Divorce is a trying time emotionally, and as we’ve seen time and time again, these proceedings can become highly adversarial very quickly. However, no matter how often our legal system has shown it does not pay to act maliciously, some people will always choose to employ these tactics. We have previously written about a case in which a husband’s malicious behaviour during family litigation resulted in nearly half a million dollars in litigation costs being awarded to his former wife.
In a recent decision out of British Columbia, a common-law couple’s separation became very acrimonious, and one partner resorted to making a false claim that his former partner had committed immigration fraud.
The couple originally met online in 2014 and at the time both were divorced or separated. The female partner, XG, had a son from her previous marriage who suffered from autism and was a teenager at the time. The male partner, CH, also had a child from his previous marriage, who was in his 20’s and lived independently. XG had moved from China to Canada with her son in January 2014, before she and CH met. At the time, her son was in Canada on a student visa, and XG on a visitor’s visa.
Shortly before meeting CH, XG purchased a home for approximately $1.1 million dollars. The couple initially interacted remotely after meeting and met in person in late 2014. They moved in together ten days later, choosing to live in XG’s home. In 2016, CH sponsored XG to enable her to obtain permanent residency in Canada.
The couple separated in early 2018. At trial, XG made a claim for spousal support in the amount of $1,000 per month for 12 months. In response, CH claimed spousal support of $1,500 per month for 2 years. In addition, CH sought 60% of the increase in the value of XG’s home, which had increased by just under $400,000 during the course of the relationship. XG sought an order that she was entitled to the full value of the increase.
In March 2018, CH sent a draft separation agreement to XG by email and included a hyperlink to Canada’s Immigration and Refugee Protection Act. Two weeks later, CH drafted a report to Canadian immigration authorities alleging that the relationship had been fraudulently entered into by XG for the purposes of obtaining permanent residency. He further alleged XG had been physically violent with him and that she had engaged in sex work, which would have been a violation of XG’s work permit. At trial, each of these assertions was found to be baseless, and beyond that, malicious:
An immigrant applying for permanent residency status is vulnerable to threats, intimidation, and unfounded accusations. I find that the claimant’s report to the immigration authorities and related serious allegations were maliciously made by him.
At trial, CH also admitted he had only sought spousal support as a response to XG’s claim for support.
The court made several observations in its assessment of CH’s claims:
The claimant’s sponsorship of the respondent was an economic characteristic of the parties’ relationship which arose during the course of the relationship. The claimant’s threats in relation to the respondent’s immigration status constitute “family violence”: FLA, s. 1(d), “family violence”.
Based on the above findings, the Court held that it would be unfair to award CH any part of the increase in the value of XG’s home or award CH spousal support. Ultimately, the Court awarded XG the support she claimed and ordered that XG was solely entitled to the full value of her home.
Once again, this case demonstrates that malicious and underhanded behaviour in the course of a divorce or separation will always be viewed in a negative light by Canada’s courts. Not only that, it will almost always have a negative impact on the perpetrator with respect to the final award, whether related to support or parenting. A person who acts with violence, spite or revenge in mind will rarely benefit under the law.
At Mincher Koeman, our lawyers understand the emotional and financial stress that family law matters, including those related to the division of property and support, can bring. Our team is dedicated to helping you move forward through your family law issues, taking the time to listen to your unique circumstances, understanding your goals, and working towards those goals. We can be reached by telephone at 403-910-3000 or online. Please reach out today to book your initial appointment.
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