Nandwani v. Nandwani et al., (2013) 288 Man.R.(2d) 228 (CA)

• Judge: Hamilton, Monnin and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 12, 2012
• Jurisdiction: Manitoba
• Citations: (2013), 288 Man.R.(2d) 228 (CA);2013 MBCA 12

Nandwani v. Nandwani (2013), 288 Man.R.(2d) 228 (CA);

      564 W.A.C. 228

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. FE.030

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

(AI 11-30-07694; 2013 MBCA 12)

Indexed As: Nandwani v. Nandwani et al.

Manitoba Court of Appeal

Hamilton, Monnin and MacInnes, JJ.A.

February 7, 2013.

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 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.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter (territorial competence) - 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 - The siblings moved for an order compelling Sanjay and Surendra to provide DNA samples for paternity testing - One sibling applied under the Family Maintenance Act for a similar order - A motions judge granted the motion and dismissed the application - Sanjay appealed the allowance of the motion - The Manitoba Court of Appeal stated that jurisdiction simpliciter was determined pursuant to the real and substantial connection test - The subject-matter of the litigation pertained to the estate of Ved, who for many years had been, and at the time of his death was, a resident of Manitoba, and involved property situated in Manitoba - The motions judge clearly had jurisdiction simpliciter - Moreover, neither Sanjay nor the siblings disputed the judge's jurisdiction nor was there any basis to have done so - Both Sanjay and the siblings argued the motion and the application without any contest as to the court's jurisdiction - Any order(s) issued, including the subject order, would have extraterritorial effect - That, however, was of no concern, where jurisdiction simpliciter existed and no party raised the issue of forum non conveniens - See paragraphs 24 to 30.

Conflict of Laws - Topic 2343

Family law - Legitimacy and paternity - Jurisdiction - [See Conflict of Laws - Topic 603 ].

Conflict of Laws - Topic 2343

Family law - Legitimacy and paternity - Jurisdiction - 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 - The siblings moved for an order compelling Sanjay and Surendra to provide DNA samples for paternity testing - A motions judge granted the motion - Sanjay appealed - The Manitoba Court of Appeal stated that while the motions judge had jurisdiction simpliciter, the question remained whether he had jurisdiction to make the order which he did as against Sanjay and Surendra - Sanjay did not challenge the judge's conclusion that he had jurisdiction to make the order against him under s. 63(2) of the Court of Queen's Bench Act, or pursuant to the judge's inherent jurisdiction, if appropriate - In any event, the court was satisfied that the judge had jurisdiction - While it was a settled principle that a court would not make unenforceable orders, the possibility that the judge's order would not be recognized in India as against Sanjay was not a bar to the granting of the order where the Manitoba court had the power to enforce the order by the imposition of domestic sanctions, such as striking out Sanjay's pleading, should he refuse to comply with the order - See paragraphs 30 to 32.

Conflict of Laws - Topic 2343

Family law - Legitimacy and paternity - Jurisdiction - 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 - The siblings moved for an order compelling Sanjay and Surendra to provide DNA samples for paternity testing - A motions judge granted the motion - Sanjay appealed - The Manitoba Court of Appeal set aside the order as against Surendra - The motions judge erred in exercising his inherent jurisdiction to order that Surendra, a nonparty, provide bodily fluids for DNA testing - The order conflicted with s. 63(2) of the Family Maintenance Act which specified that an individual subject to such an order was to be a party - By reason of that error, no deference was owed to the judge's exercise of discretion - See paragraphs 56 to 75.

Devolution of Estates - Topic 450

Devolution - General - Children - DNA testing - [See second and third Conflict of Laws - Topic 2343 ].

