Sohi v. Sohi, 2015 BCSC 1043

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sohi v. Sohi, 2015 BCSC 1043 Date: 20150618 Docket: E038275 Registry: New Westminster Between: Gurleen Kaur Sohi Claimant And Pawanjit Singh Sohi, Dalbir Singh Sohi and Davinder Kaur Sohi Respondent Before: The Honourable Mr. Justice Armstrong Reasons for Judgment Counsel for the Claimant: P. Virk Counsel for the Respondents: S.S. Grewal Place and Date of Trial: New Westminster, B.C. September 10 - 14, 17, 18, 2012 September 5, 6, 9 - 11, 2013 April 7 - 11, 2014 April 14, November 10, 2014 Place and Date of Judgment: New Westminster, B.C.

June 18, 2015 Introduction [ 1 ] This is a family law proceeding in which the parties were granted a divorce in September 2012 and now seek to resolve issues relating to jewellery (the “jewellery”) given by the parties’ families on the occasion of their marriage. The jewellery is described in

Schedule “A”. [ 2 ] The parties’ claims regarding the division of all other family assets and support have been abandoned. There are no children of the marriage. [ 3 ] In order to clearly differentiate between each of the parties in these reasons, I will use their first names. By using first names, I mean no disrespect to any of the witnesses in this case but I do so to ensure clarity. [ 4 ] The claimant Gurleen is a 33-year-old registered nurse and the respondent Pawanjit is a 34-year-old chartered accountant. These parties were married on July 4, 2009 and separated on December 15, 2010.

They were divorced September 18, 2012. [ 5 ] The respondents Dalbir and Davinder are Pawanjit’s parents. [ 6 ] The jewellery is composed of jewellery given: (

a) by Gurleen’s family to Pawanjit, to Gurleen and to members of Pawanjit’s extended family, and (

b) by the respondents and their extended family to Gurleen, to Pawanjit and to Gurleen’s extended family. [ 7 ] The agreed value of the jewellery is $57,000.

[ 8 ] The claimant alleges that after the marriage celebrations, all of the jewellery was given to Davinder for safekeeping and remained with her except for times when Gurleen used the jewellery while attending social events or when travelling. Throughout the marriage, the parties lived with Pawanjit's family in Delta and when Gurleen separated from Pawanjit, she alleges the jewellery remained with Davinder. [ 9 ] The claimant commenced proceedings with a Notice of Family Claim on May 17, 2011 and an Amended Notice of Family Claim (the “Claim”) was filed June 5, 2012.

In the Claim Gurleen seeks an order requiring the respondents to return the wedding jewellery or damages for wrongful detention and conversion. She also claimed specific performance, restitution and damages on a quantum meruit basis. [ 10 ] All three respondents filed responses to the Notice of Family Claim and Pawanjit filed a response and counterclaim on June 22, 2011. Neither Dalbir nor Davinder filed a response to Gurleen’s amended claim. The respondents deny Davinder kept the jewellery and claim that Gurleen took all of the jewellery from the home.

Pawanjit claims that the jewellery is a family asset as defined by the Family Relations Act, R.S.B.C. 1996, c. 128 [ Act ] and that he is entitled to a one half interest in it. He seeks damages and reapportionment of the family assets or a compensation order. [ 11 ] During the trial, Gurleen amended her Response to Counterclaim to clarify her position regarding the jewellery. [ 12 ] The content and order of the pleadings were raised by the parties as significant issues in this trial.

The respondents contended that the Claim is substantially different from the original Notice of Family Claim. [ 13 ] The claimant says that when she filed the original claim, she did not seek recovery or return of the jewellery given by the respondent’s family to her and Pawanjit because in her culture when marriages fail, wedding jewellery is typically returned to the side of the family from which the gift originated. Thus, when she filed her original claim, she did not seek recovery of any of the jewellery given to the parties by the respondents or their family members.

Pawanjit’s counterclaim sought recovery of all of the family jewellery, including the items given by Gurleen’s family and his own, and, in response the claimant expanded her claim to include all of the jewellery gifted at the time of the marriage.

The claimant viewed Pawanjit’s pleadings as a departure from her cultural expectation, so she decided to mirror the counterclaim and seek recovery of all of the jewellery she contends is in the possession of Davinder. [ 14 ] I have reviewed Gurleen’s evidence on this point and I am satisfied that Gurleen’s amended pleadings do not reflect any admission that she was in possession of all of the items described in her original claim and the other items described in Pawanjit’s response. I am not influenced by the order and content of Gurleen’s amendments in a manner that detracts from the credibility of her claim.

Issues [ 15 ] The issues to be decided on this trial are: (

a) which of the parties has possession of the jewellery; (

b) is the jewellery a family asset under the Act ; (

c) if the jewellery is a family asset under the Act , how should the asset be divided. Evidentiary Issues [ 16 ] There is general agreement between the parties that Gurleen received the items of jewellery described in

Schedule “A”. Items numbered 1 to 15 were gifts from members of Gurleen’s family and items 16 to 41 were gifts from Pawanjit’s family and extended family.

Although the value of this jewellery is $57,000 there was no assignment of value to any specific piece and the principal question to be decided in this trial is whether all of the jewellery is in the possession of Davinder or Gurleen. [ 17 ] It is also common ground between the parties that, if Davinder is found to be in possession of the jewellery, she will be required to return the wedding jewellery to Gurleen or pay damages for conversion subject to Pawanjit’s claim that the jewellery is a family asset under the Act . [ 18 ] Otherwise, most of the pertinent facts are seriously in dispute.

Evidence was given over 16 days and illustrated diametrically opposed versions of the events concerning the whereabouts of the jewellery. There were disparate accounts of the marriage and the break up given by the parties and each accuses the other of untruthfulness. [ 19 ] The parties are members of the Indo-Canadian community and cultural factors have likely influenced their behaviours throughout this dispute. For example, this was an arranged marriage and Gurleen insisted on giving detailed evidence of mistreatment she experienced while living with Pawanjit and his family.

She contends that this history will inform the Court of the cultural influences on the family dynamics and will be helpful in the Court’s credibility assessment of the witnesses. [ 20 ] It is interesting that during discussions concerning Gurleen’s behaviour and unhappiness in the marriage, and addressing settlement issues, Gurleen does not appear to have had an independent voice in the process. The discourse was between Dalbir, Davinder, Pawanjit, Gurleen’s uncle Dr.

Kulbir Billing and her brother Aman Billing. [ 21 ] The factual findings in this trial turn on the reliability and credibility of the parties and Gurleen’s two family members who testified.

[ 22 ] The complexity of the issues is evident from Gurleen’s 144 pages of written submissions and the respondent’s 55 pages of argument. I intend to set out generally the positions and testimony of the parties and will address the alleged inconsistencies and evidentiary challenges when I consider the evidence as a whole. Evidence [ 23 ] In 2008 Gurleen resided in Ontario and was in the final stages of obtaining her bachelor of science in nursing (BsN) degree. She was scheduled to complete this four-year program in 2009.

In the Indo-Canadian culture, women are typically married in their early 20s and there was concern in the Billing family that Gurleen was almost beyond her marriageable years. Her parents pressed the idea of marriage as soon as she finished her education and in the summer of 2008 they placed an advertisement seeking a prospective husband for Gurleen. [ 24 ] Earlier in 2008 Pawanjit had been scheduled to marry another woman but that marriage did not happen. Davinder had purchased jewellery in India for that wedding.

Her purchases included an engagement ring, a wedding band, a gold diamond set, necklace and earrings with gold and diamond bangles, a golden Firoza set, necklace and earring with matching Kundan bangles. All of these items are included in

Schedule “A”. [ 25 ] Davinder did not bring these items back to Canada herself but asked relatives who were immigrating to Canada to bring this jewellery in for her.

