Patel v Patel, 2016 ABQB 64

Court of Queen ’ s Bench of Alberta Citation: Patel v Patel, 2016 ABQB 64 Date: 20160129 Docket: 4803 171350 Registry: Edmonton Between: Amitkumar Patel Plaintiff - and - Jenika Patel Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] This application for a divorce judgment raised questions about the nature of marriage at common law, the lex loci celebrationis of a marriage, and the elements of a counterclaim.

However, because the respondent resides in India and does not appear to have the financial resources for comprehensive legal assistance, the reasons for decision are provided by way of endorsement, partly to reflect the fact that full argument has not been heard on the questions. [ 2 ] On March 20, 2015, Amitkumar Patel filed a statement of claim for divorce from Jenika Patel. The statement of claim asserts that the marriage was performed on May 9, 2014, that the parties started to cohabit on May 2 nd 2014 and that the parties ceased cohabiting on May 18, 2014.

The grounds for divorce are stated to be one year separation. The Statement of Claim asserts that Mr. Patel is not claiming spousal support from Ms. Patel.

[ 3 ] On March 25, 2015, Mr. Patel applied for, and received, an order for service ex juris of his claim on Ms. Patel who continued to reside in Gujarat, India. An affidavit of service was sworn on May 18, 2015. [ 4 ] After having been served with the Statement of Claim, Ms. Patel sent documents to the court, which documents were recorded by the court as being filed on August 4, 2015. The documents themselves state that, on May 19, 2015, Ms. Patel had sent an original document to the court by way of facsimile. In her documents Ms.

Patel stated, in part: I would like to highlight that our parents and mediators arranged our meeting on 4 th May 2014 and marriage happened on 9 th May 2014. Due to short period, only few relatives were presence. Purpose of this marriage was to get my passport and other documents ready. . . .My parents already booked marriage hall for 15 th December 2014 for my grand marriage as per Indian society rules. Due to Amit’s denial to go ahead with marriage, my parents were forced to cancel the same. The copy of cancellation of marriage had is attached . . .

Amit has mentally harassed me and my family members sitting at Canada via phone and his Sister, Father and Mother wrongly torched me when I asked justification of his verbal communication. [Ms. Patel has used the word “torched” in an earlier affidavit she filed in these proceedings. In one of the two statements from the mediators who dealt with the parties and their families, the mediator writes: Suring September 2014, Jenika’s parent updated me that jenika represented that Amitkumar Patel started torturing her over phone and she was remaining very very sad and frustrated.

While discussing with her, I noticed that Amitkumar Patel wa denying for marriage and Jenika was trying her level best to go ahead with marriage.” While the court is not certain what Ms. Patel means when she writes “torched”, it is clear that she does not mean that Mr. Patel set fire to her.] Kindly punish him financially, mentally and physically as his behavior, attitude and decision hurtled me and my family badly. I may be reimbursed financial damaged done by him (minimum half of Amit’s CTC per annum).

Mental damaged done by him to me and my family cannot be expressed in money terms. [ 5 ] On September 17, 2015, Mr. Patel brought a family application – returnable on November 3, 2015 - asking for an order striking the Statement of Defence filed by Ms. Patel or, in the alternative, for an order severing the divorce from the corollary relief, and for an order giving him leave to apply for a desk divorce. In support of his application, Mr. Patel filed an affidavit in which he swears that he and Ms. Patel “never lived together”. He further swears: 5.

The Defendant and I decided on or around September 9, 2014 that we did not want to continue to be married. Although we were already married, we had planned a second more elaborate wedding event at a later date to celebrate with friends and family but we cancelled this plan. . . . 11. The Defendant and I never co-mingled any of our finances. . . . Any gifts which were exchanged due to custom for our marriage were returned . . . 13.