Devolution of Estates - Topic 450

Devolution - General - Children - DNA testing - 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 - The siblings moved for an order compelling Sanjay and Surendra to provide DNA samples for paternity testing - Sanjay sought to rely on presumption of paternity - A motions judge granted the siblings' motion - The judge found that the presumption of paternity, now codified in s. 23 of the Family Maintenance Act, could be rebutted on a balance of probabilities - The judge concluded that there was at least some plausible evidence that the presumption might be rebutted - No issue had been raised that DNA testing was not scientifically reliable - The historical trial process had been lapped by science and a court should not shy away from utilizing reliable scientific evidence in making factual findings - The judge disagreed that DNA testing was premature and concluded that it had prima facie merit - Sanjay appealed - The Manitoba Court of Appeal held that the motions judge's conclusion was supported by the evidence and he committed no error in fact or law in so concluding - See paragraphs 46 to 55.

Infants - Topic 2503.2

Parentage of children - General - Determination of parentage - Presumption of paternity - [See second Devolution of Estates - Topic 450 ].

Infants - Topic 2516

Parentage of children - Filiation proceedings - Jurisdiction - [See Conflict of Laws - Topic 603 and second and third Conflict of Laws - Topic 2343 ].

Infants - Topic 2520

Parentage of children - Filiation proceedings - Evidence - Blood, tissue and DNA tests - [See second and third Conflict of Laws - Topic 2343 and second Devolution of Estates - Topic 450 ].

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - 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 - The siblings moved for an order compelling Sanjay and Surendra to provide DNA samples for paternity testing - A motions judge granted the motion - Sanjay appealed - Sanjay and the siblings asserted that the standard of review was correctness - The Manitoba Court of Appeal disagreed - Once the motions judge determined that he had jurisdiction to make the orders, the question of whether he should exercise that jurisdiction was a matter of discretion - If the judge made no reversible errors on fact or law, the order which he made was entitled to appellate deference - See paragraphs 36 and 37.

Cases Noticed:

Van Breda et al. v. Village Resorts Ltd., [2012] 1 S.C.R. 572; 429 N.R. 217; 2012 SCC 17, refd to. [para. 28].

R. v. A, B and C, [1990] 1 S.C.R. 995; 108 N.R. 214; 36 Q.A.C. 144, refd to. [para. 31].

Towers Ltd. v. Quinton's Cleaners Ltd. et al. (2009), 245 Man.R.(2d) 70; 466 W.A.C. 70; 2009 MBCA 81, refd to. [para. 37].

Bauman v. Kovacs (1986), 10 B.C.L.R.(2d) 218 (C.A.), refd to. [para. 54].

Miller v. Staples Estate et al. (2006), 260 N.S.R.(2d) 72; 796 A.P.R. 72; 2006 NSCA 140, refd to. [para. 54].

Best v. Revere (Paul) Life Insurance Co. (2000), 150 Man.R.(2d) 105; 230 W.A.C. 105; 2000 MBCA 81, refd to. [para. 57].

J. v. N. (1976), 69 D.L.R.(3d) 347 (Man. C.A.), refd to. [para. 65].

F.A.L. v. A.B.B. (1995), 102 Man.R.(2d) 251; 93 W.A.C. 251 (C.A.), refd to. [para. 65].

Montreal Trust Co. v. Churchill Forest Industries (Manitoba) Ltd. (1972), 21 D.L.R.(3d) 75 (Man. C.A.), refd to. [para. 70].

M.C. v. L.A.C. (1990), 66 D.L.R.(4th) 421 (B.C.C.A.), refd to. [para. 72].

M.V. v. W.P.V. (2003), 175 Man.R.(2d) 192; 2003 MBQB 110, affd. (2004), 192 Man.R.(2d) 50; 340 W.A.C. 50; 2005 MBCA 7, refd to. [para. 73].

Statutes Noticed:

Court of Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280, sect. 63(2) [para. 53].

Counsel:

S. Green, Q.C., for the appellant;

H.I. Pollock, Q.C., and W.P. Forbes, for the respondent.

This appeal was heard on September 12, 2012, by Hamilton, Monnin and MacInnes, JJ.A., of the Manitoba Court of Appeal. MacInnes, J.A., delivered the following judgment for the court on February 7, 2013.