The purpose of asking her relatives to bring this jewellery to Canada as their own property was to deceive customs into believing they were the true owners of the jewellery, thus avoiding taxes and duties on the wedding jewellery Davinder was importing and intended for her son and his new spouse. [ 26 ] Eventually she took a second trip to India to purchase more jewellery. [ 27 ] In October 2008 Dalbir and Davinder responded to Gurleen’s parents’ advertisement with an interest in introducing their son to Gurleen. [ 28 ] Before meeting his prospective wife, Pawanjit contacted Gurleen and spoke with her by telephone several times.

These calls resulted in a general expectation that this plan could lead to a marriage and in October 2008 the Billing family travelled to British Columbia to visit the Sohi family. During this meeting, Gurleen and Pawanjit met and decided to marry. The parties held a commitment ceremony (referred to as the Takha) to formalize their intention to marry.

At this ceremony, Gurleen received a necklace and earrings from Dalbir and Davinder, and Pawanjit received $500 cash from Gurleen’s family. [ 29 ] The wedding was scheduled for July 4, 2009, which followed Gurleen’s university graduation. [ 30 ] An engagement ceremony was held July 1, 2009. Gurleen and Pawanjit each received jewellery from the Billing family and the Sohi family. [ 31 ] Gurleen and Pawanjit were married on July 4, 2009 and as part of that event, Gurleen received jewellery from her parents and from her extended family. She did not receive any jewellery from the Sohi family that day.

Part of the wedding festivities continued at Gurleen’s relatives’ home in Langley. At this point Gurleen said her mother handed a bag of jewellery to Davinder in the presence of some 50 people.

The specific identity of these items was not described by either spouse but included the jewellery received in October 2008 and at the engagement ceremony on July 1, 2009. [ 32 ] There was other jewellery worn by Gurleen during the wedding and she said she gave these pieces to Davinder after the wedding day events were over and they had returned to the Sohi home. [ 33 ] It was customary in the parties’ tradition that guests would give money to the newly married spouses. Gurleen had a purse containing money which she handed to Davinder.

Davinder denies receiving the money and Gurleen said she did not see the purse again. [ 34 ] On July 5, 2009 there was a reception for the newly married couple. At this reception Gurleen and Pawanjit received jewellery from the Sohi family and from the Sohi extended family. Gurleen said that after the completion of these ceremonies the jewellery given to her at all three events was left with Davinder and remained in her possession, except when she gave the jewellery to Gurleen for use at a particular event.

Davinder denies receiving all but four sets of jewellery which Gurleen gave her and she placed in her safety deposit box. [ 35 ] There is no dispute that Davinder received a portion of the jewellery at or around this time. She denied receiving all 41 items listed on

Schedule A and denied retaining any of the claimant’s jewellery after December 2009. Gurleen’s wedding jewellery was held by her mother and given to Davinder at a public ceremony. [ 36 ] Gurleen took some jewellery on her honeymoon with Pawanjit to Paris but left the bulk of it with Davinder. [ 37 ] On returning to B.C. the couple began living in the respondents’ home in Delta. Between August 2009 and December 2009 Gurleen obtained employment as an orthopedics nurse at a local hospital. During this time the entire family attended several social engagements, including weddings, in British Columbia and Alberta.

They also travelled to Calgary, Lake Louise, Banff, Edmonton, Los Angeles, Las Vegas, San Francisco and Penticton. Some of their trips were oriented to those social occasions and others were vacations. [ 38 ] The claimant testified that she also used different pieces of the wedding jewellery when attending these social events. She testified that she obtained jewellery from Davinder each time the family was planning to attend an event or she required it when intending to travel. She said that on some occasions she would take three sets of the jewellery to an event and would use them on successive occasions.

Gurleen said that Davinder typically made the final decisions about her clothing and choice of jewellery for each event the family attended. Davinder denied exercising that type of control or responsibility.

[ 39 ] After each time Gurleen went to an event or on vacation, she said the jewellery was returned to Davinder and she understood it was to be placed back in the safety deposit box. She had no personal knowledge of when or if Davinder placed the jewellery back into the safety deposit box. [ 40 ] On one occasion the parties went to Calgary where Gurleen received additional gifts of gold bangles; she said she also returned these bangles to Davinder. [ 41 ] Pawanjit described the handling of the jewellery differently.

He said that all of the jewellery was given to Gurleen and kept by her in their bedroom until July 8, 2009. This was one day before their departure for Paris. He said that Gurleen handed four sets being the heavier more valuable sets to Davinder and asked her to keep them safe for her. [ 42 ] These four items given to Davinder Pawanjit are described as: (

a) a gold diamond necklace with earrings – the engagement set given to Gurleen by Pawanjit’s parents; (

b) the necklace given to Gurleen by Pawanjit’s parents on their engagement day; (

c) the wedding set Gurleen wore on the wedding day; (

d) the gold turquoise stone set given to Gurleen by Pawanjit’s parents on the day of the reception. [ 43 ] He testified that no other items were given to his mother. He said his mother kept the jewellery until after Gurleen requested its return and after she received it from Davinder, the jewellery remained permanently in their bedroom. [ 44 ] He said that in August 2009, following their return from the honeymoon, Gurleen asked Davinder for some of the jewellery. Pawanjit and Gurleen were travelling with the family to a wedding in Victoria and he said that Gurleen asked for two sets from her safety deposit box.

He was present when his mother took the jewellery out of the box and delivered it to Gurleen. He testified that on another occasion in September 2009, the parties were planning to attend a wedding in Vancouver with his uncle who was coming from California. On this occasion, Gurleen requested a second set of wedding jewellery which his mother gave to her. [ 45 ] The claimant went to India in December 2009 and asked to take another set with her.

His mother said “you gave me four sets I have given you three sets and this is the last”. [ 46 ] He said that Gurleen was using the wedding jewellery on a regular basis and they were attending one event every week; he said she wore wedding jewellery on each occasion. She testified that her work

schedule throughout the marriage was fixed at four days on and four days off, usually involving 12 hour shifts. Thus, she said that she was not able to attend family functions “every week.” [ 47 ] He testified that after December 2009 Gurleen stored all of the jewellery in boxes that were kept in their bedroom. She kept one jewellery box on the dresser and another jewellery box in the closet on a shelf behind their clothing. He recalls Gurleen using two clear jewellery boxes with one used for her earrings.

In total there were seven jewellery boxes kept in their bedroom. [ 48 ] Pawanjit did not wear jewellery on a regular basis and he obtained a jewellery box where he kept his bangle, chain and wedding ring. He also kept a bracelet. Pawanjit currently has his ring but not the other items. [ 49 ] Pawanjit says he and Gurleen did not have a safety deposit box and there were no locked cabinets in their bedroom, although he had encouraged her to use a safety deposit box to store her jewellery.

He said she declined to obtain a safety deposit box; she did not want one because of the repetitive need to obtain pieces of jewellery for upcoming events. Gurleen said there was no discussion about obtaining a safety deposit box because the jewellery was already in Davinder’s box. [ 50 ] Some of Gurleen’s jewellery was described as “every day jewellery” which included diamond earrings and her engagement ring and these were not kept by Davinder in the safety deposit box.

Gurleen said she kept this type of jewellery in boxes in her bedroom. [ 51 ] On or about December 28, 2009 several pieces of the jewellery were appraised before Gurleen began a vacation to India. Gurleen disputes that she initiated the appraisal of the jewellery; she denies going to the appraiser’s store but Davinder insists Gurleen came with her. On December 29, 2009 Gurleen left on her trip to India to visit with her parents and returned in early January, 2010. December 2009 to November 2010 [ 52 ] Over the months from the fall of 2009 until the fall of 2010, the marriage relationship deteriorated.

The respondents expressed concern about certain aspects of Gurleen’s behaviour in the household; for example they complained that Gurleen was making excessive telephone calls to her mother. [ 53 ] In April 2010, Gurleen’s brother Aman attended a meeting with Pawanjit, Dalbir and Davinder to discuss Gurleen’s role in the deterioration of the marriage. Aman was told that Gurleen needed to follow the house rules and stop going out alone. [ 54 ] Following these discussions, Aman told his sister she needed to change her approach to the family and follow the rules in their house.

