Nandwani v. Nandwani et al., (2011) 271 Man.R.(2d) 57 (QB)

• Judge: Dewar, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 30, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 271 Man.R.(2d) 57 (QB);2011 MBQB 231

Nandwani v. Nandwani (2011), 271 Man.R.(2d) 57 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. OC.023

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

(CI 10-01-64487)

Kunwar Sen Nandwani (applicant) v. Sanjay Prakash Nandwani and Surendra Kumar Nandwani (respondents)

(PR 08-01-77506)

(2011 MBQB 231)

Indexed As: Nandwani v. Nandwani et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Dewar, J.

September 30, 2011.

Summary:

Ved Nandwani passed away while a resident of Manitoba. The trial of the following issue was directed, namely: "Is Sanjay Prakash Nandwani the issue of the Deceased Ved Prakash Nandwani within the meaning of s. 4(2) of the Intestate Succession Act?". In the estate action, the plaintiff (Sanjay) alleged that Ved was his father (at the time that he was born, his mother was married to Ved). The defendants were five siblings of Ved. The siblings alleged that their brother, Surendra, was Sanjay's father. The siblings moved for an order compelling Sanjay and Surendra to provide DNA samples, to allow a paternity test to be performed. Surendra deposed that he was not Sanjay's father. 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 Manitoba Court of Queen's Bench, with respect to the interlocutory motion, 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 application under s. 21(3) of the Family Maintenance Act.

Conflict of Laws - Topic 2343

Family law - Legitimacy and paternity - Jurisdiction - [See both Devolution of Estates - Topic 450 ].

Devolution of Estates - Topic 450

Devolution - General - Children - DNA testing - Ved Nandwani passed away while a resident of Manitoba - The trial of the following issue was directed, namely: "Is Sanjay Prakash Nandwani the issue of the Deceased Ved Prakash Nandwani within the meaning of s. 4(2) of the Intestate Succession Act?" - In the estate action, the plaintiff (Sanjay) alleged that Ved was his father (at the time that he was born, his mother was married to Ved) - The defendants were five siblings of Ved - The siblings alleged that their brother, Surendra, was Sanjay's father - The siblings moved for an order compelling Sanjay and Surendra to provide DNA samples, to allow a paternity test to be performed - Surendra deposed that he was not Sanjay's father - The Manitoba Court of Queen's Bench ordered that Sanjay and Surendra provide suitable bodily samples using the buccal swab method - The siblings had not delayed their request; thus, the court did not feel bound by stare decisis to decide against them - Ordering DNA testing in advance of the trial date was not premature - There was plausible evidence that the presumption of paternity might be rebutted - There was jurisdiction either under s. 63 of the Court of Queen's Bench Act or the inherent jurisdiction of the court to make the order against Sanjay, and there was inherent jurisdiction to make the order against Surendra, a non-party - To refuse to order a nonintrusive means of obtaining a DNA sample from Surendra was inconsistent with the court's task to come to the right conclusion in the case before it - Surendra raised Sanjay; he represented to others that he was Sanjay's father; and he married Sanjay's mother following her divorce from Ved - The fact that both were resident in India did not foreclose an order - Sanjay had clearly attorned to the court's jurisdiction, and Surendra had notionally attorned - See paragraphs 26 to 59.

Devolution of Estates - Topic 450

Devolution - General - Children - DNA testing - Ved Nandwani passed away while a resident of Manitoba - The trial of the following issue was directed, namely: "Is Sanjay Prakash Nandwani the issue of the Deceased Ved Prakash Nandwani within the meaning of s. 4(2) of the Intestate Succession Act?" - In the estate action, the plaintiff (Sanjay) alleged that Ved was his father - The defendants were five siblings of Ved - The siblings alleged that their brother Surendra was Sanjay's father - 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 Manitoba Court of Queen's Bench dismissed the application - Section 20 of the FMA "was never intended to be used in a case in which a Manitoba court could declare the parentage of a child who has never, and whose alleged parents have never, resided in Manitoba. Section 20 contemplates a standalone application. The court's jurisdiction to determine parentage rests on the residence of at least one of the child, the mother, or the father. The existence of an estate action within Manitoba involving the estate of Ved is not sufficient to breathe life into the jurisdiction of a court to hear a s. 20 application regarding Surendra. ...  If a s. 20 application is not available, no DNA order under s. 21 is available. Finally, ... where paternity is at issue, s. 21 is intended to be used in a situation in which the genetic testing is to be performed on DNA samples from the child and from the alleged father and there exists a downside in the litigation if the order is not observed. In this case, there is no real interest held by Surendra in the estate litigation" - The court exercised its discretion against granting DNA testing since in the event of Surendra's failure to comply, it was not reasonable to draw an adverse inference against Sanjay - See paragraphs 60 to 64.

Cases Noticed:

Welstead v. Brown, [1952] 1 S.C.R. 3, refd to. [para. 31].

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, consd. [para. 34].

Miller v. Staples Estate et al. (2006), 260 N.S.R.(2d) 72; 796 A.P.R. 72; 2006 NSCA 140, refd to. [para. 36].

Best v. Revere (Paul) Life Insurance Co. (2000), 150 Man.R.(2d) 105; 230 W.A.C. 105; 2000 MBCA 81, consd. [para. 44].

Stein et al. v. Thames Bend Hybrids Inc. et al. (1998), 133 Man.R.(2d) 152 (Q.B.), consd. [para. 50].

A.L.J.T. v. K.J.J. (2011), 264 Man.R.(2d) 145; 2011 MBQB 91, refd to. [para. 64].

Statutes Noticed:

Family Maintenance Act, C.C.S.M., c. F-20, sect. 20 [para. 60]; sect. 21 [para. 61].

Counsel:

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

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

This interlocutory motion and application were heard before Dewar, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on September 30, 2011.