Court File and Parties
COURT FILE NO.: FS-23-00046460-0000 DATE: 2024-09-26 SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y6
RE: Harpreet Bajaj, Applicant AND: Ravinder Kaur Bajaj, Respondent
BEFORE: Justice C. Yamashita
COUNSEL: Vic Sehdev, for the Applicant Elizabeth Jacob, for the Respondent
HEARD: September 11, 2024, by videoconference
Endorsement
[1] This motion is brought by the applicant for an order severing the divorce from all corollary relief.
[2] The respondent opposes the relief sought primarily on the basis that granting a divorce at this stage of the proceeding will prejudice the claim she has commenced against the applicant in India (the “India Proceeding”).
Background Facts
[3] The parties married on or about January 28, 2000 in New Delhi and separated on or about February 28, 2020. The parties have resided in Canada since at least 2003. They have continued to live separate and apart since the date of separation with no possibility of reconciliation.
[4] The parties have two children, namely A.B.1., born July 12, 2006 (age 18), and A.B.2, born March 28, 2011 (age 13).
[5] Pursuant to the Order of Justice Himel, dated September 19, 2022, which incorporated minutes of settlement, dated August 9, 2020, on a temporary and without prejudice basis, the parties have joint decision-making responsibility and the children are to primarily reside with the respondent.
[6] Pursuant to the Order of Justice Himel, dated June 7, 2023, on consent, the applicant is paying temporary and without prejudice child support in the amount of $6,574 per month and spousal support in the amount of $8,351 per month. The Order also provides that the applicant shall pay all school-related special and extraordinary expenses related to the children. The applicant submits that these expenses include his payment of tuition for the children’s private school in the range of $100,000.
[7] The respondent confirmed that all support payments are up to date in her questioning on July 24, 2024.
[8] There is no final order respecting any of the issues in the dispute.
[9] The trial is scheduled to proceed on the October 7, 2024 sittings, but there is some concern raised by the applicant that the trial may not proceed given the respondent’s alleged non-compliance with disclosure issues, delayed questioning, outstanding answers to undertakings, and the late delivery of a business valuation.
[10] Although the respondent seeks a divorce in her Answer, the respondent opposes the severance sought on this motion. Her primary argument is that the divorce will prejudice the proceedings she commenced in India against the applicant. The respondent further submits that the applicant has a history of not complying with court orders and believes that the applicant will delay this proceeding should the severance be granted.
[11] The applicant counters that it is the respondent who has delayed this proceeding and is in breach of a disclosure Order of Mills J., dated May 14, 2024. The applicant submits that the India Proceeding initiated by the respondent is baseless and an abuse of process designed to prevent the applicant from moving on with his life.
[12] The applicant further submits that there is a genuine need for a divorce because he wishes to marry his fiancé who has moved from Michigan to Ontario to begin her oncology medical practice. The applicant and his fiancé wish to marry before moving in with one another and her parents are visiting from India (they leave in November 2024).
Leave granted to the Applicant to bring the Severance Motion
[13] The applicant sought the respondent’s consent to sever the divorce by way of a 14B motion, which was first heard on December 11, 2023 before Mills J. At that time, Mills J. held that it was premature to sever the divorce and ordered that the parties attend a joint settlement/trial management conference.
[14] Following the parties’ participation in a joint settlement/trial management conference on May 14, 2024, Mills J. granted the applicant leave to bring this motion to sever the divorce from the corollary issues.
India Proceeding Commenced by the Respondent
[15] The applicant submits that he first discovered that the respondent had commenced the India Proceeding against him upon reading the respondent’s affidavit, dated December 6, 2023, filed in this proceeding.
[16] On January 8, 2024, the applicant requested copies of all documents pertaining to the India proceeding, but there was no response from the respondent. Follow up requests were made by the applicant to the respondent, through counsel, on January 20, February 1, February 6, February 9, February 13, March 11 and March 14, 2024. On March 24, 2024, the applicant delivered an updated Request for Information requesting copies of the documents filed by the respondent in the India Proceeding.
[17] On April 5, 2024, the respondent provided the applicant with the pleadings in the India Proceeding. In her claim, the respondent alleges domestic abuse and seeks monetary compensation for same under the Protection for Women from Domestic Violence Act, 2005 (the “Domestic Violence Act”).
[18] The complaint filed by the respondent in the India Proceeding is dated December 6, 2023, and pertains to the time period from 2000 to 2002 when the parties resided in New Delhi, India.
