsel

Bhambhani

Counsel

“There has been a development in the High Court proceeding in India. The high court has issued an injunction order against Mr. Bhambhani from proceeding with the Superior Court of Justice application proceeding that is ongoing in Canada. As per the court judgement, Mr. Bhambhani cannot proceed with the application proceeding in Ontario otherwise he will be in breach of a court order. Please confirm when you are available for a phone call as this matter is urgent.”[^10]

July 8/22

12:48 pm

Bhambhani counsel

Manchanda counsel

“My phone line is down with Rogers. Your client has accepted an offer. If she refuses to cooperate I will bring a motion to enforce the agreement. I will call you once my phone is up and running but I trust we will execute the agreement.” [^11]

[28] The injunction was argued in India on July 8, 2022. Mr. Bhambhani had notice of the court date, but his counsel in India did not attend due to the settlement in Canada. Ms. Manchanda’s counsel in India did not advise the court of the settlement. Ms. Manchanda then refused to sign the minutes of settlement.

[29] On December 6, 2022, Ms. Manchanda asked for yet another adjournment of her jurisdiction motion. Mr. Bhambhani wanted to proceed with his enforcement motion but was directed by the court that a long motion date was required.

[30] This long motion was scheduled for January 10, 2024. By endorsement dated August 28, 2023, the court made orders as to filing deadlines for the materials for these motions and ordered that the January 10, 2024 motion date was peremptory to Ms. Manchanda.

[31] The Family Court in Delhi released a decision dated December 1, 2023. The court dismissed both applications filed by Ms. Manchanda and lifted the injunction dated July 8, 2022.

[32] Ms. Manchanda appealed this decision, and The High Court of Delhi at New Delhi issued its reasons on December 19, 2023. The High Court dismissed the appeal. In the decision, it should be noted that the plaintiff/appellant is Ms. Manchanda, and the defendant/respondent is Mr. Bhambhani (the opposite nomenclature of this proceeding). At paragraphs 31 to 34 of the decision, the High Court stated:

31. We agree with the conclusion reached by the Trial Court. None of the parties are currently residing in India. The doctrine of forum conveniens as noted by the Supreme Court in Modi Entertainment Network (supra) would make it clear that the Court in Canada is the appropriate and convenient forum for the parties to pursue their reliefs. The fact that the appellant had filed the suit through a Power of Attorney, without being to India is also an additional factor for us to hold that the Court in Canada is convenient for the respondent to pursue the litigation for divorce and as such, he cannot be restrained from pursuing the same and the Family Court has rightly vacated the interim order and dismissed the application under Order XXXIX Rule 1 and 2 CPC.

32. That apart, even the plea that the appellant would be entitled to a larger relief if she pursues her petition in India neither appeal to us nor can that be a ground to restrain the respondent from pursuing litigation elsewhere.

33. The plea of Ms. Singh that both the parties continue to be citizens of India and the same shall take precedence over their permanent residency status in Canada also does not appeal to us, as the status of the parties as citizens of India has no relation with the litigation initiated by one of the parties in Canada when the other party is also a permanent resident. Moreover, no plea was raised that the Court in Canada is not competent to decide the divorce suit initiated by the respondent.

34. Some submissions were also made with regard to the dismissal of the application under Order XXXIX Rule 2A CPC. The case of the appellant was that there have been multiple breaches of the interim order dated July 8, 2022. We are in complete agreement with the reasoning given by the Family Court in the following manner to dismiss the application:

“Learned counsel for the plaintiff argued that the defendant not only appeared before the Canadian Court to proceed the divorce petition filed by him but he also made the submissions for enforcing the settlement arrived between the parties and the defendant also made submissions before the Canadian Court to convert the purported settlement arrived at between the parties into the Court order and it amounts to violation of interim injunction order dated 08.07.2022. It is not in dispute that the defendant/his counsel appeared before the Canadian Court with the divorce petition on 01.09.2022, 06.12.2022 and thereafter on some more other dates. However, the appearance of the defendant before the Canadian Court in the divorce petition does not amount the violation of interim injunction order dated 08.07.2022. The defendant was restrained only not to proceed with his divorce petition on merit pending before the Canadian Court. The defendant was not restrained by the order dated 08.07.2022 to make efforts for settlement with the plaintiff in the divorce petition pending before the Canadian Court. It is important to mention here that in matrimonial cases the priority of the Courts to encourage and persuade the parties for the amicable settlement of their dispute. The Section 9 of the Family Court Act, 1984 casts a duty on the Family Court to make efforts for amicable settlement of matrimonial disputes. This court also vide order dated 12.01.2023 allowed both the parties to settle the disputes before any forum. Therefore, the appearance of the defendant/his counsel before the Canadian Court and making submissions for settlement of the dispute between the parties do not amount to violation of interim injunction order dated 08.07.2022. Further, learned counsel for the plaintiff contended that this Court allowed vide its order dated 12.01.2023 both the parties to settle the dispute before any forum but such forum was Mediation Centre at Delhi but not the Canadian Court where divorce petition is pending. There is no substance in this contention of the learned counsel for the plaintiff. Both the parties were free to settle their matrimonial disputes at any forum including the Indian Courts and the Canadian Courts. The plaintiff has not brought anything on record to show that the divorce petition filed by the defendant before the Canadian Court was proceeded on merit at the instance of the defendant. It is also pertinent to mention here that the counsel of the plaintiff, who is representing her in Canada, send a draft settlement on 07.07.2022 to the counsel for the defendant, who is representing him in Canada, and the defendant has also agreed to the said draft settlement, thus, it cannot be denied that the plaintiff was also interested in the amicable settlement of dispute between the parties. Considering all these aspects, the Court is of the considered view that defendant has not violated the interim injunction order dated 08.07.2022 or any other order by which interim injunction was extended from time to time and there is no merit in the application U/o XXXIX Rule 2 A CPC, therefore, the same is dismissed.”

35. In view of our above discussions, we do not see any merit in the appeal. The same is dismissed. No costs.

[33] Mr. Bhambhani brought both decisions to the attention of this court. Ms. Manchanda did not do so. Her January 2, 2024 affidavit (at paragraph 11) refers to the injunction order being vacated but does not refer to the decisions themselves.

[34] There were no cross examinations on the affidavits prior the motions being heard.

First Motion: Jurisdiction Motion by Respondent: Motion Dismissed

[35] Ms. Manchanda maintains that this court does not have jurisdiction and that this court should dismiss Mr. Bhambhani’s application dated December 13, 2021.

[36] As noted above, two decisions were released by the courts in India in December, 2023. Those decisions are directly relevant to Ms. Manchanda’s jurisdiction motion. It is troubling that Ms. Manchanda did not bring these decisions to this court’s attention.

a. In oral submissions, Ms. Manchanda pointed to paragraph 11 of her affidavit of January 2, 2024, which refers to the injunction order being vacated but does not indicate that recent decisions were released in December, 2023.

b. In addition, the respondent’s affidavit of January 2, 2024 focuses on orders made by the Indian courts in 2022, without noting the December, 2023 decisions.

c. When asked why these decisions were not uploaded in the respondent’s materials in Caselines, the answer was that “page limits” precluded this. Given that the applicant uploaded 451 pages and the respondent uploaded 553 pages for this court date alone, it is clear that neither party felt constrained by brevity and this response was disingenuous, at best.

[37] In oral submissions, Ms. Manchanda asserted that the two December, 2023 decisions from the Family Court and High Court in India “pertained only to the injunction and contempt”. This argument flies in the face of a plain reading of the decisions. Ms. Manchanda did not provide any opinions from legal counsel in India regarding these decisions. Despite this, it is noted that Ms. Manchanda does have access to such expert advice as she filed opinions in 2022 from her counsel in India.

[38] Ms. Manchanda lives in Ontario. Mr. Bhambhani lives in Ontario. They are both employed in Ontario and pay income tax in Ontario and federally. Both children of the marriage live in Ontario and are registered with the local school board.

[39] Ms. Manchanda states that Mr. Bhambhani has no “settled intention” to stay in Ontario but does not support this with any evidence. In contrast, Mr. Bhambhani swore detailed affidavits about the lives of the family in Canada and the steps they took to establish themselves here.

