COURT FILE NO.: FS-23-107-00 DATE: 2024 06 20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ishan KALRA A. Naagar, for the Applicant

• and -

Shruti BHATIA R. Sangha, for the Respondent

HEARD: June 5, 2024

ENDORSEMENT The Honourable Justice Ranjan K. Agarwal

I. INTRODUCTION

[1] The respondent Shruti Bhatia moves for an order that this court has no jurisdiction over this proceeding. Shruti accepts that this court has jurisdiction simpliciter under section 3(1) of the Divorce Act, RSC 1985, c 3 (2nd Supp). But she argues that this court should decline to exercise that jurisdiction because India is the “clearly more appropriate” forum for resolving this proceeding.

[2] This motion is, effectively, the second phase of a long-running jurisdiction dispute between Bhatia and the applicant Ishan Kalra. In March 2024, I held that the child of the marriage, SK, was habitually resident in Ontario at the start of this application, meaning that the Ontario courts have jurisdiction to make a parenting order under the Children’s Law Reform Act, RSO 1990, c C.12. See Kalra v Bhatia, 2024 ONSC 1443 (Kalra No 1). In response to my order that Shruti shall serve an answer, she now challenges the court’s jurisdiction under the Divorce Act.

[3] At bottom, it would be unfair and inefficient for this court to decline to exercise its jurisdiction in this case. Shruti and SK moved to Canada, with the stated goal of Shruti becoming a permanent resident. Ishan joined her here, also to become a permanent resident. Their marriage broke down here. Ishan continues to live and work or study here. Shruti transits between India and Canada regularly and easily. She has since abducted SK to India, denying SK any parenting time with Ishan.

[4] On this motion, Shruti has failed to show that India is the “clearly more appropriate” forum for the litigation of the parties’ divorce. The parties, witnesses, and evidence are located in both places, not just India. Further, Shruti hasn’t shown how litigating the divorce in Canada would deny her a juridical advantage or lead to conflicting decisions. Shruti concedes that Canada has properly assumed jurisdiction. The “normal state of affairs” is that jurisdiction should be exercised once assumed. As a result, Shruti’s motion is dismissed. Shruti shall serve an answer on or before July 10, 2024.

II. BACKGROUND

A. Facts

[5] The facts and litigation history are discussed in paragraphs 5 to 27 of Kalra No 1. The parties introduced four additional affidavits for this motion. They were cross-examined on those affidavits in court.

B. The Bifurcation of the Jurisdiction Issues

[6] Shruti insists that she sought an order that this court has no jurisdiction under the Divorce Act in the Kalra No 1 motion. If Shruti challenged jurisdiction under the Divorce Act, it was in passing:

• Ishan started a family law application on September 22, 2023, along with a motion for leave to file the application without tax information, substituted service, and for a chasing order
• Justice Shaw’s endorsement states that the “issue of jurisdiction must also be addressed”
• the application was filed or issued on November 10, 2023 [1]
• Ishan scheduled a motion for January 5, 2024, seeking an order that “Ontario has jurisdiction concerning this matter because the child was habitually resident of Brampton…”
• Ishan’s lawyer emailed the motion materials to Shruti on November 16th
• on November 18th, Shruti’s lawyer offered to accept service of the “pleadings, proceedings/processes and the documents” filed in the case—Ishan emailed the application to her lawyer on November 20th
• Shruti’s affidavit for the January 5th motion hearing discussed the Indian divorce petition
• Ishan’s motion was dismissed pending a case conference—Justice Wilkinson’s endorsement states, among other things, that it “must first be established if Ontario can exercise jurisdiction over this case”
• Ishan’s motion was heard on March 4, 2024

[7] Shruti never filed a notice of motion objecting to this court’s jurisdiction under the Divorce Act. Her factum did seek an order that “the Applicant’s Divorce Application…be dismissed on the grounds of lack of jurisdiction”. But the factum never mentions the Divorce Act or the leading authorities on jurisdiction under the Divorce Act. At the hearing, there was no evidence or submissions made about jurisdiction under the Divorce Act. As a result, the motion proceeded only on whether this court had jurisdiction to make a parenting order under the CLRA.