He told her to make an extra effort to make the marriage work. In the fall of 2010, Dalbir called Aman again and complained that Gurleen continued to misbehave. He told Aman that he was required to come to B.C. and apologize for her actions. She was alleged to have called Dalbir a “cheap bastard”, which apparently upset Pawanjit and his family greatly. [ 55 ] In September 2010, members of the Billing family, including Gurleen’s father and brother, again met in B.C. to address the continuing deterioration in the relationship.

Dalbir described a long list of complaints including that Gurleen was spending too much money. Mr. Billing observed that his sister was under considerable stress. He decided to stay out of the dispute because he believed he

needed to support Gurleen. Nonetheless, he encouraged her to change her behaviour and try to make the marriage work. [ 56 ] Gurleen was a full time orthopedic nurse with an income of $59,000 in 2009 and of $79,000 in 2010 and 2011. Pawanjit was self-employed in an accountancy practice and said that his annual salary was $90,000.

They maintained a joint bank account into which they deposited their salaries and paid bills including various credit card charges of Dalbir and Davinder. [ 57 ] On the evening of November 29, 2010 there was an altercation between Gurleen and Pawanjit which appears to have been the culmination of simmering discord between them. She described feeling marginalized in the family; in part because she was told her family was of lesser means than the Sohi family. She felt the sting of criticism from the family that her family had not done enough for their wedding festivities and that she was not suitable for their son.

Throughout the course of their marriage, Dalbir and Davinder were critical of Gurleen’s behaviour. Gurleen felt that Pawanjit was not supportive when his parents were critical of her. The two occasions Gurleen’s family came from Toronto to visit British Columbia; they tried to persuade her to be compliant and less obstinate. Because she was a woman, she felt that she was required to submit and she found this process eroding of her confidence.

She said she felt like a child in the marriage and nothing she did was good enough for her husband’s parents. [ 58 ] She claimed that the respondents were over vigilant of her personal expenses and on one occasion searched her purse to find feminine products she had purchased which in their opinion were excessive. [ 59 ] Gurleen summarized her feelings toward the end of the marriage; she said she had no say in the affairs of the family.

She felt under the control of Pawanjit and his parents and it appears that, for whatever reason, the atmosphere in the home during this short marriage soured and became unpalatable for Gurleen. [ 60 ] Pawanjit testified that Gurleen was very disrespectful to his father. He complained that she was insisting on having more information about household finances than was proper. He told her that she should not be concerned with the budgets or state of their assets. He felt that her outbursts regarding finances and his parents were disrespectful.

I took from his description of these events that he believed Gurleen’s random criticisms and outbursts were irrational and destructive of the family order in the Sohi home. [ 61 ] It was clear to me that a failed marriage in the Indo-Canadian community would reflect adversely on the family and their reputation. Davinder was involved in a discussion regarding their marital discord and told Gurleen that she would be their marriage counsellor.

Suffice to say that Gurleen’s unhappiness in the marriage reached a boiling point on November 29, 2010 with a physical altercation with Pawanjit. [ 62 ] Pawanjit said that he and Gurleen were watching television; he went to their bedroom to sleep and she came to their room and accused him of being disrespectful and told him the marriage was not working. He claims she grabbed his neck and said she could not stand him. He pushed her off and called his mother to their room. He said Gurleen was squeezing his neck.

He said Gurleen snapped and grabbed a suitcase and began taking things from her closet and placing them in the suitcase. He was taken aback by the suddenness of Gurleen’s declaration. He decided to allow her to pack and permitted her to use some garbage bags to pack her things. While she was packing, Pawanjit recalled Gurleen saying “I’ve had enough” and “I’m out of here”. He said she grabbed suitcases and dumped all of her things into them. He said she had five big suitcases and two small ones in addition to a number of garbage bags that she filled with the contents of her dresser.

He said he saw Gurleen place jewellery into the bags. [ 63 ] Gurleen said that Pawanjit was asleep when she came to bed and she asked him about going to bed alone. She put her arm around his neck, in an apparent affectionate gesture, and was pushed away. He pushed Gurleen away with considerable force, pushing her off the bed and onto the ground. She felt threatened. Pawanjit is five feet eight inches tall and weighs about 180 - 200 lbs. Gurleen is five feet four inches tall and weighs 120 lbs. [ 64 ] Pawanjit was angry and agitated and Gurleen was embarrassed.

Harsh words were exchanged between them and she was anxious to leave. Gurleen and Pawanjit report different accounts of what transpired next; Gurleen said Pawanjit told her to pack and leave whereas Pawanjit described Gurleen announcing she was leaving and began packing.

In any event, she described being humiliated at being told to leave the house and he said this did not happen. [ 65 ] Gurleen packed her clothes and other items in a suitcase and filled several green bags; she said she did not have any of the wedding jewellery in her possession at the time except for a pair of diamond earrings. [ 66 ] Gurleen telephoned to her aunt living in Langley and asked to be picked up. The aunt did not come. She also phoned her mother in India; her mother told her to hang on because she should not make a rash decision and walk out.

She eventually spoke with her uncle and her brother who told her to sleep in the respondent’s home and he would talk to her the next day when she was calm. [ 67 ] When Gurleen spoke with her brother on the telephone she expressed her view that she could not continue to live in the environment of the Sohi home. She told him that the marriage was over. Aman ascertained that she was determined to leave the marriage but told her not to do anything silly.

He told her to stay in the respondents’ home and go back to work until he could come pick her up. [ 68 ] Aman then had a telephone conversation with Pawanjit and Davinder and expressed his view to Pawanjit that the marriage was over. He told Pawanjit that the family tried to make it work but were unsuccessful. He asked the respondents not to expel Gurleen from the home until he was able to come and pick her up. [ 69 ] He told Pawanjit he wanted the return of jewellery his family had given to the Sohi family.

He said “well, if that’s the case, the jewellery that my parents gave you and your family, give it to her and she leaves and then we do the divorce paperwork”. At that point, each family was expecting to receive the jewellery given by them to the others’ family members. Pawanjit apparently agreed but said that it would take time to collect some of the jewellery, and his mother would have to obtain the other jewellery from the safety deposit box. [ 70 ] Aman told Pawanjit to gather all of the jewellery, and he would travel to Delta to collect Gurleen and the jewellery.

Pawanjit asked Aman to fax a list of the jewellery. Aman drafted a list, confirmed the contents with his mother and sent an email to Pawanjit setting out a list of the jewellery given to Gurleen by her family including five sets. It also contained a list of jewellery given by the

Billing family to Gurleen, Pawanjit and the Sohi family. He did not include in the list those gifts given to Gurleen by the Sohi family. The list was completed and sent without confirming the contents with Gurleen. [ 71 ] In a subsequent telephone call to Pawanjit, Aman asked if the jewellery was ready and was told that the jewellery had not been obtained from the other family members that Dalbir was away and would be returning December 15 and that Pawanjit wanted to wait for his father to return before exchanging the jewellery.

After emailing the list on December 2, 2010, Aman did not communicate with the respondents except by email. He did not receive any written response to his December 2, 2010 email. [ 72 ] Pawanjit told Aman he was gathering the jewellery from his other family members, but it would take some time.

Aman reported this plan to Gurleen. [ 73 ] This exchange, which is denied in part by the respondents, is a point of contention. [ 74 ] At this time Dalbir was in India and there was an expectation that Gurleen and Aman would wait for him to return on December 15 before they settled the issue of jewellery and Gurleen leaving the house. Between November 29 and December 15 Gurleen worked her usual four 12 hour shifts; these involved two day shifts followed by two evening shifts. [ 75 ] On December 15, 2010 Gurleen was aware that Dalbir had returned from India in the morning.

She testified that she spoke to him and said she had been waiting for his return to obtain the jewellery she wished to take with her. He said he was not going to give the jewellery to her because of the way she had behaved. She alleged that she was feeling unsafe and contacted the Delta police. I have concluded that Gurleen overstated her situation when she called the police and her more serious concern was to be able to recover her jewellery and keep her everyday jewellery when she left. [ 76 ] The police arrived at the residence and located Gurleen in an upstairs bathroom.

