Practice — Parties — Striking out parties — Lack of cause of action.

   Motion to strike out a party.  The plaintiff wife and the defendant husband were married in 1989 and separated in 1993. The husband filed for divorce in the Vancouver registry on January 30, 1997.  He filed another petition for divorce in the New West Minster registry on April 2, 1997 and discontinued the Vancouver action.  He obtained an order for divorce on May 23, 1997 when the wife made no response to the petition.  He then married another woman in July 1997.  The wife filed a motion in the New West Minster divorce action to set aside the divorce as a nullity claiming that the petition had never been served on her.  The wife also filed a separate action against her husband and the husband's sister in law, who claimed to have served the wife with the petition.  The wife claimed the same relief that she had already claimed in the nullity proceedings and alleged that the defendants colluded, connived and conspired to subvert the administration of justice.  In her claim, the wife sought costs and the right to discovery against the sister in law.  At issue was whether there was any cause of action against the sister in law.

   HELD:  Motion granted.  The claim repeated the relief already sought in the nullity claim and related to a matrimonial cause. Pursuant to the Rules of Court, no cause of action could be joined with a divorce proceeding.

Statutes, Regulations and Rules Cited:

   British Columbia Supreme Court rules, Rule 60B(4).

Counsel:

¶ 1      McKINNON J.:— The parties to this and other "companion" actions have managed to create a scenario that is so convoluted, it is hard to imagine it was not concocted by a fiction writer.

¶ 2      To the extent that I can understand what has transpired I offer the following:

¶ 2a      The plaintiff and the defendant Kulwinder Singh Brar married in India in 1989 and separated in B.C. in 1993. There are two children of the marriage and another to whom it is claimed the defendant stands in loco parentis.

¶ 2b      A petition for divorce was commenced by the plaintiff in 1994 but discontinued when an attempt at reconciliation was made.

¶ 2c      The defendant "voluntarily" paid maintenance of $150 per month for the three children to January, 1996.

¶ 2d      In January 1996 he pleaded guilty to an assault charge concerning the plaintiff's father which occurred during a family dispute involving the plaintiff.

¶ 2e      The wife commenced a Family Relations Act proceeding in March, 1996.  Interim maintenance for the plaintiff and the three children consequent upon this proceeding was ordered payable at $250 per month per person on her application before the Master made June 21, 1996

¶ 2f      On August 9, 1996, in a summary trial before Fraser J., the plaintiff, in action #F960195 obtained permanent custody of the three children and various other orders of a permanent nature resolving most issues but for a divorce and maintenance.  The issue of permanent maintenance for both plaintiff and the children was adjourned generally. In the motions for interim and permanent relief, the husband failed to attend and the wife was given her costs.

¶ 2g      The husband obtained an order to release the marriage certificate, filed in the first divorce proceeding.

¶ 2h      The husband filed for divorce in the Vancouver registry under #D104057 on January 30, 1997.

¶ 2i      The husband filed another petition for divorce in the New Westminster Registry on April 2, 1997 under #D039089. He discontinued the Vancouver divorce action on April 23.

¶ 2j      The husband's sister-in-law, the other defendant, Harpreet Kaur Brar, deposed that she served this (3rd) petition on the plaintiff on April 8, 1997.

¶ 2k      No response to the petition having been made, the husband obtained a "desk order divorce" on May 23, 1997.  This order had a handwritten addendum purporting to resolve the issue of maintenance by providing that the Master's earlier interim order be made permanent.  Consequent upon this "divorce", the husband "married" another in July, 1997.

¶ 2l      In September, 1997 the wife filed a motion in the New Westminster divorce action to set aside the divorce as a nullity, claiming the petition had never been served on her.

¶ 2m      On October 27 the wife filed this action (#E004275) in which the husband and Harpreet Kaur Brar are defendants.  On November 27 an amended writ was filed claiming, among other things, for the nullity order sought in the earlier motion and for increased costs against both defendants.  She also asked that Harpreet Kaur Brar be "examined for discovery pursuant to the rules."

¶ 2n      The defendant Harpreet Kaur Brar, filed a motion on November 27 seeking to be removed as a defendant.

¶ 2o      The plaintiff wife alleges in the E004275 action, that her husband and the defendant Harpreet Kaur Brar "colluded, connived, and conspired to subvert the administration of justice , and condoned the fabrication of evidence to deceive the court."   Curiously, neither the original nor the amended statement of claim seeks any relief from Harpreet Kaur Brar but costs, and the right to discovery, which would be available in any case without court order, assuming she was a proper party.

[Paragraph numbers 2a to 2o were assigned by QL.]

¶ 3      Counsel for the plaintiff wife and defendant husband agreed that several days would be needed to address the motion seeking a nullity and so two days in June, 1998 were obtained from the trial registry for this purpose.  It seems that counsel for the wife then decided he needed to commence a separate action in order to obtain discovery evidence from the person purporting to have served the petitioner and for the purposes of costs against that person. Clearly, if she was not a party, neither of those avenues would be open to him.

¶ 4      I am of the view that this proceeding, #E004275, discloses no cause of action against the defendant Harpreet Kaur Brar and insofar as it refers to the husband, it merely repeats the same relief requested in the nullity claims set to be heard in June, 1998.  It is a statement of claim seeking a declaration of nullity and costs, nothing more.  In addition, it relates to a "matrimonial cause", and if there is some implied cause of action that I cannot discern, it would be barred by R. 60B(4) of the Rules of Court which stipulates: "Unless the court otherwise orders, no cause of action, other than a claim under the Family Relations Act, may be joined with a divorce proceeding."

¶ 5      The wife's claim for a nullity can be dealt with at the June hearing.  Harpreet Kaur Brar will no doubt be required as a witness, since the thrust of the claim is that service of the Petition was never effected upon the wife. These are issues of credibility and, depending upon the outcome, might well lead to a criminal investigation.  There are many suspicious aspects to this strange, convoluted affair but its resolution is not enhanced by this action.

¶ 6      The wife is perfectly entitled to bring an action for damages against Harpreet Kaur Brar, although its success might well depend upon the outcome of the nullity proceeding. It would not, however, be tried with the nullity issue unless by leave of the court, something I am not presently asked to consider.

¶ 7      The defendant Harpreet Kaur Brar is entitled to an order that sofar as she is concerned, no cause of action has been disclosed.  She will therefore be removed as a defendant. This action can then be set for hearing on the June date when the motion seeking a nullity is to be heard.

¶ 8      Although I see no benefit in maintaining this action against the defendant husband in its present form, I can see no particular harm either.  It essentially tracks the same relief as the notice of motion, with some additional aspects concerning costs.  Perhaps other relief against the husband might be sought.  I do not know.  In any event, given the disclosed claims, these matters can conveniently be heard with the nullity motion, subject to the direction of the hearing/trial judge.

¶ 9      The defendant Harpreet Brar is entitled to her costs.

McKINNON J.

QL Update:  980216
cp/d/sfr/DRS

Mr. Justice MacKinnon