[8] Following the release of Kalra No 1, Shruti filed an answer “under protest”. It would be improper for this court to make orders binding on the parties if the court didn’t have jurisdiction. As a result, I scheduled a hearing on June 5, 2024, for Shruti’s motion challenging jurisdiction under the Divorce Act.

[9] If a respondent to a family law application is challenging jurisdiction under the Divorce Act, the Family Law Act, RSO 1990, c F.3, or the CLRA, they should serve a motion in response to the application (similar to a motion under rule 21.01(3)(a) of the Rules of Civil Procedure), and then seek directions under the Family Law Rules and the practice directions for a hearing of their motion. In doing so, they can avoid the issues presented by this case, where the burden of proof and the scope of the jurisdiction issues aren’t clearly delineated, causing delay and increased costs. If the respondent is delaying doing so, the applicant has remedies under rule 10(5) or can seek directions itself.

C. Evidentiary Issue—Leave to Introduce Expert Evidence

[10] At the start of the hearing, Shruti moved for leave to introduce evidence from a litigation expert on Indian law. The expert’s report was attached to one of Shruti’s affidavits. Ishan objected to the introduction of this evidence on several grounds:

• the case management endorsement for this motion limited the parties to one affidavit each—Shruti didn’t seek case management directions on whether she can rely on a litigation expert or to amend the timetable for the service of the parties’ evidence
• the expert’s report was served on May 30th, which was less than six days before the hearing
• the report didn’t included the contents required by rule 20.2(2) of the Family Law Rules
• Ishan was prejudiced by the late-delivery of this report, as he had insufficient time to consult his own litigation expert or deliver a responding report, both of which would have caused an adjournment of the hearing

[11] At the hearing, Shruti advised that she was only relying on the report to show that the cases in India were “pending”. She argued that because Ishan refused to acknowledge the Indian proceedings in his materials, she was required to prove that the cases were ongoing. Ishan admits that the cases are “pending”—he questions whether he’s been served and their relevancy to this motion, but he doesn’t deny that there are cases involving him or his parents in India.

[12] As a result, I denied Shruti’s request to introduce this report. Leaving aside the unfairness caused by the late delivery of the report, the report is unnecessary. Shruti seeks to rely on it for a fact—that the cases are pending—not an opinion. That is redundant because Ishan now admits that fact.

D. Legislative Framework

[13] 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. See Divorce Act, s 3(1).

[14] Jurisdiction simpliciter and forum non conveniens play distinct analytical roles. See Haaretz.com v Goldhar, 2018 SCC 28, [2018] 2 SCR 3, at para 27. In this case, Shruti concedes that the Ontario court has jurisdiction: she doesn’t dispute that both of her and Ishan had been “habitually resident” in Ontario for at least one year before the start of this proceeding. See Armoyan v Armoyan, 2013 NSCA 99, 334 NSR (2d) 204, at para 210.

[15] The issue on this motion is whether this court should decline to exercise that jurisdiction in favour of India because it’s a “clearly more appropriate” forum. See Haaretz.com, at para 27; Wang v Lin, 2013 ONCA 33, at para 21.

[16] At the forum non conveniens stage, the burden is on the respondent to satisfy the motion judge that the alternative forum is “clearly more appropriate” by establishing that it would be fairer and more efficient to proceed in that forum through:

(a) identifying another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action; (b) showing what connections this alternative forum has with the subject matter of the litigation; and (c) showing why the proposed alternative forum should be preferred and considered to be more appropriate.

See Club Resorts Ltd. v Van Breda, 2012 SCC 17, [2012] 1 SCR 572, at para 103; Haaeretz.com, at para 46.

[17] The factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on the context and might include:

(a) the locations of parties and witnesses; (b) the cost of transferring the case to another jurisdiction or of declining the stay; (c) the effect of a transfer on the conduct of the litigation or on related or parallel proceedings; (d) the possibility of conflicting judgments; (e) problems related to the recognition and enforcement of judgments; (f) the relative strengths of the connections of the two parties; and (g) loss of juridical advantage.