Constable Lindsay Quistber was one of the officers to come to the Sohi home. Gurleen told her that she wanted to leave the home with her wedding jewellery but did not feel safe because she assumed the respondents were offended at her decision to end the marriage. Davinder was in the home but Pawanjit was at work. [ 77 ] There was a discussion involving the constable about the jewellery, who owned it and who had rights to it. At this time, the claimant’s bags were still in the bedroom where she had left them on November 29.

The constable left Gurleen and returned with Davinder, who said that they did not know what Gurleen was intending to take with her. The constable offered to let Davinder inspect four suitcases but the constable did not have time to stay for a full search. [ 78 ] She recalled Davinder went through one of Gurleen’s bags and objected to some jewellery that Gurleen was taking. The constable did not want to be embroiled in this property dispute and advised of Gurleen to leave with the basic items she required to live away from the home. She remembered there was a dispute about what Gurleen could take from the home.

She recalled that Gurleen did not object to a cursory search conducted of the suitcase that she was taking. The constable could not recall observing any ring or bracelet falling out of claimant’s bag. [ 79 ] Davinder searched Gurleen’s suitcase but not her purse. There was some jewellery in the bags she had packed and was taking; and Davinder objected to her taking the jewellery she said belonged to Pawanjit. Davinder demanded the return of Gurleen’s engagement ring which she apparently handed to Davinder. Davinder asked for Gurleen’s earrings but Gurleen refused this request.

Eventually Gurleen took one suitcase and none of the garbage bags. The parties disagree on the details of those events. [ 80 ] Dalbir alleges that Gurleen also took two garbage bags. Gurleen denied taking any garbage bags.

Constable Quistber recalled the claimant carrying only one suitcase from the home but she could not be certain that garbage bags were not also taken. [ 81 ] Dalbir and Davinder waited until December 16 to search the claimant’s remaining bags and did not find any wedding jewellery. [ 82 ] Later, Gurleen contacted Davinder with a view to obtaining the balance of her clothing and things left in the home. Davinder said that they would think about returning these items. [ 83 ] Dalbir spoke to Aman on December 19 and during this discussion Aman denied that Dalbir said that Ms. Sohi had taken jewellery.

He said that his December 2 list contained only a description of Gurleen’s jewellery and the jewellery that was given to the Sohi family by the Billing family. Dalbir did not offer to meet Gurleen and exchange any jewellery; he said they needed more time to gather together the jewellery for delivery to Gurleen. They did not speak again. [ 84 ] Nonetheless, Mr. Billing prepared and sent an email on January 31, 2011 to Dalbir requesting the return of Gurleen’s personal clothing, work uniforms, shoes, jewellery and other items packed into the bags.

He described Gurleen’s experience in the respondent’s home in these words: “your family already tortured her for over a year”. Gurleen did not authorize the sending of this letter and did not see a copy until February 11, 2011. It seems to have inflamed Dalbir who perceived the allegation as an attack on his reputation. Although it was an attack on the respondents, the document was not published to any persons other than the parties to this litigation. [ 85 ] Gurleen did not recover the items left behind until December 2011, when she attended with three friends to collect her property.

The respondents eventually delivered Gurleen’s property after negotiations between counsel. The respondents insist that they were prepared to return those items but insisted on receiving an apology for Aman’s January 31 email before agreeing to return Gurleen’s property. [ 86 ] In view of Davinder and Dalbir’s insistence on searching Gurleen’s bags with the intention of preventing her from taking any jewellery from the house, Gurleen’s fears about her parents-in-law impeding her departure appear to have been well founded.

This conclusion is echoed by the fact that they refused to allow her to retrieve the multiple bags of personal belongings left in the house until she was able to negotiate the opportunity to collect her property in December 2011. [ 87 ] The dispute concerning ownership of the jewellery extant on December 15 was between Gurleen and Pawanjit; nevertheless,

Davinder and Dalbir interjected themselves into the dispute and became the primary participants in attempting to restrict the property shewould be permitted to take. [88] Gurleen said that she did not remove any of the wedding jewellery from the Sohi home between November 29 and December15 or at all. Pawanjit said he did not see Gurleen remove jewellery from the home between November 29 and December 15. Pawanjitalleges that Gurleen said she had already removed the jewellery from the home before November 29. Pawanjit said that between thosedates he did not check the contents of the suitcases and bags in the home.

Although he alleges that she told him that the jewellery wasalready out of the house by November 29, I find irrational that Pawanjit did not search the contents of the bags after he purportedlywatched Gurleen place “all of the jewellery” into the bags or suitcases during her emotional outburst and telling him that the marriagewas over and she was leaving.

He had ample opportunity to later examine the contents of those bags when she was away at work duringthe intervening 16 days before December 15. [89] Pawanjit insisted that Gurleen was keeping $57,000 worth of jewellery in their bedroom without any security in place at a pointin time when she was well on her way to leaving the home. He also alleged that the some 41 listed items he believed to form part of their“insurance against hard times” were still with her.

It is an unreasonable inference that he did not search her bags and suitcase during theinterval because he was aware that the jewellery was with his mother. [90] By the time Gurleen left on December 15, it is clear to me that the jewellery was not in any of the bags or suitcases that she hadpacked on November 29. She denies telling Pawanjit that she had removed the jewellery to another location; he insists that she said this. Credibility [91] There is conflicting evidence on many facts essential to the analysis of this case.

I cannot decide the issue of which partypossesses the jewellery without first assessing the credibility of each party. [92] Gurleen challenges the credibility of the respondents generally and questions both their honesty and reliability in delivering theirversions of events concerning the jewellery. [93] The respondents attack Gurleen's honesty and reliability concerning many details of the events transpiring during this shortmarriage. [94] The major controversies in this proceeding are whether Gurleen delivered all of the wedding jewellery to Davinder forsafekeeping and whether that jewellery remained in Davinder’s possession when she separated from Pawanjit and left the home onDecember 15, 2010. [95] Both sides give diametrically opposed evidence.

It is clear that one party is being untruthful and, as between Gurleen andDavinder, the burden of proof must be discharged by Gurleen on the balance of probabilities. [96] Credibility cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction ofthe truth. The task is to assess the reliable evidence given by each witness and weigh the inherent probabilities and improbabilities oftheir versions of the events.

The test of the truth of the story of a witness must be its harmony with the preponderance of the probabilitieswhich a practical and informed person would readily recognize as reasonable in that place and in those conditions: Faryna v. Chorny (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at para. 11. [97] The distinction between reliability and credibility can be important. It is not the witness’s belief in the truth of their evidence ortheir sincerity that must be considered but the reliability of that evidence is paramount: R. v. Norman, (ON CA), 87C.C.C. (3d) 153 at 14; R. v. W.S., (ON CA), 90 C.C.C. (3d) 242; R. v.

C.J.S., (PE SCAD), [1996]P.E.I.J. No. 8 at para. 35. [98] In R. v. H.C., 2009 ONCA 56, Watt J.A. for the court addressed the distinction between credibility and reliability. He said: [41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of thewitness’s testimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point.

Credibility, on the other hand,is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22O.R. (3d) 514, at 526 (C.A.). [99] In Bradshaw v. Stenner, 2010 BCSC 1398, Dillon J. described a process that helpfully guides trial judges in the difficult task ofassessing credibility of witnesses. She said: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v.

Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,

and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Faryna v. Chorny, (BCCA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Faryna]; R. v.

S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)).Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a wholeand shown to be in existence at the time (Farnya at para. 356). [187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand-alone’ basis, followedby an analysis of whether the witness’ story is inherently believable.