After I returned to Canada the Defendant eventually agreed to sign a Divorce of marriage according to Hindu scriptural rituals or Divorce Deed. . . . [ 6 ] The Divorce Deed which is attached as an exhibit to Mr. Patel’s affidavit is headed “India Non-Judicial” and dated “corresponding to 5 th April 2015”. The Deed includes the following:

(1) Our engagement/chandla ritual was held on dt. 09/05/2014 as per Dhodia caste customs and rituals at . . . After that, with the consent of both our parents and elders, as the first party had to go immediately abroad for a job, it was decided to hold the wedding with great fanfare in November-Decemeber and decided to begin married life. For this, with the consent of parents and elders we were married as per India’s Hindu Marriage Act according to Hindu scriptural rituals on dt. 09/05/2014 at [a different location than that mentioned in connection with the engagement/chandla ritual] . . .

(2) As per Indian rules, . . . . . the first party left immediately for a job in a foreign county. And the contracting parties will begin married life after getting married with great fanfare.

(3) After that, both parties talked only on the phone. Meanwhile, the second party, appearing to be upset, made her presentation in her own way in front of the elders. The elders, after hearing the presentations of both parties, finding that mind-match will “not” happen, postponed the marriage, which was to be held with great fanfare on 15 December 2014, as decided earlier, and finally when reconciliation didn’t happen, both parties decided to separate with the consent of parents and elders. Due to this, the divorce of marriage performed according to Hindu scriptural rituals in the . . . and divorce deed is being done. . . .

(5) Marriage could not have taken place with fanfare, but betyween us parties there is no question at all of the second party making any type of complaint in Indian court or court outside Inda, or application or claim in any type of institution against the first party for all future food, clothing, cash, immovable as well as movable property. Even then if any part does voice any such complaint application or claim, it will be rendered null and void.

(6) Between both parties, marriage has not been celebrated with fanfare but the marriage done per Hindu scriptural rituals on dt. 09/05/2014 at . . . its divorce has taken place, so hereinafter both parties can live our lives the way our hearts like and a decree from Indian court for divorce will have to be taken. [ 7 ] On November 3, 2015, [order filed on November 5, 2015] this court ordered that Ms. Patel’s documents not be considered as a Statement of Defence and gave leave to Mr. Patel to apply for a “desk” divorce, i.e. an application for a divorce judgment without an oral hearing.

[8] On November 23, 2015, this court received further materials from Ms. Patel. In a hand-written letter, Ms. Patel writes, in part: “So far, during 4th May 2014 to till date, neither Amitkumar Patel nor his family members made adverse remarks on my characters.. . . Therefore, any other false allegation without written proof will not be accepted. I request judge/lawyer not to accept such affidavitwithout written proof.” [9] In typed materials which accompany the handwritten letter, Ms. Patel states, in part,

(1) It was Amitkumar Patel’s decision not to go ahead with marriage life and I have no other alternative but to accept the facts.

(4) I already signed “Divorce Deed” on 26th April 2015. So Amitkumar Patel can file in court after 26th April 2015 to get courtorder and not before that as there was no written agreement. . . .

(5) I and my family suffered in all respect as below. . . Mentally – I disturbed very much as Amitkumar Patel denied to go ahead with marriage life . . . Financially – I lost one year of my career for entire life span. I wanted to go for Master of Pharmacy but got opportunityfor marriage with Amitkumar Patel and I changed my plan. . Thus, I was delayed by one yar in my professional career and lostopportunity to warn. Socially – Without any real cause, I will be treated as Divorcee in Indian society as per Indian culture and thus lost mysocial status which I build over a period of time.

This affects my family members also to certain extent. [Emphasis in original] [10] Ms. Patel also includes with her materials, statements from the two mediators who were involved with the parties and theirfamilies. Each of the mediators makes a statement to the following general effect:

(10) Thus, divorce deed was signed by Jenika on 26th April 2015 and witnessed by Mrs. A.G. Patel in presence of Notary “Piyushkumar P Patel”. Thus, as per law of land i.e. India, Amitkumar Patel and Jenika are no longer married since 26th April 2015 witheach other and both cn get court order submitting this document i.e. “divorce deed”. [11] The desk divorce application came before me in December, 2015. In an affidavit filed in support of his application fordivorce, Mr.

