Canada: For The Love Of Canada And Not Your Spouse – Weddings For Immigration And Not For Love

Last Updated: October 11 2018
Article by Polly Storey

In a recent decision by Justice Shergill, Charan v. Charan, 2018 BCSC 1537, the Court had the opportunity to consider the operation of family legislation in the context of a marriage where the spouse was "motivated less by her love for Mr. Charan, and more by her desire to immigration to Canada". The issues included the validity of the parties' first marriage ceremony, family property, and child and spousal support.

The was a 3-year marriage where the parties participated in a marriage ceremony in India and then a Hindu ceremony in Canada. The husband argued that the Indian ceremony was invalid because it did not comply with the statute under which it was purportedly performed and that the marriage was involuntary on his part. The judge rejected these arguments, noting that there was no expert evidence to rebut the presumption under the Evidence Act that the marriage was valid, and finding that the husband had not been coerced into the marriage. As to proof of validity, both parties testified that the marriage occurred. In addition, "the Canadian immigration authorities were satisfied that the Indian Marriage was valid. On the strength of the Indian Marriage, they permitted Ms. Charan and her son to immigration to Canada under the spousal sponsorship category": para. 40. As such, the judge concluded that the Indian marriage ceremony was valid.

As to spousal support, the wife argued that the sponsorship undertaking, which the husband had been required to make to Citizenship and Immigration Canada to provide for the food, care, lodging, transportation, and health needs of the sponsored spouse for a period of time, created a contractual obligation on Mr. Charan, such that he was contractually bound in the family law proceeding to fulfill the undertaking. Noting the purpose of the undertaking and a divergence in the case law in British Columbia and Ontario, the judge rejected this argument. However, it was a factor to consider, such that it formed part of the analysis dealing with compensatory and non-compensatory support. The judge found that the wife was not entitled to non-compensatory support, but that she had suffered economic disadvantage from the economic breakdown. This disadvantage was minimal, of short duration, and moderated by the wife's decision, even prior to the relationship, to explore avenues to move to Canada. She was entitled to lump sum support of $250, which was extinguished based on support provided by Mr. Charan after separation.

Finally, the judge considered family property, noting that the wife sought equal division of the former family home and the husband's pension and investment accounts. The judge valued the family home at the date of separation, finding that it would be significantly unfair to value it as at the date of trial. Mr. Charan had owned it prior to the relationship and had been solely responsible for all expenses associated with it during the marriage. She described her contribution to the family home as "minimal" and to the maintenance and preservation of the home as "non-existent". While there had been a small increase in the appraised value of the home, there had been a net loss of value due to mortgage liability. In these circumstances, the judge apportioned any increase in value of his excluded property to the husband. With respect to the husband's pension and investment accounts, the judge found that it would be significantly unfair to apportion any of the increase in value of these assets to the wife. Mr. Charan's pension contributions were automatically deducted without contribution by the wife, who had not contributed to his career. There was no evidence that she was detrimentally affected by the automatic contributions, that the parties had discussed the pension, or that she had any expectation that it would provide her with financial security. Similarly, there was no evidence that she was aware of the accounts during the relationship, that she was detrimentally affected by the contributions to these accounts, or that she expected to rely on them.

Charan v. Charan provides an interesting illustration of the operation of family law principles. The reasons indicate that the couple's relationship met the requirements for spousal sponsorship under the Immigration and Refugee Protection Act, which excludes spouses where the relationship was entered into primarily for the purpose of acquiring any status or privilege under the Act, such as permanent residence in Canada. In the family law case, in contrast, the judge found that in entering the relationship, the wife was motivated, in significant part, by a desire to move to Canada. This factor, together with the circumstances of the parties' relationship and circumstances overall, affected the application of the family law regime, again affirming that each case will turn on its own unique facts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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