[19] Since at least 2003, the parties have resided in Canada and are now Canadian citizens.
[20] In the India Proceeding, the respondent requests an interim order that the applicant be prohibited from:
a. Committing any act of domestic violence upon the respondent whenever she visits New Delhi, India;
b. Attempting to communicate or contacting the respondent in any form while she is in India;
c. Causing violence to the relatives or any person in India who gives assistance to the respondent from domestic violence; and,
d. Alienating the dowry articles/istridham i.e., the gold jewellery of the respondent.
[21] The respondent further requests in the India Proceeding that the applicant pay to the respondent damages on account of loss earnings of her salary while she was working in India and pay compensation due to injuries, mental torture and emotional distress caused by the acts of domestic violence committed by the applicant against her.
[22] None of the claims advanced by the respondent in the India Proceeding have been advanced by the respondent in the family law proceedings in Ontario.
Preliminary Matters:
[23] At the outset of the respondent’s submissions, counsel requested that certain paragraphs of the applicant’s affidavit be struck on the basis that they contained without prejudice settlement discussions. Specifically, the respondent requests that subparagraphs 15(c)-15(k) and 15(m) of the affidavit of Harpreet Singh Bajaj, dated May 27, 2024 (the “Impugned Paragraphs”), be struck.
[24] The Impugned Paragraphs clearly contain settlement discussions. The applicant did not make any submissions in reply to the respondent’s objection to the Impugned Paragraphs. Consequently, I order that the Impugned Paragraphs be struck from the affidavit. I have not considered the Impugned Paragraphs on this motion.
Legal Principles
[25] Pursuant to rule 12(6) of the Family Law Rules, the Court may, on motion, make an order splitting a divorce from the other issues in a case, if:
a. Neither spouse will be disadvantaged by the order; and,
b. Reasonable arrangements have been made for support of any children of the marriage.
[26] The applicant is agreeable to providing the respondent with medical benefits equivalent to the benefits that she is currently receiving. The respondent did not raise any objection to this term nor were any submissions made by the respondent that the provision offered by the applicant regarding benefits was insufficient.
[27] Similarly, there is no dispute that reasonable arrangements have been made for support of the children. The respondent concedes in her factum that there has been reasonable, although temporary, arrangements made for the support of the children and that this motion is governed by rule 12(6)(a). As such, the focus of the parties’ arguments and submissions focussed on the first prong of the rule 12(6) test.
[28] The law pertaining to rule 12(6) is summarized by Raikes J. in the case of Zantingh v. Zantingh, 2021 ONSC 2312 as follows:
[14] The word “disadvantaged” as used in r. 12(6)(a) means a legal disadvantage that the responding party may suffer if severance is granted. It must mean more than simply withholding or delaying the divorce as a form of leverage for other issues that can be pursued separately: Al-Saati v. Fahmi, [2015] O.J. No. 774, at para. 27.
[15] The onus of establishing that the responding party (the applicant in this case) will not be prejudiced by the severance rests on the moving party (the respondent): Bakmazian v. Iskedjian, 2015 ONSC 7493, at para. 10.
[16] Severance of a divorce claim from corollary issues may be denied for prejudice to the other spouse where the order would or could deprive that other spouse of medical benefits: Shawyer v. Shawyer, 2016 ONSC 830, at para. 58 (and the cases cited therein).
[17] Even if there is no direct prejudice from the granting of such an order, the court has a residual discretion to refuse to sever where doing so would not be efficient or where the moving party has failed to comply with court orders or the rules including financial disclosure. The rule provides that the court “may”, not “shall”, make the order if the conditions in (a) and (b) are met.
Discussion
[30] The respondent submits that she will be prejudiced or disadvantaged in the India Proceeding should the severance be granted. In the event that the Court finds that she is not prejudiced or disadvantaged, the respondent submits that the Court should exercise its residual discretion to refuse the severance.
[31] Accordingly, there are two main issues to be determined on this motion:
a. Will the respondent be disadvantaged in the India Proceeding should the severance be granted?
b. If not, should the Court nevertheless refuse to grant the severance?
Will the respondent be disadvantaged in the India Proceeding?
Admissibility of Expert Reports:
[32] In support of the respondent’s argument that she will be disadvantaged, the respondent relies upon the affidavits authored by Harpreet Singh, the respondent’s counsel in the India Proceeding. Mr. Singh is a lawyer enrolled with the Punjab and Haryana Bar Council and has been actively practicing law for 22 years.