See Club Resorts Ltd., at para 110-11.

[18] The factors from Club Resorts Ltd are widely accepted and applied in family law cases. [2] See de Somer v Martin, 2012 ONCA 535, 295 OAC 287, at para 29; Gyuzeleva v Angelov, 2012 ONSC 6628, at para 9; Karkulowski v Karkulowski, 2014 ONSC 1222, at para 54; Gillespie v Jones, 2015 ONSC 5265, at para 53; Nogueira v Kuczynski, 2019 ONSC 1032, at para 35; Borschel v Borschel, 2021 ONSC 293, at para 83; Ludwig v Ludwig, 2022 ONSC 3359, at para 144. In Singh v Sandhu, 2024 ONSC 1265, Justice Ramsay also relied on the parties’ “real home” or “ordinary residence” as a factor.

III. ANALYSIS AND DISPOSITION

[19] Shruti’s evidence and oral submissions focused on two sets of facts: (a) the parties’ and SK’s connections to India; and (b) the pending cases in India. These facts touch on all the forum factors listed in Van Breda, so I have organized my discussion around those factors.

A. The Locations of the Parties

[20] Ishan has lived and worked or studied in Ontario continuously since October 2022. He’s in Canada on a study permit that expires in August—he then intends to apply for a work permit. Ishan says he has no intention of returning to India. Shruti responds that Ishan always intended to return to India, but now won’t do so because he’ll be arrested. In Kalra No 1, I found that Ishan intends to live and work in Canada regardless of the outstanding arrest warrant. The evidence introduced on this motion doesn’t change my finding.

[21] Shruti says she and Ishan are “domicile Resident of India”:

• they and SK are Indian citizens
• they lived, studied, and worked in India
• neither party holds “citizenship, permanent resident status, or Green Card in any other country”
• they were married in India and the marriage was registered under Indian law, customs, and rituals
• SK has been living in India since April 2023 (though I did find that Shruti unlawfully abducted SK)

[22] Shruti’s evidence on her location is inconsistent and, as a result, unreliable:

• as of May 13th, she “presently reside[s] at 8565 on High- Way 27, Unit 8, Woodbridge, Ontario, I4L 1A7, Canada”—Ishan’s evidence is that this address is a commercial building housing a Pizza Mart restaurant
• on cross-examination, Shruti clarified she’s living in Wasaga Beach, not Woodbridge
• in her May 13th affidavit, she deposed, “I am back to Canada on May 1, 2024”—in cross-examination, she said she arrived in Canada on June 1st
• in cross-examination she said she came back to Canada to apply for permanent resident status but then said her trip was “just a normal visit to look if I can stay”

[23] Shruti’s location doesn’t seem to hinder her participation in this case. She testified by videoconference in the first hearing. For this hearing, she attended in-person even though she was allowed to testify virtually.

[24] On the totality of the evidence, I find that Shruti, at the very least, lives in both Canada and India (if not Canada alone). She lived and studied or worked here from April 2021 until she abducted SK to India in April 2023. She then returned to Canada in July 2023 for almost five months (except for a 3-week trip to India). She’s been in Canada since May or June 2024 and has no definite plans to return to India. In cross-examination, she suggested that it’s SK’s decision whether they live in India or Canada (which doesn’t make common sense, given that SK is six years old). Shruti is trying to ride two horses at the same time: live and work in Canada to maintain her immigration status and eventually apply for permanent resident status, but return to India often enough to try to preserve her forum arguments in this proceeding.

[25] This factor doesn’t support India being the clearly more appropriate forum, since Ishan lives here and Shruti lives here at least concurrently.

B. The Locations of the Witnesses

[26] I don’t know who else will be a witness to this proceeding. The only issues pleaded by Ishan are decision-making authority, parenting time, and table child support. As a result, the relevant evidence is likely about SK’s best interests, based on the factors in section 16(1) of the Divorce Act. The witnesses in a parenting case are usually the parties, grandparents, or other relatives involved in parenting, caregivers, teachers, family doctors, and counsellors, such as social workers.