Then, if the witness testimony has survived relatively intact, thetestimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version ofevents is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions” (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), (AB QB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. [100] I will deal with an assessment of each witness’ credibility in turn. The Claimant [101] I will first deal with the Gurleen's credibility. The respondents advanced a great many reasons for doubting her credibility. In myview, some of those allegations are without merit and I do not intend to review them. I have previously addressed the respondents’submissions regarding the following pleadings issues: (

a) Gurleen’s original Notice of Family Claim included claims for spousal support, interest in residential property and Pawanjit’sbusiness; (

b) Gurleen’s original Notice of Family Claim did not specify the jewellery that she now alleges to be in the possession of therespondents; (

c) the timing of Gurleen’s application to amend her Notice of Family Claim indicates that this is a fictitious claim; (

d) Gurleen’s filing of an amended response to the counterclaim indicates a lack of credibility, truthfulness and honesty; (

e) Gurleen’s contention that the amendment to the response to the counterclaim was required because of typographical and draftingerrors is untrue. [102] I find that the respondents’ contentions on these points do not influence my assessment of Gurleen’s credibility. [103] The other issues raised by the respondents to attack Gurleen’s credibility are as follows: (

a) Gurleen’s evidence at discovery and at trial was evasive, contradictory and tailored to advance her case; (

b) Gurleen failed to call corroborative evidence on the issues of who had possession of the jewellery; (

c) Gurleen’s decision to testify after her uncle and brother testified severely undermined her credibility; (

d) Gurleen’s testimony that the jewellery was handed by her mother to Davinder was contradicted by her later statement that she,herself, had given the jewellery to Davinder. Adverse Inference [104] The respondents’ argument under (

b) is framed as an attack on Gurleen’s credibility. However, I have interpreted that argumentto suggest that I should draw an adverse inference against Gurleen because she did not call corroborative evidence on the issue of whohad possession of the jewellery. [105] This point is addressed in J. Sopinka, S.N. Lederman and A.W.

Bryant, The Law of Evidence in Canada, 2d ed. (Toronto:Butterworths, 2009) where the authors state at 377: In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails toprovide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed tobe willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witnessover whom he or she has exclusive control and does not explain it away.

Such failure amounts to an implied admission that the evidenceof the absent witness would be contrary to the party’s case, or at least would not support it. [106] The principles governing adverse inferences were discussed in R. v. Jolivet, 2000 SCC 29 at paras. 25-28, where the Court said: 25. The general rule developed in civil cases respecting adverse inferences from failure to tender a witness goes back at least to Blatchv.

Archer (1774), 1 Cowp. 63, 98 E.R. 969, where, at p. 65, Lord Mansfield stated: It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced,and in the power of the other to have contradicted. 26. The principle applies in criminal cases, but with due regard to the division of responsibilities between the Crown and the defence,as explained below. It is subject to many conditions. The party against whom the adverse inference is sought may, for example, give asatisfactory explanation for the failure to call the witness as explained in R. v.

Rooke (1988), (BC CA), 40 C.C.C. (3d)

484 (B.C.C.A.), at p. 513, quoting Wigmore on Evidence (Chadbourn rev. 1979), vol. 2, at para. 290: In any event, the party affected by the inference may of course explain it away by showing circumstances which otherwise account forhis failure to produce the witness. There should be no limitation upon this right to explain, except that the trial judge is to be satisfiedthat the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for nonproduction. [Italics inoriginal; underlining added.] 27. The party in question may have no special access to the potential witness.

On the other hand, the "missing proof" may lie in the"peculiar power" of the party against whom the adverse inference is sought to be drawn: Graves v. United States, 150 U.S. 118 (1893), atp. 121. In the latter case there is a stronger basis for an adverse inference. 28. One must also be precise about the exact nature of the "adverse inference" sought to be drawn. In J. Sopinka, S. N. Lederman andA. W.

Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 297, para. 6.321, it is pointed out that the failure to call evidencemay, depending on the circumstances, amount "to an implied admission that the evidence of the absent witness would be contrary to theparty's case, or at least would not support it" (emphasis added), as stated in the civil case of Murray v. Saskatoon, (SKCA), [1952] 2 D.L.R. 499 (Sask. C.A.), at p. 506. The circumstances in which trial counsel decide not to call a particular witness mayrestrict the nature of the appropriate "adverse inference".

Experienced trial lawyers will often decide against calling an available witnessbecause the point has been adequately covered by another witness, or an honest witness has a poor demeanour, or other factors unrelatedto the truth of the testimony. Other jurisdictions also recognize that in many cases the most that can be inferred is that the testimonywould not have been helpful to a party, not necessarily that it would have been adverse: United States v. Hines, 470 F 2d 225 (3rd Cir.1972), at p. 230, certiorari denied, 410 U.S. 968 96 (1973); and the Australian cases of Duke Group Ltd. (in Liquidation) v.

Pilmer &Ors, [1998] A.S.O.U. 6529 (QL), and O'Donnell v. Reichard, [1975] V.R. 916 (S.C.), at p. 929. [107] In Tower Waterproofing v. Mondiale Development Ltd., 2013 BCSC 1772 Savage J. (as he then was) described the principlesconcerning any inference that may be drawn from the failure of a party to call a witness who might have pertinent evidence.

Thesecomments are apposite to this case: [22] It is a longstanding principle of law that an adverse inference may be drawn if, without sufficient explanation, a litigant fails tocall a witness who might be expected to give supporting evidence: Buksh v Miles, 2008 BCCA 318 at para. 31, 296 D.L.R.(4th) 608. However, as the failure to call a witness may reasonably be open to different

interpretations, an adverse inference should onlybe drawn when it is warranted in light of all the circumstances: Davison v Nova Scotia Government Employees Union,2005 NSCA 51 at para. 73, 231 N.S.R. (2d) 245. [23] Generally, an adverse inference should only be drawn in regard to the non-production of witnesses whose testimony would besuperior in respect of the facts to be proved: Bronson v Hewitt, 2010 BCSC 169 at para 329, 58 E.T.R. (3d) 14.

However, anadverse inference should generally not be drawn where the witness is equally available to both parties: Zawadzki v Calimoso, 2011BCSC 45 at para 149. [108] Gurleen testified that the wedding jewellery was handed by her mother to Davinder at the wedding event in Langley in front of50 guests. The respondents seem to argue that the failure to call evidence from any one of the 50 guests undermines Gurleen’s credibilityon this point.

Gurleen submits that the respondents’ relatives formed the majority of guests at the wedding festivities and the respondentshave not called any of these people to testify. [109] None of those 50 people were identified but likely comprised members of the respondents’ families and the claimant’s families.Either party was free to call witnesses to the July 4, 2009 celebration and the apparent handover of jewellery.

Neither counsel identifiedany of the 50 people nor did they explain reasons why one or more of these people was not called to testify. [110] Thus, I am not prepared to draw an adverse inference against the claimant or the respondents for the failure of either to produceone or more of the 50 people to testify. In the context of this event, I cannot infer that an adverse inference should be made. [111] The respondents also seek an adverse inference by reason of Gurleen’s failure to call her father to give evidence, who was inBritish Columbia at the time of separation.

Gurleen apparently met her father at that time and the respondents contend that he wouldhave had relevant information on the issues. [112] There is no evidence to suggest that Gurleen’s father was a witness to any of the events concerning the jewellery. He may havebeen present when the jewellery was handed to Davinder on July 4, but there is no evidence of this point. [113] Savage J. described an adverse inference as applicable to “a witness who might be expected to give supporting evidence” whofails to be called without sufficient explanation.

I am unable to conclude that Gurleen’s father would have been able to give supportingevidence in all the circumstances and I will not draw an adverse inference from his failure to testify. [114] Finally, the respondents contended that the failure of the claimant to call her mother to testify should reflect negatively onGurleen’s credibility and reliability.

They contend that the claimant’s mother was a central figure in placing all of the wedding jewelleryinto Davinder’s possession, and that she could give helpful evidence about the contents of the bag of jewellery given to Davinder at oraround the marriage festivities. [115] Counsel for the claimant has explained the absence of evidence from Gurleen’s mother on the basis that Gurleen was in the bestposition to explain the details concerning the passing of the jewellery from her mother to Davinder.

