Nandwani v. Nandwani et al., (2014) 311 Man.R.(2d) 240 (QB)

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 04, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 311 Man.R.(2d) 240 (QB);2014 MBQB 216

Nandwani v. Nandwani (2014), 311 Man.R.(2d) 240 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. NO.013

Sanjay Prakash Nandwani (plaintiff) v. Kunwar Sen Nandwani, Chander Kanta Soota, Indra Ahuja, Ashok Arora and Meena Chawla (defendants)

(CI 10-01-64487; 2014 MBQB 216)

Indexed As: Nandwani v. Nandwani et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

November 4, 2014.

Summary:

Joanne Nandwani gave birth to Sanjay in May 1969, while she and her husband (Ved) were living together in India. Ved immigrated to Canada in October 1969. Ved's brother, Surendra, began living with Joanne and raised Sanjay as if he were his own son. Joanne and Ved divorced in 1981. Joanne married Surendra. Ved passed away while a resident of Manitoba. As there was an intestacy in Ved's will respecting the residue of his estate, the residue was to go to Sanjay if he was Ved's issue, and to Ved's siblings if he was not. Probate proceedings resulted in an order directing Sanjay to file a statement of claim for a determination of whether he was the issue of Ved within the meaning of s. 4(2) of the Intestate Succession Act. Sanjay filed a statement of claim as a general civil proceeding, naming five of Ved's siblings (not Surendra) as defendants. The siblings filed a statement of defence, asserting that Surendra was Sanjay's natural father. The siblings moved for an order compelling Sanjay and Surendra to provide DNA samples to allow a paternity test to be performed. One of the siblings applied for a DNA order under s. 21 of the Family Maintenance Act. All of the parties and Surendra were residents of India. The motion and the application were heard together.

The Manitoba Court of Queen's Bench, in a decision reported at 271 Man.R.(2d) 57, allowed the motion and ordered that Sanjay and Surendra provide suitable bodily samples using the buccal swab method for the purposes of DNA paternity testing. The court dismissed the Family Maintenance Act application. Sanjay appealed the order allowing the motion.

The Manitoba Court of Appeal, in a decision reported at 288 Man.R.(2d) 228; 564 W.A.C. 228, allowed the appeal, holding that the Queen's Bench erred in exercising its inherent jurisdiction to order that Surendra, a non-party, be required to provide bodily fluids for DNA testing. The court stayed the enforcement of the order against Sanjay, unless, and until, a DNA specimen was voluntarily given by Surendra or was otherwise ordered to be obtained from him. Given the novel nature of the case, there were to be no costs on appeal or in the court below. Sanjay moved for summary judgment.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at [2014] Man.R.(2d) Uned. 15, dismissed the motion. Sanjay appealed.

The Manitoba Court of Queen's Bench allowed the appeal and granted Sanjay summary judgment.

Infants - Topic 2503.2

Parentage of children - Determination of parentage - Presumption of paternity - Ved Nandwani passed away while a resident of Manitoba - As there was an intestacy in his will respecting the residue of his estate, the residue was to go to Sanjay if he was Ved's issue, and to Ved's siblings if he was not - Sanjay filed a statement of claim, naming five of Ved's siblings as defendants - Sanjay sought a determination of whether he was the issue of Ved within the meaning of s. 4(2) of the Intestate Succession Act - The siblings filed a statement of defence, asserting that their brother (Surendra) was Sanjay's natural father - All of the parties and Surendra (a nonparty) were residents of India - Sanjay moved for summary judgment - A Master dismissed the motion - The Manitoba Court of Queen's Bench allowed Sanjay's appeal - The central issue, whether Sanjay was Ved's son, was one of fact - No witness deposed to a fact which was directly contradicted by another - In large part, the siblings' case was based on inference from things heard by them or documents produced by them - Section 23 of the Family Maintenance Act confirmed the common law presumption of legitimacy, but reduced the standard of proof on rebutting the presumption from proof beyond a reasonable doubt to proof on a balance of probabilities - The only realistic chance that the siblings had of rebutting the presumption was by persuading a court to order DNA tests, by persuading Surendra to voluntarily comply and by obtaining a result that supported their position - As the Court of Appeal had foreclosed the possibility of obtaining DNA evidence, there was no genuine issue for trial - The court could achieve on this motion a fair and just determination of the issues in a proportionate, more expeditious and less expensive means than would be required if a trial were necessary - The siblings put their best foot forward, but there was little or nothing to mount an effort to rebut the presumption, certainly nothing proportional requiring a trial - While Ved left an estate with more than modest assets, there was nothing to justify spending the assets on a trial and the reality was that a judgment for costs against the siblings was not registerable even if there was a reciprocal enforcement of judgment legislation in India.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Infants - Topic 2503.2 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Infants - Topic 2503.2 ].

Cases Noticed:

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 2].

Chaves et al. v. Shum et al. (2004), 184 Man.R.(2d) 164; 318 W.A.C. 164; 2004 MBCA 56, refd to. [para. 10].

Bellboy Corp. v. 3763383 Manitoba Ltd. (2002), 164 Man.R.(2d) 17; 2002 MBQB 69, refd to. [para. 10].

Hydro Electric Board (Man.) v. Inglis (John) Co. et al., [2000] Man.R.(2d) Uned. 183; 2000 MBQB 218, refd to. [para. 10].

Pine Falls Development Corp. v. Alexander (Rural Municipality) (2014), 309 Man.R.(2d) 43; 2014 MBQB 163, refd to. [para. 11].

Ryan v. Canadian Farm Insurance Corp. et al. (2014), 309 Man.R.(2d) 286; 2014 MBQB 178, refd to. [para. 12].

Statutes Noticed:

Family Maintenance Act, R.S.M. 1987, c. F-20; C.C.S.M., c. F-20, sect. 23 [para. 14].

Counsel:

Sidney Green, Q.C., for the plaintiff;

Harvey I. Pollock, Q.C., and Wayne Forbes, for the defendants.

This appeal was heard by Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 4, 2014.