[33] The applicant relies upon the affidavits/reports of Vipin Gogia, dated August 16, 2024, and September 5, 2024, as well as the affidavit of Amit Grover, dated August 16, 2024. Mr. Gogia is an Advocate of the Hon’ble Supreme Court of India at New Delhi and has been practicing law for more than 37 years. Mr. Grover is the applicant’s counsel in India.
[34] Rule 20.2 of the Family Law Rules applies to the admissibility of expert opinion evidence. The rule provides as follows:
Expert witness reports
(2) A party who wishes to call a litigation expert as a witness at trial shall, at least six days before the settlement conference, serve on all other parties and file a report signed by the expert and containing, at a minimum, the following:
- The expert’s name, address and area of expertise.
- The expert’s qualifications, including his or her employment and educational experiences in his or her area of expertise.
- The nature of the opinion being sought and each issue in the case to which the opinion relates.
- The instructions provided to the expert in relation to the case.
- The expert’s opinion on each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
- The expert’s reasons for his or her opinion, including, i. a description of the factual assumptions on which the opinion is based, ii. a description of any research or test conducted by or for the expert, or of any independent observations made by the expert, that led him or her to form the opinion, and, for each test, A. an explanation of the scientific principles underlying the test and of the meaning of the test results, and B. a description of any substantial influence a person’s gender, socio-economic status, culture or race had or may have had on the test results or on the expert’s assessment of the test results, and iii. a description and explanation of every document or other source of information directly relied on by the expert in forming the opinion.
- An acknowledgement of expert’s duty (Form 20.2) signed by the expert.
[35] Rule 20.2(15) of the Family Law Rules provides that rule 20.2 applies to the use of expert opinion evidence on a motion for a temporary order under rule 14 or a motion for summary judgment under rule 16 unless the court orders otherwise.
[36] Mr. Singh’s affidavit, dated August 30, 2024, is the only affidavit filed by the respondent that complies with rule 20.2 of the Family Law Rules.
[37] Mr. Gogia’s reports, dated August 16, 2024 and September 3, 2024, also comply with rule 20.2 of the Family Law Rules.
[38] Even though the affidavits filed by Mr. Singh and Mr. Gogia have met the necessary procedural or formal requirements, I must also consider whether they should be admitted in evidence on this motion.
[39] The test for admissibility of expert evidence is summarized by Tobin J. in the case of Sandhu v Sandhu (2023 ONSC 7183 at para. 24) as follows:
Expert evidence is admissible when
- it meets the threshold requirements of admissibility, which are that a. the evidence must be logically relevant; b. the evidence must be necessary to assist the trier of fact; c. there must be no other exclusionary rule; d. the expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the duty to the court to provide evidence that is: i. impartial, ii. independent and iii. unbiased; and e. for opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose;
and
- it passes scrutiny at the gatekeeper stage, and the trial judge determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as a. relevance, b. necessity, c. reliability, and d. absence of bias.
[40] Mr. Singh is the respondent’s lawyer in the India Proceeding and is therefore not independent. Having said that, and although I have concerns regarding Mr. Singh’s independence and the potential for bias, I am prepared to admit his evidence on the basis of necessity and relevance, both of which outweigh the potential risks.
[41] Mr. Gogia is an independent witness and I find his affidavits/reports to be admissible. I do not accept Mr. Grover’s affidavit because he did not provide an acknowledgment of expert’s duty and his affidavit therefore does not comply with rule 20.2. Further, Mr. Grover is not independent and his affidavit is unnecessary given the reports filed by Mr. Gogia.
Summary of the Expert Evidence
[42] It is undisputed that the respondent has filed a petition under the Domestic Violence Act against the applicant. The provisions in the Domestic Violence Act are also not disputed. Specifically:
a. Section 2(a) provides that an “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
b. Section 2(f) provides that a “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
c. Section 2(q) provides that a “respondent” means any adult male who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the [Domestic Violence Act];
d. Section 2(s) provides that a “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alone with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
e. Section 3 provides that “domestic violence” includes any act, omission, or commission that harms or endangers the health, safety, life, limb or well-being of the aggrieved person, including physical, verbal, emotional, sexual and economic abuse.