[40] Ms. Manchanda submits that Ontario is not the appropriate jurisdiction because the parties were married in India, separated in India and were living in Calgary just prior to travelling to India in March, 2020.

Existence of Jurisdiction

[41] There are two steps in the jurisdiction analysis:

a. Existence of jurisdiction (jurisdiction simpliciter): does the case fall within the limits of the scope of the jurisdiction of this court?

b. Exercise of jurisdiction: If yes, pursuant to the doctrine of forum non conveniens, should this court decline jurisdiction in favour of a more appropriate forum elsewhere?

[42] There is ample evidence of jurisdiction simpliciter in this case:

a. Divorce Act: for divorce and corollary relief, including parenting time;

b. Children’s Law Reform Act: for custody or access to a child; and

c. Family Law Act: for child and spousal support.

[43] First, S.3(1) of the Divorce Act[^12] provides that a court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

[44] Mr. Bhambhani takes the position that he was ordinarily resident in Ontario since October, 2018. Ms. Manchanda says that the time cannot start until September, 2021, when Mr. Bhambhani returned to Canada and therefore he did not meet the one year requirement when he filed his application on December 13, 2021.

[45] I find that Ms. Manchanda’s argument does not recognize the practical realities of the pandemic and ignores Mr. Bhambhani’s intentions to return to Canada (including working since October, 2018 for Canadian employers, including an Ontario employer since August, 2020). It also ignores Mr. Bhambhani’s history of paying income tax in Canada in 2020, 2021 and 2022 and his stated, unchallenged evidence of making his new life in Canada as a permanent resident.

[46] This case is similar to Boland v. Boland[^13], in which this court decided that Ontario had jurisdiction to deal with the custody and access of the child, support and property issues, and to grant a divorce.

[47] In Boland, the court rejected that Florida was the appropriate jurisdiction and found that the wife had met the one-year ordinarily resident requirement, despite the husband’s argument that the wife had been in Florida. The case is factually dissimilar in that the wife was only out of Ontario for a matter of weeks, but, as noted, above, the pandemic imposed unique realities.

[48] The court in Boland also observed that, even if the one-year requirement under the Divorce Act was not met, relief pursuant to the Family Law Act and the Children’s Law Reform Act did not impose such a requirement. Further, the court noted that the wife could issue a new application for divorce today and the court would clearly have jurisdiction to grant a divorce and corollary relief based on her ongoing residency in Ontario. In this case, Mr. Bhambhani could have refiled his application in September, 2022 and met the one-year requirement, even using Ms. Manchanda’s method of time calculation.

[49] Second, section 22 of the Children’s Law Reform Act[^14] states that a court shall only exercise its jurisdiction where the child is habitually resident in Ontario at the commencement of the application for the order, or, if the child is not habitually resident in Ontario, the court is satisfied that the child is physically present in Ontario at the commencement of the application for the order.

[50] In this case, Ms. Manchanda returned to Ontario in May, 2020 without the children. Mr. Bhambhani followed in September, 2021 with the children. The children have been in Ontario, residing with Mr. Bhambhani since September, 2021. The facts of this case fall well within section 22 of the CLRA.

[51] Third, sections 30 and 31 of the Family Law Act[^15] establish obligations for spousal and child support. Section 33(1) permits the court to make a support order upon application. There is no residency requirement for a child support application. The courts have held that the common law test of real and substantial connection applies[^16].

[52] Given that both parties and both children have been ordinarily resident in Ontario continuously since September, 2021 at the latest, this court clearly has jurisdiction to deal with spousal and child support issues. This finding is buttressed by one of the decisions issued by the Indian court which declined to adjudicate issues with the children as they reside in Ontario.

Exercise of Jurisdiction

[53] Having found that this court has jurisdiction over the issues in this proceeding, the next step is whether the court should exercise jurisdiction. When there is more than one forum capable of assuming jurisdiction, the most appropriate forum is determined using the forum non conveniens doctrine, which permits a court to decline to exercise jurisdiction on the ground that there is more appropriate forum[^17].

