Vancouver Punjabi Speaking Family Lawyers Explain Divorce Before Trial
Our Punjabi speaking family lawyers regularly deal with financial disputes and divorces between couples who have connections to India and BC. Our highly acclaimed Vancouver Punjabi speaking family lawyers often need to deal with property division issues involving lands, monies and jewellery overseas in India as well as here in BC. Make sure you hire a senior family lawyer who understands the complexities of a case involving your South Asian culture.
It is critical that you meet with our Vancouver Punjabi speaking family lawyers if you are contemplating a divorce and or making a support, property division and restraining order claim.
Did you know a Punjabi speaking family law case involving a divorce can have a divorce granted before trial in cases where a one year separation has passed?
Our Vancouver Punjabi speaking family lawyers know that the BC Supreme Court ( not the Provincial Court) has the power to grant a divorce before trial if the prerequisites to obtain it under The Divorce Act are met unless the party who opposes such a pre-trial divorce proves the divorce occurring before trial would prejudice their claim for financial relief or other claims.
Our Vancouver Punjabi speaking family lawyers are happy to summarize a recent case involving a Punjabi speaking family breakup where the parties had potential criminal and family law proceedings being contemplated in India. This case shows what evidence is required before a divorce application pre-trial will be blocked for causing prejudice.
In this week’s Supreme Court decision in M.S.K. v. S.K.K., The trial judge granted a divorce before trial because the parties had been separated for over 1 year, there were no bars to divorce and no proper evidence to prove the wife would suffer prejudice in BC or India if it was granted.
Here is what the judge decided:
[15] Similar information was presented to the court in Boyal v. Boyal, 2014 BCSC 2261. In that case, the wife sought to adjourn the divorce proceedings until after her claim in India was resolved.
[16] Mr. Justice Ball found that the wife’s affidavit did not contain any admissible evidence of the prejudice she would face, given that it did not state the source of her belief that she would not be entitled to continue her claim in India if the divorce was granted. Even if she had properly indicated that her counsel in India was the source of her belief, however, Mr. Justice Ball pointed out the following problems that would have remained:
[17] More fundamentally, however, even if Ms. Boyal had properly indicated that Mr. Sharma was the source of her information and belief, Mr. Sharma’s attached document is neither an expert legal opinion nor in affidavit form. It is thus not evidence.
[18] While a court may consider unsworn statements of counsel on evidentiary matters, it is not appropriate to consider such statements where a fact in issue is of “singular importance”: see Winter v. Winter, [1993] B.C.W.L.D. 2901, [1993] B.C.J. No. 2275 at para. 35; Harbin Ding Culture v. Newman et al., 2004 BCSC 107 (CanLII) at paras. 10-11. The effect of a divorce order on Ms. Boyal’s action in India is a fact of singular importance in this action and it is thus not appropriate to consider Mr. Sharma’s unsworn statements.
[19] Indian law is not a matter of fact well known in this Court of which judicial notice could be taken. In order for the Court to appreciate the effect of a divorce order on Ms. Boyal’s Indian claims, the opinion of an expert witness trained in Indian family law is required. An expert is a person, who as a result of training and experience in a particular area has acquired a level of knowledge sufficient to advise a court concerning particular circumstances within that area of expertise: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at 20, 25. Apart from the statement in the document attached to Ms. Boyal’s affidavit that Mr. Sharma is “her legal counsel in India”, there is no information concerning his knowledge, experience or special study of Indian law, and whether he has ever given expert evidence accepted on any prior occasion in Indian or Canadian Courts. Ms. Boyal has thus failed to satisfy the Court that Mr. Sharma is an expert on Indian family law.
[17] Mr. Justice Ball therefore held that the wife had failed to meet the terms of the earlier order to obtain evidence of the effect of a divorce order on her claims in India, so the divorce was granted.
[25] In the present case, there is no suggestion that any foreign real property would be affected by the granting of a divorce. There is no claim for maintenance. The only thing that the respondent says will be affected by the order sought is her claim for her wedding expenses and the return of her dowry. The basis for this opinion is a letter from counsel in India, which cannot be relied on as an expert opinion for the reasons set out above.
[26] The claimant has established the prerequisites for divorce based on the fact that the parties have been separated for over one year, there has been no collusion, and there is no reasonable possibility of reconciliation. The information tendered on behalf of the respondent is deficient as an expert opinion on Indian law and, in any event, it insufficiently sets out the nature of the foreign proceedings and any impact that a divorce would have on them. The claimant has therefore shown no prejudice or risk of prejudice associated with a divorce order.
[27] The order for divorce is granted, effective 31 days from today.
Our Vancouver Punjabi speaking family lawyers know the law and the culture of our South Asian clients. Call us in downtown Vancouver at 604-602-9000.
