Singh v. Narayan

2025 BCSC 1604 Singh v. Narayan

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Singh v. Narayan, 2025 BCSC 1604 Date: 20250819 Docket: E220079 Registry: Vancouver Between: Sanadhika Singh Claimant And: Jagdish Narayan, Alveena Devi Sehdeve, Ashika Devi Narayan, and Rajesh Narayan Respondents And: Nawal Prakash Singh and Kristine Sheetal Singh Respondents by Counterclaim Before: The Honourable Mr. Justice A. Saunders Reasons for Judgment re Mid-Trial Application for Interlocutory Injunction Counsel for the Claimants and Respondents by Counterclaim: A. Grewal Counsel for the Respondents: M. Sixta Place and Date of Hearing: Vancouver, B.C. June 6 and July 31, 2025 Place and Date of Judgment: Vancouver, B.C. August 19, 2025 [1] The parties are now mid-way through trial on the limited issue of whether the claimant and the respondent Mr. Jagdish Narayan were in a spousal relationship. The trial proceeded before me over eight days in October 2024, and a further two days in January 2025, and is now scheduled to continue over a further ten days in October 2025. The claimant's case is closed; Mr. Narayan's examination-in-chief has concluded, and he is now under cross-examination. [2] On this application, Mr. Narayan seeks an interlocutory injunction restraining the claimant from attending, entering into, residing in, or occupying the residential property located at 3545 Wellington Ave., Vancouver (the "House"), and

requiring her to remove her personal belongings. [3] The claimant says that she and Mr. Narayan continually occupied the House as their family residence, from early 2011 until she says they separated in the summer of 2021. She says that she then moved from the master bedroom in the House, which they had shared, into an unoccupied bedroom down the hall, and still resides there. [4] This is Mr. Narayan's third attempt to have the claimant removed from the House by way of an interlocutory application. The first two attempts were by way of applications for exclusive occupancy under s. 90 of the Family Law Act, S.B.C. 2011 c. 25 [FLA]. [5] The first of those applications was dismissed by order of Madam Justice Wilkinson, made February 28, 2023. In her reasons, indexed at 2023 BCSC 2511, Wilkinson J. noted that the onus on the party seeking exclusive occupancy is to establish that continuing shared use is a practical impossibility, in the sense that the living situation would be objectively intolerable or unacceptable. She characterized this legal threshold, appropriately, as a high one. She found that the evidence of conflict within the House failed to meet that standard, and that "[t]he conflict, if it does exist, appears to be between the claimant and Mr. Narayan's daughters" (para. 30). [6] Mr. Narayan filed a second such application in July 2024. The application was heard and

dismissed by order of Associate Judge Bilawich, made August 29, 2024, with reasons indexed at 2024 BCSC 2631. Associate Judge Bilawich was not persuaded that there had been any material change in circumstances since the previous hearing, such as to justify a re-hearing of the exclusive occupancy issue. He noted the many conflicts in the evidence tendered. He also noted the claimant's evidence that the real conflict within the House continued to be between her and Mr. Narayan's children, and that the two of them, when alone in the House, have relatively congenial coexistence. In view of these conflicts, the trial judge, he held, would be better positioned to hear evidence from the parties, to benefit from cross-examination, and to make findings of fact on contested issues. [7] Both those applications were met with the claimant's objection that Mr. Narayan could not rely on s. 90 of the FLA, because it only addresses the right of exclusive occupancy as between spouses, and Mr. Narayan denies that the claimant was his spouse. Justice Wilkinson declined to decide that issue, deciding the application instead on the merits; Bilawich A.J. expressed skepticism as to whether this objection could prevent the Court from making a s. 90 order, given that one of the goals of that type of order is to promote the safety of the parties. [8] To head off that objection, Mr. Narayan brings this

application as one for interlocutory injunctive relief, on the basis that the claimant is a trespasser. As set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 1994 CanLII 117, to obtain such an injunction an applicant must satisfy the Court: a) that there is a serious question to be tried; b) that the applicant will suffer irreparable harm in the event the injunctive relief is not granted; and c) that the balance of convenience favours the granting of an injunction. [9] In the first instance, Mr. Narayan submits that the second and third prongs of the RJR-MacDonald test need not be considered where an applicant makes out a prima facie case of trespass. He says he meets that test through being the undisputed owner of title to the House. Alternatively, if it is found that the claimant has an arguable case, Mr. Narayan says that he should succeed on the second and third prongs, as well: that he is vulnerable due to poor health and illiteracy, and would suffer irreparable harm from the stress cased by the claimant continuing to reside in the House; and that the balance of convenience lies in his favour, as the claimant is co-owner of another property she could live in. [10] Mr. Narayan's recasting of his application as one for an interlocutory injunction is problematic in two respects. [11] First, without it having been determined that the claimant was

not Mr. Narayan's spouse, she should not be deprived of the protection afforded her through the high-threshold test that applies on a s. 90 application. Even if Mr. Narayan were able to persuade me that the RJR-MacDonald factors align in his favour, he would still be required to meet the standard of proving on a balance of probabilities that the circumstances meet the threshold of continuing co-occupation being a practical impossibility. [12] Second, the issue of Mr. Narayan's entitlement to an interlocutory injunction on the basis of trespass could have been advanced on the previous applications. Though issue estoppel does not arise, as the previous dismissals of Mr. Narayan's applications were not in the nature of final orders, I find that with respect to the circumstances that were, or could have been, in evidence on the previous applications, the raising of a new legal theory entitling Mr. Narayan to exclusive possession, on a third attempt to obtain interlocutory relief, brings the administration of justice into disrepute, and is an abuse of process, as that term is explained in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. [13] Mr. Narayan tenders some affidavit evidence of events that have transpired since the prior hearings. I am not able to find, on this evidence, that there has been a material change in the parties' circumstances, such that the "practical

impossibility" requirement is satisfied. Some of the incidents described are trivial. Others, that might arguably be more substantive, are denied by the claimant. Conflicts in the evidence remain. There is no medical evidence of Mr. Narayan's health having suffered serious decline, since the prior applications, due to the claimant occupying the House. [14] I am, at this point in the trial, in no better position to resolve these conflicts in the evidence than Bilawich A.J. was. The claimant's case was closed without the claimant having been cross-examined on these alleged new circumstances. Mr. Narayan, the only witness who has been called for the defence at this point, did not testify to any such changes in circumstances in his examination-in-chief, and his cross-examination has barely begun. It would clearly be premature, and most improper, for me to make any findings of fact at this stage of the trial that required determinations of the parties' credibility. [15] For these reasons, the application is dismissed. [16] The claimant will have her costs of this application as costs in the cause, under SCFR, R. 16-1(9). "A. Saunders J."