[54] When the defendant asserts that there is a more convenient forum, the burden is on the defendant to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. In meeting this burden, the defendant must show that the proposed forum has an appropriate connection, is allowed to dispose of the action and why the alternative forum should be preferred[^18].

[55] The forum non conveniens analysis is factual in nature and depends on the context of the case. The loss of juridical advantage to one of the parties is a relevant consideration. Although the Supreme Court in Club Resorts observed that it would be impossible to draw up an exhaustive list of all factors to consider, most cases consider the following core questions:

a. Location: both parties are living and working in Ontario;

b. Key witnesses: the children are in Ontario. Their education and health care providers are in Ontario. I note that the fathers of both parties are in India and Ms. Manchanda’s father swore an affidavit on this motion.

c. The only issue which is properly litigated in India are the real property issues, which can be easily severed from the issues in Ontario. Indeed, as noted below, the parties agreed in July, 2022 to sever the issues in that very way.

d. There was no evidence on the deprivation of a legitimate juridical advantage, other than Ms. Manchanda’s bald statement that an Ontario divorce would be prejudicial to her. However, there is no evidence to show a connection between the property issues in India and a divorce in Canada. This argument was advanced for the first time in Ms. Manchanda’s factum served on the morning of the motion.

e. Further, as noted on the enforcement motion below, Ms. Manchanda agreed, in early July, 2022, to proceed with the divorce in Ontario. Prior to making that agreement, Ms. Manchanda had an opinion from her lawyer in India, which is silent on the issue of prejudice if the divorce and property claim are separated in the India proceedings.[^19]

f. Finally, the High Court of New Delhi, which rejected Ms. Manchanda’s appeal on December 19, 2023, very clearly stated that Ontario was the appropriate and convenient forum.

[56] Having found jurisdiction simpliciter, the burden is on Ms. Manchanda to demonstrate that it would be fairer and more efficient to adjudicate the claims in India over Ontario. Ms. Manchanda has not met this burden.

[57] Ontario has jurisdiction over this proceeding. The respondent’s motion asking this court to decline jurisdiction is dismissed.

[58] To the extent that the parties have property interests in India, that issue will be litigated before the Indian courts. Indeed, the minutes of settlement negotiated between the parties made this very agreement.

Second Motion: Enforcement Motion and Request for Child Support

[59] Mr. Bhambhani seeks to enforce the minutes of settlement negotiated in July, 2022 and also requests an order for current and retroactive child support payable by Ms. Manchanda.

Enforcement of Settlement Agreement

[60] Rule 18 of the Family Law Rules[^20] governs offers to settle. In determining whether to grant judgment in accordance with an offer and acceptance under rule 18, the court has the same discretion as it has pursuant to the Rules of Civil Procedure.[^21]

[61] A settlement agreement is subject to the general laws of contract regarding offer and acceptance.[^22] For the contract to exist, the court must find that the parties had a mutual intention to create a legally binding contract, and they reached the agreement on all of the essential terms of the settlement.[^23]

[62] Although a legally binding agreement was created, the court has the discretion to enforce, or refuse to enforce, the agreement.[^24]

[63] When the court is exercising its discretion on whether to enforce a settlement, it can take into account factors such as the mistake of a lawyer about their instructions to accept the settlement, the prejudice to the parties, and the effect on third parties.[^25]

[64] The discretion not to enforce a concluded settlement is reserved for rare cases.[^26] These rare cases contain compelling circumstances where the enforcement of the settlement would not be in the interests of justice.[^27] Compelling circumstances include where the settlement would be unreasonable, it would result in an injustice, or if there is another good reason not to enforce it.[^28]

[65] As noted in the facts section above, both parties had settlement discussions through counsel in late June and early July, 2022 and ultimately reached a settlement. In addition to those communications by counsel, it is important to note that Ms. Manchanda herself acknowledges the settlement in an email to Mr. Bhambhani on June 30, 2022 at 4:34pm, stating: “Do you not think we could have achieved the same results without the mess of lawyers?”[^29]

[66] Originally, Ms. Manchanda stated that her reason for not signing the settlement agreement reached in early July, 2022 was because of the injunction granted by the Indian court on July 8, 2022.