[43] Mr. Gogia opines that the respondent will not be prejudiced in the India Proceeding should the divorce be granted. In support of this position, Mr. Gogia opines that:
a. It is “unambiguously clear” in the legislation that a “domestic relationship” refers to a relationship between two persons who not only live together in a shared household, but also between two persons who “have at any point of time lived together” in a shared household whether married or not married.
b. In the Judgment passed in “Juveria Abdul Majid Patni v Atif Iqbal Mansoori and Anri” as reported in 2014 (10) SCC 736 (the “Juveria Judgment”), the Hon’ble Supreme Court of India held the following:
An act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the [Domestic Violence Act], including monetary relief under Section 20, Child Custody under Section 21, Compensation under Section 22 and interim or ex parte order under section 23 of the [Domestic Violence Act].
c. In the Judgment passed in “Prabha Tyagi v Kamlesh Devi” as reported in 2022 (8) SCC 90) (the “Prabha Judgment”), the Hon’ble Supreme Court of India held:
Therefore, even when the marital ties cease and there is no subsisting relationship between the aggrieved woman and the respondent against whom the relief is claimed but the acts of domestic violence are related to the period of domestic relationship, even in such circumstances, the aggrieved woman who was subjected to domestic violence has remedies under the [Domestic Violence Act].
d. In the Judgment passed in “Bharati Naik v Ravi Ramnath Halarnkar and Another” as reported in 2010 SCC OnLine Bon 243, the Hon’ble High Court of Bombay at Goa held that the words “has been” and the words “have lived” in the Domestic Violence Act are to be interpreted to mean that past relationships are covered by the Act and that, to interpret the provisions to mean that only subsisting domestic relationships are covered, would render the provisions “Otiose” (i.e. serving no practical purpose or result).
e. The Judgments passed in “Bharat Bavraria and Ors. v. Priyanka Bavaria” as reported in 2017 SCC OnLine Del 8391 by the Hon’ble High Court of Delhi and in “Shashank Pandey and Ors. v. State of U.P.” as reported in 2024 SCC OnLine All 2191 by the Hon’ble High Court of Allahabad also support the above findings.
[44] In contrast, Mr. Singh opines as follows:
It is my view that the Respondent’s complaint under section 12 of the [Domestic Violence Act] could potentially be compromised if her matrimonial status changes from “married” to “divorced”. This alteration might introduce complexities that could negatively impact her petition currently pending in the Courts in New Delhi, India, under the [Domestic Violence Act]. Although the legal implications may be nuanced, there is a strong possibility that finalizing the divorce at this stage could lead to significant challenges for her case, with real risk that the relief sought in India could be jeopardized.
[45] Rather than setting out the nuanced “legal implications”, the “significant challenges for her case” or the “real risk that the relief sought in India could be jeopardized” in his affidavit, Mr. Singh instead focuses on the case law cited by Mr. Gogia and sets out why those cases do not apply to the facts of this case.
[46] Mr. Singh also highlights the case of “Inderjit Singh Grewal v. State of Punjab & Anr”, dated 25 August, 2011 (the “Grewal Judgment”), wherein the Supreme Court of India held that a petition could not be continued under the Domestic Violence Act where the parties had gotten a divorce. Mr. Singh emphasizes that the Grewal Judgment has not been overturned by the case law cited by Mr. Gogia and provides case law in support of the principle that if a subsequent judgment does not discuss or over-rule a previous judgment, the previous judgment prevails.
[47] Of note, Mr. Singh does not provide any opinion as to why the clear wording of the Domestic Violence Act that defines a domestic relationship as being a relationship between two persons who have, at any point of time, lived together in a shared household when they are married, would not apply to this case.
[48] In terms of the Grewal Judgment, Mr. Gogia opines that the case has no bearing on the legal issue raised in this proceeding. Rather, he states that the Grewal Judgment relates to the issue of whether it was permissible for the respondent wife to challenge the Decree of Divorce granted by a Civil Court before a Criminal Court under the guise of a complaint under section 12 of the Domestic Violence Act. In that case, the wife was found to have obtained a “sham decree of divorce” by committing a fraud on the Court, which served to disentitle her from seeking relief under the Domestic Violence Act.
[49] Further, as highlighted by Mr. Gogia in his report, dated September 3, 2024, in the Juveria Judgment, the Hon’ble Supreme Court of India held that the Grewal Judgment was distinguishable and not applicable for the purpose of determining the issue of whether a divorced woman can seek relief against her ex-husband under the Domestic Violence Act. In the Juveria Judgment, which was released in 2014, three years after the Grewal Judgment, the Hon’ble Supreme Court of India held that a divorced woman is not prevented from seeking relief under the Domestic Violence Act once an act of domestic violence has been committed.