Patel swears proof in solemn form about the existence of a marriage between the parties; he also relies on a Certificate ofRegistration of Marriage from the Government of Gujarat which states that the parties “have furnished the particulars in Memorandumdeclaring that their marriage has been solemnized on 09-05-2014 at Kaliyawadi and that the same has been registered this day . . . at . . .of Register of Marriages maintained under the Gujarat Registration of Marriages Act, 2006” He states that the date of separation betweenthe parties is September 9, 2014 and confirms that the parties never cohabited.

He states that “no application for spousal support is beingmade at the present time.” [12] I wrote to Mr. Patel, always copying Ms. Patel, on December 23, 2015 and on January 11, 2016 with certain questions arisingon the one hand with respect to the nature of the ceremony held on May 9, 2014, and, on the other, with respect to what may be a claimfor spousal support for pre-with great fancare marriage ceremony expenses and financial disadvantage. On January 8, 2016, Mr.

Patelstated that he would have no objection to a severance order in relation to collateral relief, but he continued to be of the view that even themore recent documents filed by Ms.

Patel were not either a Statement of Defence nor a Counterclaim. [13] As to the nature of the ceremony held on May 9, 2014, on the basis that the documents submitted refer to two ceremoniesbeing held on that date, I have concluded that at least one of the ceremonies was a marriage ceremony according to Indian civil law. [14] The material submitted by the parties indicates that the parties treated the civil marriage ceremony as one which had the legaleffect of marriage, but the cultural effect of a formal engagement or a formal commitment to marriage, i.e. by consent, the marriage wasnot consummated, and, by consent, the parties would not start to live together in a physical conjugal relationship until after the “marriagewith great fanfare” which was to be celebrated in December, 2014.

The first legal issue for this court to decide is, therefore, whether thesituation as described was a marriage as Canadian common law understands that term. We know that non-consummation is not, alone, areason for concluding that a marriage did not occur and that, therefore, a divorce cannot be granted. Indeed, mere non-consummationdoes not appear to be a sufficient ground for granting a decree of annulment. We know, as well, that the elements of “marriage” atcommon law are perhaps not easy to define.

What does appear to be clear is that, based on conflicts of laws principles, the existence of amarriage is to be determined by the lex loci celebrationis. Finally, we know that the issue of whether a marriage was entered intoprimarily for immigration reasons is a different issue altogether from the issue of whether a marriage was entered into. [15] The pertinent question then becomes, on the facts here, does Indian civil law recognize the ceremony referred to in theCertificate of Registration of Marriage as a marriage?

Although it would, of course, be best to have expert opinion on Indian law toanswer that question, the materials submitted by the parties satisfies me that the answer to that question is: Yes. In coming to thisconclusion, I have relied on the statements of the mediators which I have taken to mean that, as of May 9, 2014, the parties weretechnically married according to Indian civil law. [16] In this general context, it should also be noted that C.

Davies’ text, Family Law in Canada, is authority for the propositionthat “if there is evidence of a ceremony having taken place but the parties have not cohabited thereafter it will be presume that themarriage is valid as to form by virtue of the maxim omnia acta praesumuntur: Lauderdale Peerage (1885) 10 H.L.C. 692. We mightalso note the decision of the Supreme Court of Canada in Lewkowicz v Korzewich (SCC), [1956] S.C.R. 170 whichpresumes the essential validity of a marriage.

[17] The next question is whether Ms. Patel’s documents could be considered to be a counterclaim for spousal support. Thisquestion raises both technical and substantive issues. On the technical side, the documents presented by Ms. Patel don’t meet therequirements of the Rules of Court. However, case law establishes that, in an appropriate situation, non-compliance with the Rules can bewaived; indeed, a court could even dispense with pleadings.

