Docket: CACV2535 Vivek Rishi Appellant - v. -, 2014 SKCA 54

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 54 Date: 2014-04-30 Between: Docket: CACV2535 Vivek Rishi Appellant - and - Taminder Kaur Deo Respondent Coram: Jackson, Herauf and Ryan-Froslie JJ.A. Counsel: David Barth, for the appellant Taminder Deo, representing herself Appeal: From: Q.B. Div. 145 of 2013, J.C. of Regina Heard: April 30, 2014 Disposition: Appeal allowed (orally) Written Reasons: May 2, 2014

By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Herauf The Honourable Madam Justice Ryan-Froslie Jackson J.A. [ 1 ] This is an appeal from a judgment granting Taminder Kaur Deo and Vivek Rishi a divorce. The pertinent facts may be briefly stated. [ 2 ] The parties were married on February 3, 2011 and separated on March 23, 2011 when Mr. Rishi was compelled to leave Canada. He was required to do so as his work visa had expired. Mr.

Rishi, who had lived in Canada legally from 2006 until 2011, is now residing in India pending approval from the immigration authorities to come to live in Canada. The parties have no children. [ 3 ] Ms. Deo filed a petition seeking a divorce from Vivek Rishi on March 21, 2013 on the basis that they had lived separate and apart for at least one year. Ms. Deo filed the application for divorce without using a lawyer’s services. She followed a checklist for self- represented litigants. Ms.

Deo claimed no corollary relief. [ 4 ] As no objection was made to the petition, the Court of Queen’s Bench granted a judgment for divorce on March 20, 2014 by way of default. The judgment contained a statement that the divorce would take effect on the 31st day after March 20—in other words after April 20. [ 5 ] On April 14, 2014, Mr. Barth, a barrister and solicitor practicing in Saskatchewan, served and filed: (

i) an appeal from the judgment for divorce; and (ii) a consent judgment allowing the appeal. The consent judgment was signed by Mr. Barth as Mr Rishi’s solicitor and consented to by Ms. Deo. [ 6 ] In addition to appealing to this Court, Mr. Barth complied with Rule 15-46 of the Queen’s Bench Rules which provides: Notice of appeal 15-46 The appellant shall file a copy of the notice of appeal from a judgment granting a divorce, or a copy of an order extending the time for appeal, with the local registrar in the office in which the judgment granting the divorce was entered.

Upon the filing of the Notice of Appeal, the Registrar of this Court complied with Rule 41 of the Court of Appeal Rules by informing the local registrar of the judicial centre of Regina that an appeal had been filed. [ 7 ] Given the unusual nature of this appeal and the consent judgment, the Court held a telephone conference on April 17, 2014 with Mr. Barth and Ms. Deo to explore the nature of the appeal and to determine whether either party needed independent counsel or advice. During the telephone conference, the Court learned that it is in fact Ms. Deo who is providing Mr.

Barth’s instructions, notwithstanding the fact that he is, according to the records of the Court, acting for Mr. Rishi. [ 8 ] Mr. Barth had only very recently been consulted by Ms. Deo who desperately wanted to stop the divorce judgment from taking effect. The reason he filed the appeal in Mr. Rishi’s name was because time was running short. He was concerned that the Notice of Appeal would be rejected if it were in Ms. Deo’s name, since she was in essence the successful party in the Court of Queen’s Bench.

He filed the Notice of Appeal in order to effect a stay of proceedings under Rule 15 of the Court of Appeal Rules . [ 9 ] The Court was assured by Mr. Barth and Ms. Deo that requiring either party to obtain independent counsel was not necessary in the circumstances of this case. Nonetheless, the Court ordered that Mr. Rishi file an affidavit attesting to all relevant matters and indicating his full agreement to this Court exercising its powers and voiding the divorce. The Court also fixed April 30, 2014 to hear from Ms. Deo and consider Mr. Rishi’s affidavit. [ 10 ] On April 29, 2014, Mr.

Rishi filed an affidavit that he swore before Mr. Jaswinder Singh, a notary appointed by the Government of India. According to his affidavit, Mr. Rishi is from a proud traditional Hindu family and Ms. Deo is from a proud traditional Sikh family. The two families arranged the marriage between Ms. Deo and Mr. Rishi. [ 11 ] In his affidavit, Mr. Rishi attests that he received bad or misleading advice from an immigration consultant such that it came as a surprise to him when his work visa expired, was not renewed, and he was required to leave Canada. Ms. Deo’s family also became very upset when Mr.