[50] In his report, dated September 3, 2024, Mr. Gogia also responds to Mr. Singh’s criticism of the case law he cited in his first report.
Finding Regarding Whether Respondent will be Prejudiced
[51] I prefer the evidence of Mr. Gogia for the following reasons:
a. Mr. Gogia’s explanation and interpretation of the Domestic Violence Act is supported by the wording of the legislation and the relevant case law. Specifically, I am persuaded by Mr. Gogia’s opinion that the Juvari Judgment and the Prabha Judgment are applicable to the facts of this case and that both decisions are clear that a divorced petitioner can pursue remedies under the Act once an act of domestic violence has been found to have been committed during the domestic relationship.
b. I do not find the distinguishments made by Mr. Singh to the case law cited by Mr. Gogia to be persuasive and find Mr. Gogia’s reply to those distinguishments to be convincing.
c. I accept Mr. Gogia’s opinion that the Grewal Judgment cited by Mr. Singh is not applicable to the facts of this case.
[52] Having reviewed the respondent’s petition in conjunction with the expert evidence, I am of the opinion that the respondent will not be prejudiced or disadvantaged in the India Proceeding should the divorce be severed from the corollary issues in this proceeding.
Should the Court nevertheless refuse to grant the severance?
[53] Although I have found that the respondent will not be disadvantaged in the India Proceeding should the divorce be severed, the Court still has discretion to refuse to grant the relief sought.
[54] The respondent submits that the applicant has shown flagrant disregard for following court orders, which includes unilaterally changing the support amounts owed to the respondent without seeking the consent of the respondent. The applicant denies this allegation and submits that he has complied with all court orders and made his support payments in a timely manner. He submits that the respondent has never had to bring a motion for enforcement and has confirmed that all support payments are up to date.
[55] There is no endorsement or Court finding before me that supports the respondent’s submission that the applicant has disregarded court orders or that the respondent has been forced to bring enforcement measures on account of support arrears. The respondent has also confirmed that the support payments are current. I am therefore not persuaded by this argument.
[56] The respondent further submits that the trial is scheduled for October 7, 2024 and it is therefore premature to grant the divorce. Moreover, the respondent is concerned that once the divorce is granted, the applicant will delay this matter. The applicant again denies this and submits that it is the respondent that who has demonstrated a pattern of delay.
[57] Although the matter is scheduled for trial on October 7, 2024, there is a possibility that it may not proceed. Further, should the trial proceed, it may be many months before a decision is rendered.
[58] Based on the record before me, I do not find any evidence that the applicant has delayed this matter or is in breach of any court order. In contrast, there is evidence that suggests the respondent has delayed the recent questioning and has not yet complied with the disclosure order of Mills J., dated May 21, 2024. I am therefore also not persuaded by the respondent’s argument that the applicant has breached court orders or delayed this proceeding.
[59] Further, the divorce is inevitable, whether it be granted in the immediate future or at trial in October. The parties have been separated for over 4.5 years and both parties requested a divorce in the pleadings. The respondent did not provide any evidence regarding when a determination of her petition in the India Proceeding might occur. The petition appears to be in the early stages. Consequently, it is unlikely that the India Proceeding will be heard prior to the determination of this proceeding.
[60] Overall, I am not persuaded that there is any basis for the Court to exercise its residual discretion to deny the severance.
Decision
[61] I find that the applicant has met his onus of establishing that neither spouse will be disadvantaged by an order severing the divorce from the corollary issues in this proceeding. There is no basis for the Court to exercise its residual discretion to deny the severance and I therefore decline to do so.
[62] Accordingly, an Order shall issue splitting the divorce from the corollary issues in this proceeding. The applicant or the respondent shall be at liberty to obtain a divorce over the counter at their own cost, on filing affidavit evidence, on the basis of one-year separation.
[63] On a temporary and without prejudice basis, the applicant, at his cost, shall provide the respondent with equivalent health benefits from Manulife to the ones she currently has and shall maintain the benefits for the respondent without interruption.
[64] I encourage the parties to settle costs. Should the parties be unable to resolve costs of the motion, the applicant may deliver written costs submissions of up to 2 pages (excluding his costs outline and any offer(s) to settle) within 15 days, and the respondent may deliver her written costs submissions on the same terms within a further 15 days. Reply submissions on costs may not be delivered without leave.
Yamashita J. Released: September 26, 2024