Nijjar v. Nijjar

2013 BCSC 873 Nijjar v. Nijjar

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Nijjar v. Nijjar, 2013 BCSC 873 Date: 20130517 Docket: E38113 Registry: New Westminster Between: Parminder Kaur Nijjar Claimant And Devinder Singh Nijjar Respondent Before: The Honourable Mr. Justice Jenkins Reasons for Judgment Counsel for Claimant: M. Dyonisius Counsel for Respondent: In Person Place and Date of Hearing: New Westminster, B.C. January 28, 2013 Place and Date of Judgment: New Westminster, B.C. May 17, 2013 [1] There have been several chambers applications in this hotly contested family matter over recent months and these are my reasons following those applications. [2] During a Trial Management Conference held October 1, 2012, Master Keighley ordered a bifurcation of the trial which had been scheduled for five days commencing October 29, 2012. Specifically, Master Keighley, after finding that a resolution of the children's issues was vital and those issues alone would consume the five scheduled days of trial, he ordered the trial to proceed only on the issue of parenting arrangements. The trial commenced before me on October 29, 2012 and it soon became apparent that the trial could not be concluded within the scheduled five days, even after limiting the issues at trial to parenting issues. At that time, the respondent husband, Devinder Singh Nijjar, was represented by counsel as was the claimant. [3] Since

shortly after a chambers application heard in this matter, the respondent has been self-represented and then has sought permission to have his brother, Jograj Singh Nijjar ("Jograj"), to represent him at various chambers applications and at the continuation of the trial. [4] The continuation of this trial was originally scheduled to commence for a further 5 days on March 4, 2013 but was adjourned prior to that date upon the application of the respondent and scheduled to re-commence July 29, 2013 for a further 5 days. When the first five days of the trial concluded in early November, the claimant's case was closed and the respondent was to continue with his case and evidence on the parenting issues. Application of Claimant for Documents [5] The first application that came before me since the trial was adjourned was in a notice of application by the claimant filed January 21, 2013 in which counsel seeks documents from several persons and organizations which can be summarized as follows: i. The RCMP Surrey Detachment relating to incidents between the parties and the parents of the respondent, Amrik Singh Nijjar and Surinder Kaur Nijjar and other family members of the respondent involved in incidents when the RCMP were called upon and attended including incidents of September 10, 2010, March 3, 2011, May 2011 and July 2012. The notice of application is lengthy and sets out a

procedure for production of the documents, payment for the costs of producing the same and delivery of the reports, all as described in paras. 1 to 8 inclusive of the notice of application. ii. The Ministry of Children and Family Development seeking records regarding the three children of the marriage in the Ministry records including records of complaints and investigation of complaints made by the respondent, his parents and other family members against the claimant regarding child abuse or safety, iii. That Dr. D. Herear and Dr. Amrik Tung, both of whom have attended upon the oldest child of the marriage, Tarndev Singh Nijjar ("Tarndev"), born April 9, 2002, provide copies of their clinical and medical records of such attendances "including journals indicating the details of visitations regarding Tarndev". [6] In these reasons, there is no need to reproduce the many disputes and issues which have continued for many years. Allegations of abuse abound against each of the parties, the parents of the respondent and other family members. The claimant has also alleged that members of the respondent's family, if not the respondent himself, have threatened potential witnesses should they attend to give evidence, has alleged that the respondent's parents are exuding undue influence on potential witnesses and also have deliberately attempted to alienate Tarndev from the claimant. [7]

The claimant, as mentioned, has closed her case and this application did not arise until after the trial was adjourned in November 2012, ie. after the claimant's case was closed. As a result, previous counsel for the respondent objected to this application on the basis that the application should have been brought to the court's attention prior to the start of trial or at least before the claimant's case was closed. Various explanations have been provided by counsel for the claimant as to why the application was not brought sooner, however, I do not believe the application was precluded as a result of the claimant's case being closed. [8] The incidents described in the notice of application have been described in the evidence put forward by the claimant and some of the other witnesses called on her behalf and one would have thought that if the RCMP in particular had been involved, they would have been approached and an order such as is sought here could have been the subject of a pre-trial notice of application. [9] It is to be assumed, however, that these incidents will be described in evidence once again by the respondent and some of his witnesses and assuming once again that the versions of the incidents given by the respondent will conflict with those of the claimant, some independent evidence, if available, could be of significant probative value to me in assessing the

