In a recent ruling by the Superior Court of Justice, Ontario, the court decided that a criminal proceeding pending in another jurisdiction cannot act as a bar for the husband to obtain divorce in Canada and move on with his life

Brief background – Parties got married in India and came to Canada within 1 month of their marriage. They lived together and a matrimonial dispute arose between them. Wife tried hard to implicate husband in criminal case in Canada without success. Wife also filed criminal case against husband and his family members in India. In the meanwhile, husband filed a simple Application seeking Divorce from wife before the Ontario Superior Court of Justice. The Application was duly served upon wife and her counsel.

Despite giving ample opportunities wife failed to file an Answer to the Application in Ontario Canada and was pursuing her complaint in India. Husband then set the matter down for divorce and obtained the Divorce Order in Ontario, Canada. The Divorce Order was served on wife and her counsel, who filed an urgent motion seeking setting aside of the Divorce Order inter alia (amongst other things) on the grounds that the Divorce obtained in Canada would impact her rights to proceed against husband in India.

To support her position, wife took several grounds once of which was a letter from her lawyer in India who opined that if divorce is granted in Canada it will impact the criminal proceedings in India. One of the leading case relied upon by the counsel for the wife in setting aside the default judgment was Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194.

The husband strongly opposed the motion, presented correct position of law, and countered the letter. He pleaded that he must be allowed to move on with his life.

After arguments, the court while dismissing the wife’s motion held that:

The Mountain View factors incline strongly away from the relief sought by the Respondent (wife). Counsel for the husband has brought my attention to several British Columbia cases which consider and reject similar arguments as made by the Applicant here: Sohi v. Sohi, 2017 BCSC 678; (M.S.) v. K. (S.K.), 2015 BCSC 2123 at paras. 20-24.

Is this a case in which a discretion should nonetheless be exercised to refuse the divorce on the grounds that to grant it would prejudice the wife in the Indian criminal litigation? There is a natural concern that without good and sufficient reason, a proceeding in another jurisdiction ought not to stand in the way of the husband’s right to move on with his life and to obtain a divorce. Although there are no doubt situations in which the prejudice is glaring and fairly leads to the result that a divorce ought not to be granted, this is not one of them.

As in the two British Columbia cases relied upon by the husband, the reasons upon which the divorce order is sought to be rescinded or stayed are insubstantial. A mere ghost of prejudice cannot be enough to frustrate the husband’s request for a divorce.

The citation of the case is 2023 ONSC 688 and the link to the Endorsement is found here.

The husband was represented by Saurabh Singhal

of Singhal Law Professional Corporation. 

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