[67] This argument fails for two reasons:

a. The settlement agreement existed prior to the injunction. Ms. Manchanda tried to take advantage of her interpretation of the meaning of the injunction to avoid signing the minutes of settlement; and

b. There is no injunction: there is an argument that the injunction did not preclude the parties from entering into this settlement agreement in the first instance, but I do not need to adjudicate that issue as the injunction was lifted. Indeed, the courts in India observed that the parties are encouraged to arrive at amicable resolutions to family law issues.

[68] In oral argument, Ms. Manchanda asserted, for the first time, that the minutes of settlement were accepted by “mistake”. There was no reference to this argument in her five affidavits or factum. This was clearly a brand new argument given that the factum had been served just three hours before the motion.

[69] Ms. Manchanda handed up the 1998 Ontario Court of Appeal case of Milios v. Zagas[^30] In Milios, there were multiple settlement offers exchanged. The plaintiff’s counsel accepted the wrong offer based on mistaken instructions received from the plaintiff’s wife, who had been in communication with the plaintiff via telephone while the plaintiff was out of the country. The mistake was discovered a few weeks later.

[70] Ms. Manchanda’s argument of “mistaken” acceptance of the minutes of settlement fails for the following reasons:

a. There is absolutely no evidence that Ms. Manchanda was mistaken in her acceptance of the settlement. Her five affidavits on this motion are silent on this issue. This is particularly notable given that Ms. Manchanda swore an affidavit just days before this motion (on January 2, 2024) and did not assert this argument.

b. In the case of mistaken instructions, the court would expect evidence from the legal counsel involved in the settlement negotiations to explain how the mistaken acceptance occurred. Evidence would be especially important in this case given that it was Ms. Manchanda’s counsel who drafted the minutes of settlement. Again, the respondent’s materials are completely silent on this point.

c. The settlement in question was accepted in early July, 2022, eighteen months prior to this motion being argued. Had the settlement been accepted by mistake, the onus was on the respondent to raise it in a timely manner.

[71] I find that the parties resolved certain issues in the litigation as of July 7, 2022 and came to a settlement. Ms. Manchanda attempted to resile from the settlement because of the injunction granted in India on July 8, 2022. The argument that the injunction had any impact on the settlement, even assuming that argument ever had merit, is now moot given that the injunction has been lifted.

[72] The absence of signatures on the minutes of settlement does not detract from the fact that, where the parties agree to the essential terms with the intent to be bound, a formal written agreement is not required[^31].

[73] The minutes of settlement, which appear as exhibit F to Mr. Bhambhani’s affidavit of March 20, 2023 and are attached to this endorsement as Schedule A, are valid and enforceable.

Temporary Child Support: Future and Retroactive

[74] Child support is the right of the child. In her affidavit of January 2, 2024, Ms. Manchanda raises issues of Mr. Bhambhani “brainwashing” the children against her. Those issues are not relevant for this motion. The parties will litigate the parenting time issues in future. In the meantime, the children are entitled to financial support from both parents.

[75] Ms. Manchanda, without bringing a motion, asks the court for an order compelling Mr. Bhambhani to disclose the address where the children are residing, the school they are attending and an order that the children will not be removed from Peel, Ontario. As noted above, now that the jurisdiction issue has been resolved, the parties can deal with these issues at a case conference, private mediation, and/or a future motion.

[76] Ms. Manchanda did not include her financial statement in her materials in contravention of Rule 13 of the Family Law Rules. Ms. Manchanda’s failure to comply with Rule 13 hindered the court in determining appropriate temporary child support. However, Ms. Manchanda’s financial statement from February 4, 2022 is found in Mr. Bhambhani’s materials[^32]. This statement discloses that Ms. Manchanda lives in Ontario and works for IBM Canada. As of February 4, 2022, her total annual income is $126,945.36. The statement also discloses that Ms. Bhambhani is the sole titled owner of a property in Brampton valued at $940,000.

[77] Ms. Manchanda submits that this motion is not properly before the court because Mr. Bhambhani only sought child support in his amended notice of motion dated November 15, 2023. However, I note that the scheduling endorsement of August 28, 2023 contemplated a motion for support.