Counsel for the claimant alsosuggested that Gurleen was not asked why she had not called her mother as a witness and this excuses her omission. [116] Gurleen testified that her mother handled a bag containing the jewellery given to her up until July 4 and that her mother handedthe jewellery to Davinder. There is no issue that Davinder received four sets of wedding jewellery by the date Gurleen and Pawanjit lefton their honeymoon; the issue is whether all of the wedding Jewellery was handed to Davinder at the Langley residence.

[ 117 ] The claimant has not given a reasonable explanation for why her mother would not have testified on this very important factual issue. Gurleen’s mother would have been able to give supporting evidence including a description of all of the Jewellery in the bag she handed to Davinder on July 4. There is common ground that Davinder received four sets of wedding jewellery. One area of disagreement is whether Davinder also received the other pieces of jewellery referred to in

Schedule “A”. It is this detail that only Gurleen’s mother, and possibly Gurleen, could have knowledge. Although Gurleen’s counsel argued that any evidence Gurleen’s mother could have given on this point was adequately covered by Gurleen and there was no need to corroborate that evidence; I do not agree. [ 118 ] It is also only reasonable to assume that Gurleen would have been able to secure the attendance of her mother to address this important issue.

This is not a case where Gurleen’s mother could have been compelled to attend by the respondents and, in the absence of an explanation of her non-attendance, it seems to me that an adverse inference can be drawn that Gurleen’s mother would not have supported Gurleen’s evidence that the bag contained more than the four jewellery sets when handed to Davinder. I conclude that the claimant’s mother might not have known precisely what jewellery was in the bag when it was delivered to Davinder.

Thus as described in Jolivet at para. 28 , there is an implied admission that the evidence of Gurleen’s mother would be contrary to Gurleen’s case or, at least, may not have supported it. [ 119 ] The effect of this adverse inference is that Gurleen’s mother would not have been able to corroborate Gurleen’s testimony and the claimant’s case must be made out solely on her evidence.

I do not to draw the inference that the claimant’s evidence is unreliable because she failed to call her mother as a witness, but I must assess her overall credibility and reliability with the view that her mother’s evidence may not have supported her claim.

Other Issues [ 120 ] The respondents argue that there are other issues with respect to the claimant’s credibility, in particular pertaining to certain inconsistent and evasive testimony she gave. [ 121 ] The respondents argued that claimant was uncertain about the sequence of delivering jewellery to Davinder and gave contradictory evidence when stating that she handed over all of the jewellery to Davinder after the reception. In her other testimony, Gurleen said she received gifts of jewellery from the Sohi family and extended family at the reception on July 5, 2009.

She said that she handed this jewellery to Davinder after the reception. [ 122 ] On this latter inconsistency, respondents’ counsel referred to two passages, September 14, 2012 page 58 and September 17, 2012 page 7. This critique of the claimant’s evidence is not entirely correct or fair. On September 14, 2012 the claimant testified that her mother gave the wedding jewellery to Davinder. She said that it was part of the wedding tradition that her family would give gifts, including the wedding jewellery, to Davinder.

Counsel’s reference to the September 17 evidence must be read in the context of the preceding passages. The claimant was asked if she gave jewellery to Davinder before leaving on her honeymoon. She said the jewellery she had received “on or around the wedding I’d already given it to my mother-in-law, there was nothing to give out of the wedding jewellery to her prior to me leaving for Paris”. Earlier counsel suggested that “neither you nor the – – nor your mother gave your mother- in-law any of the jewellery that you received on the engagement day or the wedding day at – –“.

The claimant said “that is incorrect”. [ 123 ] When she told respondents’ counsel that she had already handed over all of the wedding jewellery to Davinder, she was describing the different occasions when the jewellery was given to Davinder and was stating that by the time she left for Paris, all of her jewellery had been given to Davinder and was not in her possession.

In my view, the claimant’s responses concerning this issue were not inconsistent in the context of the entire exchange and does not adversely impact the claimant’s credibility. [ 124 ] The claimant testified that she would choose outfits she wished to wear to upcoming events and the jewellery she would like to use. She would discuss this with Davinder who would make the final decision regarding wardrobe and jewellery. The respondents say this cannot be true because the claimant was not in a traditional marriage as she claimed.

The fact that the claimant travelled to India in December 2009, alone, and decided which pieces of jewellery she would take with her, was an indication she was not subject to the dictates of her mother-in-law. [ 125 ] I am not persuaded that because Gurleen personally chose the jewellery she intended to take to India without any of the Sohi family in her company, I should infer that Davinder was not managing those choices for the events the family attended in Canada. [ 126 ] The extent to which Gurleen was “controlled” by her mother-in-law is highly subjective.

The parties would likely have very different views on what would constitute a “traditional” marriage given the generational gap between the parties and the cultural differences emerging from different upbringings. Gurleen may have perceived Davinder’s actions as oppressive and controlling, while to Davinder those same actions were reasonable expectations of a daughter-in-law in the Indian community.

I interpret this as a difference in perspective as opposed to dishonesty or an effort to mislead the court on the part of Gurleen, and I decline to make a finding that it adversely affects Gurleen’s credibility. [ 127 ] The claimant testified that when she returned wedding jewellery to Davinder, she believed the pieces were returned to the safety deposit box. The respondents challenge the claimant’s assertions in this regard. They say: (

a) On July 18 th the claimant was wearing earrings given to her by her parents but the safety deposit box was not opened from July 17 - 19 th ; (

b) The box was opened July 15, 2009 to deposit the four jewellery sets given to Davinder and was next opened July 31, 2009, before the family left for the Victoria wedding; (

c) The claimant attended the MAJHA night function on October 23, 2009 and was seen wearing a gold necklace and earrings. The safety deposit box was not accessed in the month of October 2009; (

d) The claimant attended her birthday on August 15, 2009 and wore jewellery. The safety deposit box was not accessed in or around

that date; (

e) On September 20, 2009 the claimant was seen wearing Firoza earrings at a family function. The safety deposit box was opened on September 3, 2009 when one of the engagements sets was withdrawn but the box was not accessed around September 20, 2009. [ 128 ] The times when Gurleen confirmed that she received jewellery from Davinder do not precisely accord with the recorded dates that Davinder accessed the safety deposit box. Gurleen had no personal knowledge of when Davinder opened the safety deposit box or what was put in or taken out.

Davinder was also owner of a second safety deposit box jointly with her daughter. No records from that account were placed into evidence. The discrepancy between the deposit box records and the dates the claimant used the jewellery raises some question about the number of times and dates Gurleen used this jewellery; it appears that Davinder was accessing the deposit box frequently and the absence of a detailed correlation between the social events attended and the dates Davinder accessed the box is not troublesome.

Further, given the existence of Davinder’s second safety deposit box, these factors are not adverse to the credibility of the claimant. [ 129 ] The respondent’s alleged that there was a discrepancy in the claimant’s evidence concerning the December 2, 2010 list of jewellery prepared by her brother and sent to Davinder. During her examination-in-chief she said that she saw this document for the first time on December 18, 2010. She qualified that answer by saying it was either December 18 or 19.

Counsel argued that later cross- examination she said she had seen it for the first time on February 11, 2011 and this discrepancy erodes Gurleen’s credibility. [ 130 ] Unfortunately, counsel misstated the evidence on this point. He referred the court to September 17, 2012, page 27, line 4 to highlight the background of her testimony. On review of the transcript, counsel had misstated the evidence to Gurleen in suggesting that in her direct evidence she said the first time she had seen the December 2, 2010 list was on February 11, 2011.

This was misleading because the claimant’s evidence was that February 11, 2011 was the first time she had seen her brother’s email dated January 31, 2011 and not the December 2 e-mail. This allegation that Gurleen was unreliable in this evidence is not supported in the full context of that exchange. [ 131 ] The respondents point out that the claimant’s allegation that she feared for her safety in and around December 15, 2010 was unsupported by any evidence. When the police attended the Sohi residence at that time, there was no indication that she was unsafe or being held against her will.

There was no indication that the claimant had been prevented from leaving the residence and, in the constable’s recollection, the claimant’s chief concern was whether she would be allowed to leave the residence with her property which may have included the jewellery. [ 132 ] Again, determining a person’s own safety is highly subjective. Gurleen may well have felt threatened or scared in what had become a highly unpleasant home environment for her, even if there was no actual threat of danger or to her safety.