Rishi’s work visa was not extended, believing that Mr. Rishi had not been up front with them. When Ms. Deo’s family became upset, Mr. Rishi’s family became equally upset. [ 12 ] Mr. Rishi attests further that he never wanted to be divorced and that he does not now want to be divorced. Since leaving Canada in March of 2011, he and Ms. Deo have been in “almost daily contact” via Skype and instant messaging. He swears that he wants “to come and live with Taminder in Canada as husband and wife.” He agreed with Ms.

Deo’s decision to apply for divorce as it appeared then that their families would not be able to overcome their differences. It had become a choice between their families and remaining married. When Ms. Deo received the divorce judgment, however, everyone had a change of heart.

[13] In the hearing before us on April 30, Mr. Barth also submitted that neither Mr. Rishi nor Ms. Deo wish to be divorced and bothwish to be reconciled and indeed have never been truly at odds. Family pressure had resulted in the filing of a petition for divorce thatnever should have been made. [14] Ms. Deo affirmed to the Court that everything Mr. Rishi had said in his affidavit is true. Further, she did not collude or connivewith Mr. Rishi to either obtain the divorce or to file the appeal.

She filed the petition for the divorce because she thought she had nochoice but to dissolve her marriage due to the animosity between the two families. Now that the families have themselves reconciled, shewants fervently to remain married to Mr. Rishi. She affirmed that the sole reason for her decision to appeal is to remain married toMr. Rishi, and that she wants to be fully reconciled with him. [15] Mr. Barth submitted that the Court could set aside the divorce, using the powers of the “court” under s. 10 of the Divorce Act,R.S.C. 1985, c. 3 (2nd Supp.) on the basis that the parties wish to reconcile.

Section 10 of the Divorce Act on its face is directed to theCourt that grants or refuses the divorce, which is the Court of Queen’s Bench in this jurisdiction. [16] Little case authority exists regarding an appellate court’s power to set aside a divorce judgment,[1] and none of it is particularlyrelevant in the context of the within appeal.

Section 21 of the Divorce Act, however, ensures that an appellate court has full powers todismiss or allow an appeal from a divorce or make such order as it deems just. That

section reads in material part as follows: Appeal to appellate court 21.

(1) Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim,rendered or made by a court under this Act. … Powers of appellate court

(5) The appellate court may (

a) dismiss the appeal; or (

b) allow the appeal and (

i) render the judgment or make the order that ought to have been rendered or made, including such order or such further or other order asit deems just, or (ii) order a new hearing where it deems it necessary to do so to correct a substantial wrong or miscarriage of justice. [17] The decision of the parties to reconcile is a factor that an appellate court can consider in deciding whether to set aside a divorcejudgment.

Indeed, all of the factors that a trial court must consider when deciding whether to grant or refuse a divorce are at least tosome extent relevant to an appellate court’s determination of whether to set aside a divorce judgment. It is on this basis that this Courtconsidered evidence to determine whether the parties were motivated by considerations other than reconciliation when they decided toappeal the divorce judgment. [18] Having received Mr. Rishi’s affidavit evidence and Ms.

Deo’s oral testimony, we are satisfied that their decision to appeal was, andstill is, animated solely by their desire to live together as husband and wife. [19] One final matter remains. As Sherstobitoff J.A. sitting in Chambers indicated in Bast v. Bast (1990), (SK CA),89 Sask. R. 264, it is s. 12(3) of the Divorce Act that determines the effect of an appeal on a divorce judgment and not Rule 15 of theCourt of Appeal Rules. Subsection 12(3) provides: 12.

(3) A divorce in respect of which an appeal is pending at the end of the period referred to in subsection (1), unless voided on appeal,takes effect on the expiration of the time fixed by law for instituting an appeal from the decision on that appeal or any subsequent appeal,if no appeal has been instituted within that time. In light of s. 12(3) of the Divorce Act, a divorce is not effective until the time to appeal has past.

Subsection 12(3) specifically recognizesthat a divorce judgment can be voided on appeal. [20] Having regard for the Court’s authority under s. 21 of the Divorce Act, this Court allows the appeal and voids the divorce. Thedivorce judgment is set aside. For obvious reasons, there will be no order of costs.