[78] Mr. Bhambhani’s amended notice of motion seeks:

a. Temporary child support of $1800.91 per month pursuant to the Child Support Guidelines based on Ms. Manchanda’s declared income of $126,945.36.

b. An order for retroactive child support to the date of separation in the total amount of $70,235.49 payable by Ms. Manchanda.

c. An order that the parties share ongoing section 7 expenses proportionate to their income.

[79] Ms. Manchanda did not challenge any of these calculations, nor did she seriously challenge the entitlement of the children to ongoing support. Indeed, during oral submissions, Ms. Manchanda indicated that she did not oppose some temporary order.

[80] Ms. Manchanda will pay Mr. Bhambhani $1800.91 per month for child support for both children. These payments shall commence by April 1, 2024.

[81] With respect to retroactive child support, I decline to make that order based on the evidentiary record before me. There needs to be fulsome financial disclosure, affidavit evidence on the date of separation and questioning may also be needed. The parties have leave to bring a motion regarding retroactive child support.

Third Motion: Dismissal/Adjournment Motion by Respondent

[82] Ms. Manchanda brings her second motion by notice of motion dated January 2, 2024. The motion seeks various alternative relief:

a. Dismissing the application; or

b. Adjourning the long motion sine die to allow the divorce proceeding in India to conclude; or

c. Dismissing the claims pertaining to divorce, property and spousal support and permitting the claims pertaining to children (parenting time, decision making, child support and section 7 expenses) to continue.

[83] When asked why Ms. Manchanda had not filed materials earlier than January 2, 2024, she took the incredible position that she was precluded from doing that due to the Indian injunction. By that logic, the respondent should not have filed her materials on the jurisdiction motion on October 16, 2023, yet she did file them with this court.

[83] This motion is dismissed for the following reasons:

a. It is a new motion and completely outside the scheduling parameters ordered by this court, most recently on August 28, 2023;

b. The relief this motion seeks overlaps with the jurisdiction and enforcement motions relief granted in this decision.

[84] To the extent that this third motion raises any issues not adjudicated by this endorsement, the parties have leave to bring a further motion on the outstanding issues.

Other Issues

[85] Ms. Manchanda’s materials raised other issues, such as the appointment of the Office of the Children’s Lawyer and family reintegration therapy. An OCL order is premature as there have not yet been sustained efforts to resolve the parenting issues. The parties should complete the Mandatory Information Program and complete an intake with Peel Family Mediation Services. If the parenting issues cannot be resolved, another motion may be brought.

Orders Made

[86] For clarity, the following orders are made arising from these motions:

a. This court has jurisdiction over any spousal support, child support, equalization and parenting issues. This court also has jurisdiction over the divorce. The only issue in this family law proceeding over which this court does not have jurisdiction is any real property in India.

b. The minutes of settlement served July 7, 2022 (exhibit F to Bhambhani affidavit of March 20, 2023 and appended as Schedule A) are binding and to be enforced. Mr. Bhambhani should provide me, through the Brampton trial coordinator’s office, a draft order incorporating the terms of the accepted offer as per Rule 18(13) of the Family Law Rules.

c. The respondent, Ms. Manchanda, will start paying monthly child support in the amount of $1800.91 to the applicant, Mr. Bhambhani effective April 1, 2023. This is a temporary child support order which is without prejudice to the parties to argue, at a later date, for:

i. Retroactive child support from Ms. Manchanda from date of separation;

ii. Adjustment to this monthly amount to take into account Ms. Manchanda’s updated financial information; or

iii. Any other adjustment supported by the facts.

d. A support deduction order will issue.

e. Effective April 1, 2024, the parties will split section 7 expenses proportionate to their incomes disclosed in the motion materials (Ms. Manchanda’s 2022 income of $126,945.36 and Mr. Bhambhani’s 2022 income of $105,440). This is a temporary order which is without prejudice for the parties to argue, at a later date, for:

i. Retroactive adjustment for section 7 expenses;

ii. Adjustment to monthly amount to take into account the updated financial information of the parties.