evidence. [10] On that basis, I am prepared to grant the order requesting documents from the Surrey Detachment of the RCMP as described in the notice of application. Those documents must be disclosed to counsel for the respondent and if relevant, counsel may put any of those documents to the respondent's witnesses. I reserve the right to consider, following the respondent's case, whether those documents may be used in reply. [11] Regarding the application for records of the Ministry of Children and Family Development, I order the same be produced as described in paragraph 9 of the notice of application. [12] Finally, regarding the notice of application filed January 21, 2013, I am ordering the records including medical records of Dr. D. Herar and Dr. Amrik Tung as described in the notice of application. I am ordering the same in that these persons will likely have relevant evidence regarding in particular Tarndev and the parenting circumstances of Tarndev are hotly disputed and require as much information as possible regarding his health and well-being. Application for Parenting Report [13] On a second notice of application, heard in Chilliwack on February 27, 2013, I ordered the trial to be adjourned to July 29, 2013 and I also ordered the production of a custody and access report relating to all three children of the marriage under section 15 of the Family Relations Act and,

seeing the new Family Law Act would be coming into force on March 18, 2013, I indicated I would order a report under section 211(1) of the latter Act to determine the needs of the children of the marriage and the ability and willingness of the parties to satisfy the needs of the children. I did not, at that time, name the person who was to be preparing the report and indicated I would provide names of potential psychologists who have experience in these matters and those persons, all of whom are in Vancouver are: · Dr. Michael Elterman · Dr. Larry Krywaniuk · Dr. Rebecca England [14] In the first instance, the respondent shall pay the cost of the report, however, the claimant will reimburse the respondent for one-half of the cost of the report upon completion of these proceedings and the division of family property. Alternatively, the judge who determines the allocation of family party may adjust the allocation to take into account the responsibility of the claimant to pay for one-half of the cost of the report. Application by the Claimant that all Issues be heard at Continuation of Trial [15] Reference was made earlier in these reason to the order of Master Keighley of October 1, 2012 in which he ordered the trial scheduled to commence October 29, 2012 be bifurcated so that only the parenting issues be heard. [16] In the notice of application filed March 15, 2013, the claimant

now seeks an "order to combine, try and determine all the issues including property division, spousal support and child support together with the parenting issue". As well, if an order is granted to have all issues heard together at the upcoming continuation of the trial, the claimant seeks a further order as follows: 2. In the event the relief sought in paragraph 1 is granted, an Order that the Respondent produce all financial information related to his self-employment / business income and real property related documents since its purchase to include the original purchase documents, bank records of initial deposits and other payments towards the property, mortgage records if any and all other relevant documents; [17] As I have heard the first five days of the trial of this matter and have heard three chambers applications since the adjournment of this trial, I find that I am seized of this matter and will hear the outstanding issues in addition to the parenting issues. Accordingly, I hereby order that all remaining issues are to be heard by me at the continuation of the trial. [18] As well, I order production of documents by the respondent as requested in paragraph 2 of the notice of application filed March 15, 2013. [19] It is clear to me, however, that it may be difficult to complete the continuation of the trial of the parenting issues in the five days of trial now

scheduled to commence on July 29, 2013, let alone hearing the remaining issues in addition to parenting. [20] I have made inquiries of Supreme Court Scheduling in New Westminster and subject to the availability of the parties, further days for the continuation of the trial can be accommodated and I direct the parties to schedule at least four further days of trial as soon as possible. Application of the Claimant for Overnight Parenting Time with Tarndev [21] Since separation of the parties in March of 2011, the oldest child and son of the marriage, Tarndev, has been living with the respondent and the respondent's parents at the former family home owned by the respondent's parents. The two younger children, Joshua and Chandan, have resided with the claimant in rented accommodation in Surrey. [22] The only parenting time shared by the parties and the children has been on weekends when both parents and all three children are present, usually on family outings and at restaurants. [23] The claimant has concerns that Tarndev is being influenced by his father and his paternal grandparents and that they are turning Tarndev against his mother. There was considerable evidence during the first five days of trial supporting this allegation by the claimant but I have yet to hear any evidence from the respondent or the grandparents, all of whom I understand deny the allegations made by the

