Guest Post: Suing your Spouse for Fraudulent Marriage

(Note from Steven: I met John at the Canadian Bar Association British Columbia branch annual conference in San Francisco.  He is currently involved in some fascinating litigation representing an individual who sponsored a spouse only to watch her  immediately divorce him after she immigrated.  She also left him on the hook for tens of thousands of dollars in social assistance payments.  I invited John to some write articles for this blog, and here is the first of what will hopefully be many into this issue.)

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Marriage fraud happens. You meet a nice person. They live in another country. You get along. They or one of their relatives suggest that you get married. So you get married. You sponsor your spouse’s immigration to Canada and sign an undertaking that you will supply the necessities of life for three years and pay any social assistance that that person takes from the government. All of a sudden, your new spouse leaves. And doesn’t come back. No explanation. No fight. It’s just over. You realize that they never had any intention of staying married. And in the worst case scenario, you get a bill three years later from the government for social assistance that your ex-spouse received without your knowledge or consent.

Where your spouse has separated from you and you suspect that the marriage was fraudulent, there are steps you can take to protect yourself:

1. Inform Citizenship and Immigration Canada. Under new rules effective October 25^th, 2012, a sponsored spouse who does not legitimately live with their spouse for two years may be deported.
2. File for divorce.
3. Find out if your spouse has applied for or is receiving social assistance.
4. Consult a lawyer to determine if you can sue your spouse for fraudulent misrepresentation of marriage.

In 1985, the BC Legislature amended the Law and Equity Act to allow one spouse to sue another for damages. The causes of action are very limited, as much of the old common law on domestic relations was extinguished by statute. You can’t sue your spouse for damages for interfering with child access,[1] failing to pay child support,[2] being a jerk,[3] or having an extramarital affair.[4]

But the courts have held there are some causes of action that can proceed. One of them is fraudulent misrepresentation (tort of deceit) of marriage. In Raju v. Kumar,[5] a plaintiff wife successfully sued her husband on the grounds that he had fraudulently misrepresented his intent to be in a permanent marriage. The court found that the husband had a lover prior to meeting his wife, entered into the marriage as a means to enter Canada under his wife’s sponsorship, and that the husband was keeping open his option of either remaining in his country of origin with his lover or bringing her to Canada.

The wife received damages for the cost of pursuing the defendant’s immigration to Canada and $10,000 in damages for “hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children.”[6]  The four elements of the tort of deceit that must be proved at trial are: a false representation, knowledge of its falsity, an intent to deceive and reliance by the plaintiff with resulting damage.[7] These are hard facts to prove, but if it can be done, there may be a remedy in tort for your fraudulent marriage.

– John Nelson was called to the British Columbia bar in 2011. He is a sole practitioner serving both Victoria and Vancouver in the practice areas of civil litigation, family law, and administrative law. He can be reached at nelson@johnnelsonlaw.ca.