[27] SK lived in Canada and went to school here for over a year. As a result, there’s likely some best interests evidence here. But there’s no dispute that since being abducted, SK is settling in India. India is where she goes to school and tutoring, has friends, and sees her doctor. All of her grandparents live in India, and SK stays with her maternal grandparents when Shruti lives in Canada.

[28] That all said, I find that this factor doesn’t support India being the clearly more appropriate forum. SK’s connections to India arise because Shruti unlawfully abducted her. If a parent is allowed to wrongfully remove a child from Ontario, settle the child in a new place, and then successfully argue that the new place is the better forum to litigate parenting issues because the child now has a closer connection to the new place, such a ruling would undermine the jurisdiction analysis and risks encouraging child abductions from Ontario. See Malpani v Malpani, 2022 ONSC 4123, at para 17.

[29] Further, given videoconference technology and the Ontario courts’ willingness to accommodate virtual trials, the location of the witnesses is less relevant—even if most of the witnesses are in India, they can testify virtually as Shruti did at the first hearing.

[30] Finally, Shruti hasn’t identified any witnesses. Her evidence suggests that she will claim child support, spousal support, and for an equalization payment. She asserts that the “witnesses, experts required in the cases” are in India, but she hasn’t particularized who these witnesses are.

C. The Relative Strengths of the Connections of the Two Parties

[31] I find that this factor also doesn’t support India being the clearly more appropriate forum. Ishan has a strong connection to Canada given that he lives and studies or works here, and has for almost two years.

[32] Though Shruti says she has a stronger connection to India, she continues to live in Canada for long periods of time. She’s worked and studied here. She files taxes in Canada. She told the court that she’s living rent-free in Wasaga Beach until she decides what to do next. She resided in Wasaga Beach when she lived in Canada in 2023. For a person to transit back-and-forth between India and Canada with relative ease, including having access to housing immediately upon arrival, suggests some connection to Canada.

D. The Cost of Transferring the Case to Another Jurisdiction or of Declining the Stay

[33] Shruti deposes that if the divorce case proceeds in Canada instead of India, her parents will suffer financially because they’re paying the costs of the litigation started in India. She also says that she will suffer emotionally because she won’t have the support of her friends and family. I don’t find these arguments persuasive—litigation is expensive whether it’s here or in India, and there’s nothing that stops friends or family being supportive over great distances. Further, if the divorce case proceeds in India, Ishan will have the same arguments about the financial and emotional toll on him. He’ll have to engage a lawyer in India, and he won’t have the direct support of his friends or family who are here.

[34] Shruti also submits that it’s not possible to “transfer” this case to India. I agree—the purpose of this jurisdiction motion is to regularize the proceedings so the divorce case proceeds in only one place.

[35] As a result, I find that this factor also doesn’t support India being the clearly more appropriate forum.

E. The Effect of a Transfer on the Conduct of the Litigation or on Related or Parallel Proceedings; the Possibility of Conflicting Judgments; and Loss of Juridical Advantage

[36] Shruti’s argument about the other litigation in India engages all three of these factors, so I will deal with them together.

[37] There are three ongoing proceedings in India. Though I discuss these proceedings in Kalra No 1, I discuss them again here because they’re central to Shruti’s forum argument. First, on April 21, 2023, the police charged Ishan with breach of The Indian Penal Code, ss 498A (husband or relative of husband of a woman subjecting her to cruelty), 406 (criminal breach of trust), [3] and 354C (voyeurism). The Indian court has issued a warrant for Ishan’s arrest. The next hearing date is July 12, 2024.

[38] Second, on October 6, 2023, Shruti started family court proceedings against Ishan for a divorce under section 13(1) of The Hindu Marriage Act, 1955. [4] Shruti alleges cruelty as the basis for her divorce petition. The next hearing date is July 9, 2024.