claimant regarding attempts to alienate Tarndev from his mother. [24] Although overnight parenting time may be ordered in the future, I am not prepared at this time to make the order sought by the claimant. The allegations made by the claimant as to the conduct of the respondent and the grandparents are very serious and it is in part because of those allegations, I have ordered the preparation of a parenting report. Hopefully the findings of the author of that report will be able to assess the needs of the children and after receipt of the same, I will be in a better position to be able to make further rulings regarding parenting responsibilities and parenting time. At the present time, I have not heard the evidence of the respondent and his witnesses and accordingly I am not prepared to order overnight access at this time. Claimant's Application for an Order restraining the Respondent from discussing this Family proceeding with the Children [25] Neither parent should be discussing this proceeding with the children and should not be criticising the other before the children and I so order. Representation of the Respondent by Jograj [26] In an earlier application, I permitted the respondent's brother Jograj, to act as agent for the respondent subject to being able to reconsider this matter at a future date. At the time of the earlier application, there were chambers matters

which were upcoming and I was prepared, for the time being, to have Jograj speak for his brother and make representations to the court. [27] The claimant now seeks an order "preventing Jograj from acting as an agent for the respondent due to his strong personal and financial interests in the issues". [28] Jograj, the respondent and a third brother, Balraj Singh Nijjar ("Roger") are equal owners of property adjacent to the former family home which is owned by the respondent's parents and is also the home of the respondent's parents. Jograj is building a house on one of the adjacent properties where he will be living with his family. [29] The claimant also deposes that Jograj manages the family finances, that the businesses of the family which includes a blueberry farm, trucking company and possibly other ventures and as a result, Jograj has a personal interest in the outcome of this matter, will likely be a witness and is not capable of representing his brother. The substance of the allegation is that the respondent so far has not made full disclosure of the family businesses in which they are all involved and Jograj has an interest in also not disclosing assets and documents relating to the family businesses. [30] At the hearing of this application on April 2, 2013,at which Jograj was present and speaking for the respondent, I ordered that Jograj provide an affidavit in which

he was to describe the business relationship between him and the respondent. As well, I ordered the respondent to provide an affidavit covering the same topic to the extent the respondent had personal knowledge. [31] I have now received an affidavit of the respondent in response to my order, although the same did not come to my attention for several weeks after it was filed on April 8, 2013. I have not received an affidavit from Jograj as ordered by me on April 2, 2013. [32] As well, the affidavit filed by the respondent on April 8, 2013 does make mention of an arrangement between the respondent and his brothers for joint ownership of the property at 18427 - 84 Ave. in Surrey, B.C. There is also evidence in that affidavit of a debt of the brothers to their parents in connection with the purchase of that property. [33] I will require and order production of, prior to the continued trial of this matter, all documentation relating to the purchase, ownership and financing of the 84 Ave. property. Also, I will require the affidavit of Jograj to set out particulars of the agreement regarding that property and the financing of the same. [34] The affidavit of Jograj should also describe any other business interests in which he and his brothers are involved including the Nijjar trucking business, a construction company which has been referred to at trial, the blueberry farm and any

other business interests of Jograj and the respondent. The affidavit should provide any documents evidencing those business interests including financial statements, agreements, correspondence and evidence of ownership of equipment and vehicles. [35] Only after receipt of that information will I be in a position to decide the issue of Jograj's continuing representation of his brother as agent. I order that the affidavit of Jograj be filed no later than May 27, 2013. List of Witnesses [36] The claimant also seeks an order requiring the respondent to deliver a list of witnesses the respondent will be calling as witnesses at the continuation of the trial, contact information for those persons and "will say" statements, briefly setting out a summary of the proposed evidence of those persons. [37] This request is reasonable and I order the list, contact information and "will say" statements be delivered to the claimant's counsel by no later than July 15, 2013. [38] Costs will be costs in the cause. "Jenkins J."