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Saturday April 1, 2006
IMMIGRATION
Jilted sponsor obtains damages against spouse for deceit in fraudulent immigration marriage
By WILLIAM MACINTOSH
In a precedent setting decision dated March 16 and released Friday last week, Mr. Justice Edwards of the BC Supreme Court awarded damages to a sponsor for tortious deceit in respect of inducement to marry and sponsor her immigrant husband to Canada.
The story began in 1999 when the plaintiff, Madhavi Raju, went to Fiji to marry her husband, Rajendra Kumar. Following the marriage Madhavi returned to Canada to begin the process to sponsor her husband to Canada. It took several years as Rajendra was initially refused a visa. Madhavi persevered and successfully appealed the refusal to the Immigration and Refugee Board.
Rajendra came to Canada in December 2001, with Madhavi having full expectation that her marital relationship with Rajendra would be lasting. Her expectations were soon dashed. In less than three weeks Rajendra left the family home for good. He initially hid from Madhavi. She was intent on finding her husband and tracked him down in Edmonton in September 2002. He crushed all her hopes by rejecting her absolutely. At the first available opportunity in early 2003 Rajendra filed for divorce. Unknown to Madhavi, Rajendra had continued an extra marital relationship with another woman in Fiji. He continued the relationship even after denying its existence after Madhavi received anonymous calls from Fiji about the relationship.
In an understatement, the Court found that Rajendra's behaviour was that of a cad. The Court determined that Rajendra had misrepresented his true feelings towards Madhavi and his true motive for marrying her was in order to induce her to marry him so he could emigrate to Canada. The Court found that Madhavi married Rajendra relying on his misrepresentations of true affection and a desire to build a family with her in Canada. Madhavi was awarded special damages for the costs of marrying Rajendra in Fiji, the cost of communicating with him while he was in Fiji and the costs of sponsoring him to Canada, including the cost of her appeal to the Immigration and Refugee Board. The special damages amounted to about $ 11,000. Madhavi was awarded general damages of $ 10,000 for for hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children. The Court made no award of punitive damages.
The decision has established a precedent. Prior to this decision the generally accepted view of the law was that a spouse had no right to sue her husband under common law for any tort, including deceit. The policy was succinctly stated by Mr. Justice Macfarlane of the B.C. Court of Appeal in a 1987 decision named Said v. Said. He said that “The courts have consistently refused to grant damages for deceit when a marriage has not been invalidated, and when the representation has extended only to the quality of the marriage. The fact that the husband had an improper motive for marriage, or was not as suitable a candidate as the wife had thought, has never been a ground for invalidating the marriage, or for awarding damages”.
He went on to state “The courts are involved in the results flowing from invalid marriages, from divorce, and from broken marriages. The courts cannot become involved in enquiries relating to the quality of a marriage, the motives and expectations of the parties, the reasons behind the marriage, matters of conscience and the theological impact of the union upon the parties to a valid marriage. If the marriage is valid, all these concerns are collateral, not actionable. The parties to a valid marriage ought to be left alone to work out their differences with respect to such collateral questions.The parties to the marriage have their remedies under the Divorce Act, the Family Relations Act and otherwise. The remedies which the parties seek in this litigation are not ones which the law can provide.
The Court in Raju accepted the argument that the policy against inter-spousal lawsuits was abolished with the enactment of section 60 of the Law and Equity Act in 1985. That law states that for all purposes of the law of British Columbia: a married man has a legal personality that is independent, separate and distinct from that of his wife and a married woman has a legal personality that is independent, separate and distinct from that of her husband; that a married person has and must be accorded legal capacity for all purposes and in all respects as if the person were unmarried and that each of the parties to a marriage has the same right of action in tort against the other as if they were not married.
If upheld as the law in B.C., jilted spouses will be able to sue their fraudulent immigrant spouses for damages. It may also allow immigrants outside of Canada to sue fraudulent sponsors in Canada for damages, if the sponsor doesn't follow through with an intention to sponsor the immigrant to Canada in order to live with them.
The Raju decision only applies in B.C. If other provinces have laws similar to section 60 of the Law and Equity Act, the same arguments made in Raju may be successful in those provinces.
A determination of the immigrant spouse's intent in a civil proceeding does not prove the misrepresentation under a removal proceeding under the Immigration and Refugee Protection Act. Evidence that arises in the civil proceeding may subsequently be used in a removal proceeding, that might ultimately lead to the immigrant's deportation from Canada. For years the immigration authorities have been reluctant to start a removal proceeding against a fraudulent spouse unless there was certain proof of the immigrant's intentions. The Raju case shows that the intent may be proved without an explicit confession from the immigrant. Hopefully the Canada Border Services Agency will learn from Raju and take stronger efforts to remove fraudulent spouses from Canada, without the sponsor having to start their own civil proceeding.
William Macintosh is a Barrister and Solicitor who has been practising in the field of immigration law since 1984 and is a frequent contributor to The VOICE. Phone: (604) 684-8755.