As I have indicated Davinder and Dalbir intended to stop Gurleen from leaving the house with all of her personal property and insisted on a search of her suitcase. [ 133 ] Whether she acted prudently in calling the police is not significant; I find that this event does not erode her credibility as a witness at trial. [ 134 ] The respondents highlighted the claimant’s evidence regarding the number of jewellery boxes she kept in the bedroom.

In cross- examination she said there were just two jewellery boxes and that she kept her everyday jewellery in a silk green jewellery box and transparent jewellery box which she kept on her dresser. Later, on a list prepared by the claimant, she had included many more boxes. [ 135 ] Although the claimant explained in this discrepancy by distinguishing the boxes used to hold jewellery and boxes used for other purposes, her evidence on this point was not persuasive.

I find her credibility is somewhat eroded by this inconsistency. [ 136 ] The respondents alleged a list of 24 incidents in Gurleen’s cross-examination where she responded “I do not remember”, suggesting that she did not have a firm memory and her evidence could not be relied on. [ 137 ] One example quoted by counsel was a suggestion that she was asked whether “she told the police that she was prevented from leaving the Sohi residence”. Counsel suggested that she responded “I do not remember”.

The actual exchange on September 17, 2012 was this: Q. now, you told the police, did you not, that you had a place to go, right? When you call the police you told him that you had a place to go to but were being prevented from leaving the residence. Correct? A. I do not remember the exact words that I told the police that day. Q. where had you arranged to go on 15 December? A.

I had not arranged to go to any particular place. [ 138 ] Another example of the respondents’ submissions on this point arises from Gurleen’s evidence from September 18, 2012 concerning whether her aunt had told her that her father had been in British Columbia for two days on December 4, 2010. This was that exchange: Q. so, at the latest you’ll agree with me, would you not, that by 4 December you knew that your father was in town? A. correct, Mr. Grewal. When my aunt came she told me that my father was at her place at the time. Q. and that he had already been there for more than a couple of days? A.

I don’t remember her mentioning specifically that how many days he’d been there for.

[ 139 ] I have cited these two examples from the 24 suggestions by the respondents that the claimant did not have a firm memory. I do not intend to review each of the 24 allegations save to say that the respondent’s arguments do not accurately reflect the full context of the questions and answers. I do not conclude from a review of those exchanges that the claimant’s memory was flawed in any substantial manner that should shake my confidence in her evidence.

Aman Billing [ 140 ] Aman played a significant role in responding to the respondent’s concerns regarding Gurleen’s alleged misbehaviour during the months before separation. He also played a role in attempting to resolve the terms of settlement of any dispute between Gurleen and Pawanjit. [ 141 ] He dealt with Pawanjit and Davinder and the specific issue of restoring to each family the gifts of jewellery that had been given at the time of the wedding festivities and after.

It is clear to me that when these discussions took place, neither Aman nor Pawanjit were contemplating that the parties were legally entitled to treat the jewellery as a family asset available for division under the Act . [ 142 ] The respondents contend that Aman’s evidence is riddled with contradictions, including the placement of the advertisement in the newspaper, whether he spent three or four years in college, what portion of the wedding expenses he paid, where he met the Sohi family in April 2010, the meetings between him and the respondents concerning the claimant’s behaviour, etc. [ 143 ] Pawanjit testified that there was to be an exchange of jewellery given by each family to Pawanjit and Gurleen.

The claimant contends that this was not correct. She said that their conversations dealt with the reciprocal return of jewellery gifted by the other side’s family. The December 2 list contained reference to “five sets” which formed a portion of the jewellery given to the parties by his family. Pawanjit testified on September 2013 page 30 in reference to the entire December 2 e-mail: These--this is the jewellery I guess were presented by her side of the family, or she probably got it on some of the functions from her parents.

So this is all the jewellery that, on that date, Gurleen already has in her possession. [ 144 ] Pawanjit said there were only four items he needed to obtain from his other family members. [ 145 ] Gurleen contends that there was no discussion about an exchange because she did not have jewellery (with the possible exception of her daily use jewellery) to give back.

Aman told Pawanjit that if there was anything owed by the Billing family, they would return those things. [ 146 ] Pawanjit testified that he had the three items at the bottom of the list and agreed to return the four items in the middle of the list in the possession of his family members. Pawanjit did not prepare and send a corresponding list of jewellery his family expected to receive from Gurleen.

The December 2 list prepared by Aman was the only written communication identifying jewellery that was to be returned as of December 2010. [ 147 ] In the contest between the two versions of the December 2 conversations and the list, I accept Aman’s version of events, partly because it accords with the preponderance of evidence on that issue. At the time, the parties had not considered whether there should be an exchange or return of specific items to the Sohi family.

On the other hand, there was a specific list of jewellery claimed by the Billing family. [ 148 ] Pawanjit eventually told Aman that they did not want to deal with resolving the jewellery issue until Dalbir had returned from India. [ 149 ] Overall, the discourse between Aman and Pawanjit concerned the process by which each family would be restored with the jewellery it had given at the time of the wedding. The significant feature of this exchange is that Aman listed the jewellery that his family expected to receive and Pawanjit’s family did not provide a reciprocal list of jewellery it expected to receive.

The Respondent Pawanjit [ 150 ] Gurleen challenges Pawanjit’s evidence in several places. These include: (

a) Pawanjit testified that on December 2, Gurleen told him that she had the wedding jewellery “somewhere” and would give it to him when she received her property. At Pawanjit’s December 7, 2011 examination for discovery he did not mention this exchange between them; (

b) At Pawanjit’s discovery he was uncertain about which items Gurleen had given to Davinder for safe keeping. At trial, Pawanjit was able to recall specifically each piece of jewellery in detail and the dates which they were given to his mother. Pawanjit was detailed in citing his reasons for his memory at trial. The claimant says this demonstrates the lack of reliability in his testimony; (

c) At his discovery Pawanjit said that the gold chain was presented to Gurleen on their engagement day whereas at trial he said that the chain was given to her on their wedding day; (

d) At his discovery Pawanjit said that he had no specific recollection of the gifts made to Gurleen on specific occasions. He did not keep track. At the trial he testified to a specific recollection that most of the jewellery was given to Gurleen on July 5, 2009. He also said that she kept possession of the jewellery in their bedroom throughout; (

e) Although Pawanjit said he did not keep track, he recalled Gurleen handing four sets of jewellery to his mother before the Paris trip and he recalled each time she asked Davinder for jewellery. In cross-examination Pawanjit said he did not know which items of jewellery Gurleen had given his mother;

(

f) At this discovery, Pawanjit said that his uncle’s family, including Mr. Riar, gave Gurleen a necklace and earrings. At trial, Pawanjit said that his uncle gave her a gold, pink and green necklace with matching earnings; (

g) At his discovery, Pawanjit only said that his uncle Riar gave one set of jewellery to Gurleen. At trial, the respondent listed many extended family members who gave Gurleen wedding jewellery, including Dalbir’s younger brother, Hardev Sohi, his aunt, Sarbjit Chimna, Sukhjit Sandu, Aman Deo, and Pawanjit’s grandmother; (

h) Dalbir and Davinder met with Aman in October or November 2010. Dalbir and Davinder said that the issue of gold jewellery in Gurleen’s possession in her bedroom was not raised with her or Aman. To the contrary, Pawanjit said that the issue of jewellery being in the bedroom was discussed and the prospect of Gurleen obtaining a safety deposit box was mentioned; (

i) In his trial evidence, Pawanjit said the claimant packed five big suitcases and two small ones. Under cross-examination he was uncertain how many suitcases she had packed. [ 151 ] Pawanjit said that between November 29 and December 15, Gurleen unpacked some of her things but did not unpack any of the jewellery she had originally packed on November 29.