Costs

[87] With the exception of the request for retroactive child support, Mr. Bhambhani is the successful party on these motions.

[88] I reviewed the bills of costs uploaded by both parties. In the absence of agreement on costs, the parties should file and serve costs submissions in accordance with the schedule below. The submissions will be double spaced and five pages, maximum, and include any offers of settlement. The submissions should analyze all the factors enumerated in Family Law Rule 24 as well as comment on whether a finding of bad faith in warranted as per Rule 24(8).

[89] The schedule for costs submissions:

a. Applicant by April 15, 2025; and

b. Respondent by April 29, 2024.

Laura B. Stewart J.

Released: March 22, 2024

COURT FILE NO.: FS-21-00102171-0000

DATE: 2024-03-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Avinash Bhambhani, Applicant

AND:

Damini Manchanda, Respondent

COUNSEL: Shelly Kalra, for the Applicant

Chaitali Desai, for the Respondent

ENDORSEMENT

Madam Justice L.B. Stewart

Released: March 22, 2024

[^1]: Taken from Caselines as at the date of oral argument, January 10, 2022 [^2]: Email from Ms. Manchanda’s legal counsel dated June 30, 2022, Exhibit C to Bhambhani affidavit of March 20, 2023. [^3]: Email from Mr. Bhambhani’s legal counsel dated July 4, 2022, Exhibit C to Bhambhani affidavit of March 20, 2023. [^4]: Email from Ms. Manchanda’s legal counsel dated July 4, 2022, Exhibit C to Bhambhani affidavit of March 20, 2023. [^5]: Exhibit D to Bhambhani affidavit of March 20, 2023 [^6]: Exhibit D to Bhambhani affidavit of March 20, 2023 [^7]: Exhibit E to Bhambhani affidavit of March 20, 2023 [^8]: Exhibit E to Bhambhani affidavit of March 20, 2023 [^9]: Draft minutes of settlement, Exhibit F to Bhambhani affidavit of March 20, 2023 [^10]: Exhibit G to Bhambhani affidavit of March 20,2023 [^11]: Exhibit G to Bhambhani affidavit of March 20, 2023 [^12]: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). [^13]: Boland v. Boland, 2016 ONSC 4390. [^14]: Children’s Law Reform Act, R.S.O. 1990, c. C.12. [^15]: Family Law Act, R.S.O. 1990, c. F.3. [^16]: Morgan v. Baxter, 2015 ONSC 2214, at para. 19, citing Naeli v. Ghaeinizadeh, 2013 ONCA 2, at para. 13. [^17]: Muscutt v. Courcelles (2002), 2002 CanLII 44957 (ON CA), 60 O.R. (3d) 20 (C.A.), at para. 40. [^18]: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, at para. 103. [^19]: Exhibit K to Manchanda affidavit of June 17, 2022. [^20]: Family Law Rules, O. Reg. 114/99. [^21]: Quesnel v. Nadon-Quesnel (2001), 2001 CanLII 28259 (ON SC), 24 R.F.L. (5th) 89 (Ont. S.C.), at para. 17. [^22]: Laud v. Southwestern Legislative Safety Consulting, 2023 ONSC 5510, at para. 25. [^23]: Laud, at para. 25. [^24]: Wilson v. Johnston, 2015 ONSC 3016, at para. 72. [^25]: GMBR Capital Corp. v. Parmar, 2021 ONSC 7798, at para. 27. [^26]: GMBR Capital Corp., at para. 28. [^27]: GMBR Capital Corp., at para. 28; Srebot v. Srebot Farms Ltd., 2013 ONCA 84, at para. 6. [^28]: GMBR Capital Corp., at para. 28; Wilson, at para. 72. [^29]: Email from Ms. Manchanda to Mr. Bhambhani, June 30, 2022 at 434pm. Exhibit C to Bhambhani affidavit of November 28, 2022. [^30]: Milios v. Zagas (1998), 1998 CanLII 7119 (ON CA), 38 O.R. (3d) 218 (C.A.). [^31]: Osborne v. Osborne, 2020 ONSC 3826, at paras. 9-13 and 19. [^32]: Exhibit J to Bhambhani affidavit of November 15, 2023.