[39] Third, on November 24, 2023, Shruti and her mother started family court proceedings against Ishan’s parents, seeking the equivalent of a restraining order against them to prevent them from abducting SK. The next hearing date is July 15, 2024. There’s been no final order made in any of these proceedings.

[40] There’s a serious dispute whether Ishan has been served or when he had notice of these proceedings. Ishan contends that he hasn’t been served yet, and didn’t learn about the proceedings until December 2023 (when Shruti served an affidavit discussing the cases). Though Shruti insists otherwise by filing paperwork she says proves service, I don’t know if these documents do so under Indian law. The content of foreign law is treated as an issue of fact, proved by expert evidence. See Hunt v T&N plc, [1993] 4 SCR 289, at 308. A judge can’t independently research the substance of foreign law; they must rather determine its content based on evidence, typically expert evidence. See Bumper Development Corporation Ltd. v Commissioner of Police of the Metropolis, [1991] 4 All ER 638 (CA); Das v George Weston Limited, 2017 ONSC 4129, at para 200.

[41] To begin, the criminal proceedings and the restraining order proceedings aren’t relevant to this analysis. Even if the Ontario courts exercise jurisdiction over the parties’ divorce and corollary relief proceeding, I haven’t been provided any evidence or argument about the impact on the other proceedings. I can’t see how the granting of a divorce in Canada, a parenting order for SK, or an order for support and equalization would impact the criminal case. Shruti didn’t argue, for example, that if the Ontario courts exercise jurisdiction over the divorce proceedings, Ishan can’t be prosecuted for committing a crime in India. Similarly, the restraining order proceedings are against Ishan’s parents, who aren’t a party to this proceeding. Again, Shruti didn’t argue, for example, that if the Ontario courts exercise jurisdiction over the divorce proceeding, Ishan’s parents can’t be subject to a restraining order in India. There’s no evidence of a risk of conflicting judgments. I haven’t been provided any evidence of a loss of juridical advantage for these two cases.

[42] As for the divorce proceeding, Shruti makes four arguments. First, she contends that Ishan knew about the legal proceedings in India before September 2023, and started this proceeding to get a juridical advantage. She argues that Ishan’s father took a photo of SK in August 2023 to create evidence for the divorce proceedings. But only the criminal proceeding was started before September 2023. Again, I don’t know if Ishan was served with that proceeding before then. There’s no evidence that Shruti put him on notice before then. Ishan’s evidence that his father took a picture of SK because no one knew, until then, that Shruti had abducted her to India is credible and reliable.

[43] Second, Shruti argues that India has special laws to deal with cruelty, dowry, and streedhan. Shruti’s evidence on these laws is opinion evidence, and is therefore inadmissible. Witnesses are to testify about the facts which they perceive, not the opinions that they drew from them. But a witness is allowed to state their opinion about matters calling for special knowledge or skill, provided they are expert in them. See White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, [2015] 2 SCR 182, at paras 14-15. Again, foreign law is treated as an issue of fact proved by expert evidence. To that end, I don’t know how issues related to cruelty, dowry, or streedhan are treated in an Indian divorce petition. I don’t know whether there’s a risk of conflicting judgments or if Shruti will lose a juridical advantage because she didn’t lead any admissible evidence about Indian divorce law.

[44] Third, Shruti asserts that the parties’ financial claims (including “major property and financial status”) can’t be considered under Canadian law. Shruti has filed no evidence about her assets in India. Ishan says he has no property in India. Further, the Family Law Act considers all assets and debts accumulated during the marriage—there’s no exclusion for foreign assets and debts. I don’t understand Shruti’s assertion that the Ontario courts can only consider “the financial circumstances in Canada”. As for child support and spousal support, I haven’t been provided any admissible evidence on how these issues are treated in India. Shruti states that these issues will be “computed by the Indian courts as per the financial condition of the Applicant in India, which is better than Canada.” In determining the parties’ income or whether Shruti is entitled to spousal support, the Ontario court can consider foreign income, assets, and debts.