According to him, she had packed about 10 garbage bags along with for suitcases but the cases were not locked. [ 152 ] Pawanjit testified in chief with great certainty that when Gurleen returned from India in January, she did not return all of the jewellery to Davinder. He was cross-examined about his discovery evidence where this occurred: 346Q To your knowledge, when Ms. Sohi returned from India, did she give back to the jewellery to your mother to put back in the box? A. I don’t know. [ 153 ] On December 18, Pawanjit said he made a list of the items left behind by Gurleen.

He did not include this list in the documents disclosed to the claimant and when pressed on the issue said that he might have discarded the list. In my view, it is troubling that Pawanjit prepared such a list concerning the contents of the bags left behind by his wife but has not disclosed the list in this litigation. [ 154 ] Pawanjit was asked why the respondents declined to return the bags of Gurleen's personal property between January 2011 and December 2011. He said it was because they were trying to be in touch with Gurleen’s family to set a date to have an exchange of items.

In my view, his evidence was disingenuous and unbelievable. She had pleaded for the return of her property and it was clear the property would not be returned in the absence of the apology demanded by his father. [ 155 ] These inconsistencies in Pawanjit’s evidence coupled with his behaviour between November 29 and December 15 discussed earlier persuade me that his evidence is not reliable. [ 156 ] Pawanjit’s credibility was undermined in many exchanges during his cross-examination including the ones noted above.

The inconsistencies and unreliable features in Pawanjit’s evidence coupled with his behaviour between November 29 and December 15 and into 2011 as discussed earlier persuade me that his evidence is not reliable or credible on many significant points. The Respondent Dalbir [ 157 ] The claimant raised concerns about Dalbir’s credibility, and I agree that his credibility was compromised. Dalbir was questioned about the payment of taxes on the wedding jewellery imported into Canada. At the trial transcript, page 11, Dalbir said that some of the jewellery was brought to Canada by others including his daughter.

It was suggested that his intention was to avoid taxes or duties on the jewellery and he replied: Sir – – Sir, everybody wants to save taxes and duties. [ 158 ] He was asked why jewellery was left behind for others to bring to Canada he said: A. To save duties. Q. Thank you. A.

If she brought everything with her, then – – Q Thank you A. -- she was to pay duties. [ 159 ] I am satisfied that Dalbir was complicit in the scheme to bring the jewellery into Canada without paying the duties and taxes due by him and his wife when they imported these things. [ 160 ] Dalbir had considerable difficulty in answering questions regarding payments made to his MasterCard account.

In my view, he obfuscated and avoided answering questions that he would typically be aware of, namely that the claimant’s joint bank account was used to pay a variety of his personal MasterCard charges. [ 161 ] Dalbir testified that his wife reported to him that she had seen the claimant throw jewellery and jewellery boxes into the bags she packed on November 29. He said that his wife told him that the claimant packed all the jewellery with the clothing. At one juncture, he was vigorous and animated in testifying that the claimant had “the entire jewellery” with her.

Based on his other answers and the obvious circumstances of this family, Dalbir could not have had personal knowledge of this fact. He repeated it forcefully without recognizing that he was not being truthful insofar as he did not have personal knowledge of that assertion.

[ 162 ] Dalbir testified that Gurleen was having a shower after she had called the police to assist her. That assertion does not accord with any measure of common sense. [ 163 ] He testified that he did not instruct his wife to go to the claimant’s bedroom and search her suitcase. He said he was interested in knowing what was in the suitcase but did not give instructions to Davinder. This assertion is contrary to Davinder’s evidence; she said that Dalbir instructed her to go upstairs and search the claimant’s bag. [ 164 ] Dalbir was questioned about the delay in dealing with Aman and settlement of the issues.

He denied there was delay because he had been unable to contact his solicitor. He was cross-examined on his discovery evidence wherein he confirmed that he needed time to see his lawyer and would need more time to address the issue. At trial he remained adamant that he had not asked for further time notwithstanding his discovery evidence. This point illustrates the unreliability of some of Dalbir’s evidence. [ 165 ] Dalbir was asked if Gurleen tried to obtain the return of her personal belongings after December 15, 2010. After some clarification of the question, he said” she didn’t, Sir. Gurleen didn’t”.

He was then taken to his examination for discovery evidence: 541Q After December 15, she tried to get back all her other belongings, did she not? A. And – – and we – – she tried, yes okay. [ 166 ] Dalbir was also asked why his January 31, 2011 letter did not contain a demand for the return of jewellery he alleged was in the possession of the claimant. He threatened to sue for defamation but not for the return of jewellery which, by that time, was in issue between the parties.

The absence of a credible explanation on this point is a significant omission in Dalbir’s evidence that affects the reliability of his assertion that he believed that Gurleen had all of the jewellery, including the sets given to her by the Sohi family.

The Respondent Davinder [ 167 ] I found the evidence given by Davinder to be replete with contradictions and inconsistencies that were highlighted during cross- examination. [ 168 ] First, I am satisfied that Davinder’s importation of the wedding jewellery into Canada marks an important instance of her inability to grasp the importance of truthful evidence and her willingness to mislead to avoid the lawful charges of the Government of Canada levied on imported jewellery. [ 169 ] At Davinder’s discovery, she testified that she brought the jewellery from India in 2008 to Canada herself.

When she was pressed on the question of declaring the jewellery to customs, she said “I actually – – I didn’t bring it with me.” She said that others had brought the jewellery from India. Soon after, she said that she had engaged the help of relatives to bring the jewellery back: 194Q So why did you give it to them when you purchased it? A Because they were moving here permanently 195Q But you were coming here too? A Yeah, but I had to pay the customs and stuff like that. 196Q So to avoid taxes you gave the jewellery to them? A Yes 197Q So taxes and duties; right? Correct?

A Yes 210Q They handed the jewellery over to you? A Yes 211Q And you put it in your safety deposit box? A of course. [ 170 ] At trial Davinder testified that other people brought this wedding jewellery to Canada. She did not adequately explain the significant discrepancy between her discovery evidence and trial evidence. [ 171 ] I have no doubt that Davinder intended to avoid paying taxes on the jewellery imported into Canada.

I do not accept her evidence that she forgot to tell her lawyer about the other people who brought jewellery into Canada in 2008. [ 172 ] Davinder testified at trial that Gurleen wore the green locket set to the Victoria wedding.

Confronted with her discovery testimony wherein she said that she had given Gurleen the Firoza set for the Victoria wedding and pictures confirming that Gurleen did not in fact wear the Firoza set, Davinder accepted that her discovery evidence was incorrect. [ 173 ] Davinder testified that the December 2 list contained jewellery that Gurleen wanted returned from the respondents because it was in their possession. She then changed that evidence to say that all of the jewellery up to the nose ring listed on the December 2 list was already with Gurleen.

[ 174 ] Davinder testified that Gurleen used her jewellery every weekend but later testified Gurleen’s work

schedule was such that it is highly unlikely that she attended events with the family “every weekend”. [ 175 ] On another occasion Davinder insisted that Gurleen attended the Sandhu wedding in Richmond. When pressed at on cross- examination she said “maybe I’m wrong, I’m not sure. I can’t say 100%, but I think she went”. [ 176 ] In her evidence-in-chief she said that Gurleen went to a reception at the Maurya restaurant and wore wedding jewellery. When confronted with a photograph from that dinner, Davinder said “At that time it was the truth. I didn’t have all the things in my mind.

This is my first case in the court, so I don’t know how specific you should be” she then acknowledged that her memory may not be reliable. She went on to say: We had so many functions, I can’t pinpoint each of them, but what – – whatever is in my mind, I can tell you that. I’m not clear about them. I am clear about a few of them – – not few, but some of them. We had so many, we can put them in your head. I can tell you which functions she was wearing the jewellery. But if you say if I am clear about that, I don’t have the pictures in front of me and that happened like four, five years ago.

I can’t remember what she was wearing that when. That is my answer. [ 177 ] Davinder testified that on December 15, Gurleen spoke to her about her impending departure and at question 444 of her discovery said: I was sitting there going through the stuff he bought from India. She came down and told me that, “Mom, I know that dad is here. G

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