The objective of pleadings is to secure justice between the parties byrequiring them to set out the facts with sufficient clarity and precision that each knows the facts which the other has to meet. [18] On the substantive side, Ms. Patel’s claim for damages for the cancellation of the “with great fanfare marriage ceremony” isperhaps a claim for damages that would be considered by Canadian divorce law as a support claim arising from the breakdown of themarriage. More problematic is Ms.

Patel’s claim for damages as result of injury relating to status. [19] Case law charts the treatment of the law relating to the breach of promise to marry in Canadian law. The Supreme Court ofCanada discussed the common law action for breach of the contract to marry in Smallman v Moore (SCC), 1948 S.C.R.295. In Dupuis v Austin 1998 N.B.J. No. 516, a trial judge made the following comments: 7 There are old cases that recognize a common law action for general damages for breach of promise of marriage. See for exampleLeBlanc v.

Wetmore, (NB CA), [1944] 2 D.L.R. 130 (N.B.C.A.) (12 year engagement, damages assessed at$2,100.00); Thomson v. McEwen, (NB CA), [1953] 1 D.L.R. 151 (N.B.C.A.) (breach of promise by a naval officerwho was already married, damages assessed at $8,000.00); and McBride et al. v.

Johnson, (SCC), [1962] S.C.R. 202(breach of promise and four years cohabitation until his death in an automobile accident, damages assessed at $10,000.00). 8 Those cases arose before the so-called "sexual revolution" of the 1960's and before the repeal in 1969 of the law that made it a crimein Canada to sell or advertise contraceptives or even to publish instructions on birth control. (Criminal Code of Canada S.C. 1892, c. 29,s. 179(c); S.C. 1913, c. 13, s. 207(1)(c); amendment of s. 150(2)(

c) by S.C. 199, c. 41, s. 13) 9 Also those cases were before the enactment of the modern Divorce Act, Family Services Act and Marital Property Act.

Thatlegislation does not recognize any right to recover general damages for breach of a contract of marriage or general damages fordisappointment following the breakdown of a marriage. 10 As our law does not recognize a right to claim general damages for breach of a marriage, it is questionable whether our law shouldstill recognize a right to claim general damages for breach of a promise of marriage. 11 The rationale for allowing women to sue for general damages for injured feelings in a claim for breach of promise of marriage hasbeen described as follows: "In the case of breach of promise of marriage, the intended bride has been deprived of the conjugal bliss that was the supposed object ofthe contract;...".

Brown v. Waterloo Regional Board of Commissioners of Police (1983), (ON CA), 43 O.R.(2d) 113,at p. 119, cited in Vorvis v. I.C.B.C., (SCC), [1989] 1 S.C.R. 1085, at p. 1115. "To the woman, more especially, it is all important that the relation shall not be put an end to. Independently of the mental painoccasioned by the abrupt termination of such an engagement, the fact of its existence, if followed by such a termination, must necessarilyoperate to her serious disadvantage.

During its continuance others will naturally be deterred from approaching her with matrimonialintentions; nor could she admit of such approaches if made; while the breaking off of the engagement is too apt to cast a slur on one whowas thus treated." Frost v. Knight (1872), L.R. 7 Ex. 111 at pages 115-116, cited in LeBlanc v. Wetmore, (NB CA),[1944] 2 D.L.R. 130, at p. 132 (N.B.C.A.). 12 But our modern law is gender-neutral.

An action for breach of promise is not gender-neutral when it is based on obsoletestereotypical sexist thinking that "the intended bride has been deprived of the conjugal bliss" and that "to the woman, more especially, itis all important that the relation shall not be put an end to". 13 To allow such an action would perpetuate such archaic sexist notions. In my view that would offend the equality provision ofsection 15 of the Canadian Charter of Rights and Freedoms.

The Charter includes: 15(1) Every individual is equal before and under the law and has the right to the equal protection and benefit of the law withoutdiscrimination, and in particular, without discrimination based on ... sex .... 14 In England Parliament abolished actions for breach of promise of marriage in the discretely named Law Reform (MiscellaneousProvisions) Act 1970, U.K. 1970, c. 33, s.1. The Legislature of New Brunswick has not yet formally abolished it.

