BACKGROUND

In this case, the Applicant's father sought to sever the divorce from all corollary relief, which the Respondent's mother opposed. The Respondent claimed that granting a divorce at this stage would prejudice her ongoing claim against the Applicant in India (the "India proceeding").

The couple, married in 2000 in New Delhi, separated in 2020, and have lived in Canada since 2003. They have two children, aged 18 and 13, who primarily reside with the Respondent. Temporary child and spousal support arrangements are in place, with the Applicant paying substantial amounts, including private school tuition for the children.

In 2023, the Respondent filed a domestic abuse claim in India under the Domestic Violence Act, seeking damages for alleged incidents that occurred between 2000 and 2002. The Applicant argued that the India proceeding is merely an attempt to delay the divorce and prevent him from moving on with his life, as he intends to marry his fiancée, who has relocated to Ontario for work.

The Respondent contended that severing the divorce would undermine her legal case in India. She also argued that the Applicant has a history of non-compliance with court orders and expressed concerns that, if severance were granted, the Applicant would delay the resolution of the remaining issues in this proceeding.

LEGAL PRINCIPLES

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:

1. Neither spouse will be disadvantaged by the order; and
2. Reasonable arrangements have been made for support of any children of the marriage.

There is no dispute that reasonable arrangements have been made for support of the children. The Respondent conceded 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.

The law pertaining to rule 12(6) is summarized by Raikes J. in the case of Zantingh v. Zantingh 2021 ONSC 2312 as follows:

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. 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. 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

The court considered the evidence of Mr. Gogia when determining whether the Respondent would be disadvantaged by severing the divorce from the corollary issues. Mr. Gogia, an Advocate of the Hon'ble Supreme Court of India with over 37 years of legal experience, provided affidavits dated August 16, 2024, and September 5, 2024. His interpretation of the Domestic Violence Act was supported by the wording of the legislation and relevant case law, particularly the Juvari and Prabha Judgments. These judgments establish that a divorced petitioner can still pursue remedies under the Act if domestic violence occurred during the relationship. The court found this analysis directly applicable to the facts of this case.

Having reviewed the expert evidence provided, the court concluded that severing the divorce would not disadvantage or prejudice the Respondent in the ongoing India proceeding. The evidence presented by Mr. Gogia demonstrated that the India proceeding could still proceed regardless of the divorce being granted in Canada.

The court also declined to exercise its residual discretion to deny the severance. The court concluded that there was no evidence that the Applicant delayed this matter or is in breach of ay court order. In contrast, the evidence actually suggested that it was the Respondent who delayed the recent questioning and has not yet complied with the most recent disclosure Order.

Accordingly, the court ordered that the divorce be split from the corollary issues in this proceeding. The court noted:

[t]he 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. Overall, I am not persuaded that there is any basis for the Court to exercise its residual discretion to deny the severance.