[45] Finally, Shruti argues that there’s a conflict because she’s alleging cruelty in the Indian case, something she can’t do here. As a respondent to Ishan’s case, Shruti can make claims of her own. She can ask the court to make a finding that the breakdown of the marriage was caused by Ishan committing adultery, or treating her “with physical or mental cruelty of such a kind as to render intolerable” their continued cohabitation. See Divorce Act, s 8(2)(b). She can sue Ishan for the torts of battery, assault, and intentional infliction of emotional distress. See Ahluwalia v Ahluwalia, 2023 ONCA 476, leave to appeal to SCC granted, 41061 (May 16, 2024). On SK’s best interests, Shruti can rely on any family violence, and its impact on the ability and willingness of Ishan to care for and meet SK’s needs, and the appropriateness of making an order that would require her and Ishan to cooperate on issues affecting SK. See Divorce Act, s 16(3)(j).

[46] As a result, I find that these factors also don’t support India being the clearly more appropriate forum.

D. Order

[47] In sum, Shruti hasn’t met her burden of showing why this court should decline to exercise its jurisdiction and displace the forum chosen by Ishan. She’s failed to demonstrate that India should be preferred or considered to be more appropriate. As a result, Shruti’s motion is dismissed.

[48] The appropriate order is that, once again, Shruti should answer the case, and this application should proceed to trial quickly:

(a) Shruti shall serve a substantive answer on Ishan on or before July 10, 2024; and (b) the parties shall attend a virtual case conference before me on July 16th at 930am.

[49] The parties will engage in meaningful discussions and negotiations respecting the costs of this motion. If they can’t resolve costs, any party seeking costs shall serve, file, and upload to CaseLines costs submissions (1000 words), any relevant offers to settle, and their bill of costs by July 2nd, 4pm. The other party’s responding submissions (1000 words) shall be served, filed, and uploaded to CaseLines by July 9th, 4pm.

IV. CONCLUSION

[50] Child abduction cases are to be disposed of promptly. Ishan hasn’t seen SK in almost 18 months. SK has been denied her right to parenting time with Ishan because Shruti abducted her to India.

[51] Our constitutional framework limits the external reach of a province’s courts—the powers of our courts must be “exercised in a manner consistent with the territorial restrictions created by the Constitution.” See Van Breda, at para 21. For that reason, our courts shouldn’t assume or exercise jurisdiction where a respondent raises issues about the reach of a court’s powers. Shruti has made two jurisdiction challenges, first on the reach of the CLRA, and the second on the reach of the Divorce Act. In both cases, this court has found that it has jurisdiction, and that it should exercise jurisdiction. The time has come for Shruti to answer this case so SK’s best interests can be determined justly and expeditiously.

Justice R.K. Agarwal

Released: June 20, 2024

COURT FILE NO.: FS-23-107-00 DATE: 2024 06 20 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KALRA, Ishan Applicant - and - BHATIA, Shruti Respondent ENDORSEMENT Justice R.K. Agarwal

Released: June 20, 2024

[1] The “Date of Issue” on the Form 8: Application (General) states “November 10, 2022”. But the clerk’s signature is dated November 10, 2023, and the parties concede that the application was issued in 2023 not 2022.

[2] The B.C. legislature has codified the factors for in cross-border property disputes. See Family Law Act, SBC 2011, c 25, s 106(5); Jiang v. Shi, 2017 BCCA 276, [2017] 11 WWR 660, at paras 19-35. The Nova Scotia Court of Appeal, in Armoyan, used the factors codified in the Court Jurisdiction and Proceedings Transfer Act, SNS 2003 (2d Sess), c 2, s 12. Ontario doesn’t have similar legislation.

[3] Section 406 protects a woman’s streedhan (wedding property) from misappropriation. Shruti alleges that Ishan and his parents forced her and her family to provide a dowry and gifts to Ishan and his extended family.

[4] Ishan insists the divorce petition was started on November 21, 2023. The documents filed for this motion suggest that it was started in October.