The closest theLegislature has come is to say that the proposed new Small Claims Court of New Brunswick "does not have jurisdiction in an action ...for ... breach of promise of marriage...". Small Claims Court Act, S.N.B. 1997, c. S-9.1, (not yet in force). 15 In my opinion the old common law action for general damages for breach of promise of marriage is inconsistent with moderngender-neutral legislation and inconsistent with the equality provision of the Charter. It is also inconsistent with the temporary nature ofmany modern marriages.

It is like the now abolished cause of action by a husband for loss of consortium of his wife: "... an anachronistic procedure which is no longer relevant in today's society, and which has been described as a being a ghost in the legalattic which bestirs itself from time to time to rattle its chains. But unless and until that ghost has been exorcised by the statute law, it willremain to haunt the corridors of the Courts". Coles v. Roach (1980), (PE SCTD), 25 Nfld. & P.E.I.R. 172; 68 A.P.R.172; 112 D.L.R.(3d) 101 (McQuaid, C.J.,P.E.I.S.C.) cited in Davenport v.

Miller (1990), (NB KB), 108 N.B.R.(2d)336, at p. 343, 70 D.L.R.(4th) 181 (N.B.Q.B.). 16 For these reasons in my view a claim for general damages for breach of promise of marriage is now obsolete and is no longerrecognized by New Brunswick law. [20] Some Canadian jurisdictions, such as Ontario, appear to have abolished the right to sue in contract for breach of a promise to

marry: see, Newell v Allen 2012 ONSC 6681 , at para. 20 . Alberta does not appear to be one of those jurisdictions. The action of breach of contract to marry appears to survive in provinces like British Columbia; see, Zimmerman v Lazare 2007 BCSC 626 . [ 21 ] For the following reasons, I have concluded that this is not an appropriate situation in which to exercise my discretion to consider Ms. Patel’s documents to constitute a counter-claim for spousal support: - Ms. Patel agrees that it is appropriate to grant a divorce.

A judgment in that cause of action, on which the parties agree, need not be temporally linked with either a claim for collateral relief (spousal support) or for a claim for an independent cause of action (breach of contract to marry). This time factor is particularly important in the situation here where Mr. Patel faces time limits in October 2016 in relation to his immigration process. Therefore, Ms. Patel’s claim should proceed as a separate claim rather than a counterclaim; - In Canadian law, a party who is unsuccessful generally pays costs to the successful party.

Where, as here, the cause of action claimed by a party is not clearly established, a court should not force that party into a lawsuit the result of which may be that the party would become liable to pay costs. Ms. Patel must be given the opportunity to determine whether she wishes to commence a lawsuit in Alberta to achieve the remedies she seeks; - Ms. Patel may have one or more causes of action available to her in India. Ms. Patel must be given the opportunity of comparing the requirements and results available in each jurisdiction.

She should not be forced to proceed in Alberta, which may not be the most advantageous jurisdiction from her point of view. [ 22 ] In the result: - I conclude that the parties were married on May 9, 2014, - I grant a divorce judgment on the narrow basis that the parties have been separated for at least one year, - I explicitly do not make any finding with respect to who “caused” the separation, - I do not address the issue of spousal support, and, - I declare that the pleadings consist only of the statement of claim filed by Mr. Patel. [ 23 ] Ms.

Patel should know that Alberta imposes time limits within which she must bring any claim which she may decide to bring in this jurisdiction for any cause of action which she claims; her failure to commence an action within those time limits is likely to result in the striking out of her claim. Dated at the City of Edmonton, Alberta this 28 th day of January, 2016. J.B. Veit J.C.Q.B.A. Appearances: Kristy Moore, Sharek Logan & van Leenan LLP for the Plaintiff, Mr. Patel Ms. Patel on her own behalf