May 31, 2021
Love in the virtual world: Can a spousal relationship be formed online?
Vancouver & North Vancouver family lawyer discusses spousal and “marriage-like” relationships that may occur in the virtual world
In a previous blog post, I discussed the possibility that people who are not physically living together full-time but share their lives in some meaningful way may be found to be spouses under or Family Law Act.
A recent BC Supreme Court decision suggests that it may even be possible for a spousal relationship to take place in the virtual world.
In the case of Han v Dorje 2021 BCSC 939, Ms. Han applied to amend her notice of family claim to seek spousal support. The issue was whether Ms. Han and Mr. Dorje lived in a marriage-like relationship so as to give rise to a potential entitlement to spousal support.
The question the court grappled with is: can a secret relationship that began online and never moved into the physical world be like marriage-like?
In this case, the parties did not live together and they only met in person four times: twice very briefly in a public setting; a third time in private, when Ms. Han says Mr. Dorje sexually assaulted her; and a fourth and final occasion, when she informed Mr. Dorje she was pregnant with his child.
Ms. Han claimed that what began as a non-consensual sexual encounter evolved into a loving and affectionate relationship. That relationship occurred almost entirely over private text messages. The parties rarely spoke on the telephone, and never saw one another during the relationship, even over video. Ms. Han says they could not be together because Mr. Dorje is forbidden by his station and religious beliefs from intimate relationships or marriage, but that they formed a marriage-like relationship that lasted from January 2018 to January 2019.
The facts
Mr. Dorje is a high lama of the Karma Kagyu School of Tibetan Buddhism. He has been recognized and enthroned as His Holiness, the 17th Gyalwang Karmapa. His true home is in Tibet, but he currently resides in India.
Ms. Han is a former nun of Tibetan Buddhism. In October 2016, Ms. Han began a three-year, three-month meditation retreat at a monastery in New York State. Mr. Dorje was present at the retreat twice during the time Ms. Han was at the monastery.
Ms. Han made various allegations in court, including the following:
- On October 14, 2017, Mr. Dorje sexually assaulted her in her room at the monastery, and that she became pregnant from the assault.
- Dorje provided Ms. Han with his email address and a cellphone number, and, according to Ms. Han, said he would “prepare some money” for her.
- Ms. Han abandoned her plan to become a nun, left the retreat and returned to Canada. She never saw Mr. Dorje again.
- After Ms. Han returned to Canada, she and Mr. Dorje began regular communication over an instant messaging app called Line. They also exchanged emails and occasionally spoke on the telephone.
- The parties expressed care and affection for one another in their text communications. The parties wrote in a private shorthand, sharing jokes, emojis, cartoon portraits and “hugs” or “kisses”.
- Ms. Han expressed concern that her child would be “illegitimate”. She appears to have asked Mr. Dorje to marry her, and he appears to have responded that he was “not ready”.
- 2018, Mr. Dorje transferred funds in various denominations to Ms. Han as follows:
- a) $50,000 CDN to deliver the child and for postpartum care, she was to receive at a facility in Seattle;
- b) $300,000 CDN for the first year of the child’s life;
- c) $20,000 USD for a wedding ring, because Ms. Han wrote “Even if we cannot get married, you must buy me a wedding ring”;
- d) $400,000 USD to purchase a home for the mother and child.
On June 19, 2018, Ms. Han gave birth to a daughter in Richmond, B.C. On September 17, 2018, Mr. Dorje wrote via text, ”Taking care of her and you are my duty for life”.
Ms. Han’s expectation was that the parties would live together in the future. She says they planned to live together. Those plans evolved over time. Initially, they involved purchasing a property in Toronto, so that Mr. Dorje could visit when he was in New York. They also discussed purchasing property in Calgary or renting a home in Vancouver for that purpose. Ms. Han eventually purchased a condominium in Richmond using funds provided by Mr. Dorje.
Ms. Han deposes that the parties made plans for Mr. Dorje to visit her and meet the child in Richmond. In October 2018, however, Mr. Dorje wrote that he needed to “disappear” to Europe.
In January 2019, Ms. Han lost contact with Mr. Dorje.
The court’s analysis
The court stated that to claim spousal support, Ms. Han must prove that she lived with Mr. Dorje in a marriage-like relationship (note the two-year onus was not required as they have a child).
The determination of whether a couple lives in a marriage-like relationship is a fact-specific inquiry that judges must make on a “holistic” basis, having regard to all of the evidence. There are certain common factors that most marriage-like relationships have (although these factors are not all present in all cases). Namely, the couple:
- Physically reside together or in some way.
- Are intimate and/or have sexual relations.
- Conduct domestic duties together.
- Socialize together and represent themselves as a couple.
- Have a level of economic interdependence/support and they may share expenses and/or finances.
The judge found that although the only factor present, in this case, was economic support, and that the money Mr. Dorje provided to Ms. Han at her request was an expression of his commitment to her in circumstances in which he could not commit physically. The payment of money could be seen as a promise of continued emotional and financial support for Ms. Han, or, in Mr. Dorje’s own words, “Taking care of her and you are my duty for life”.
The court did not find it significant that Mr. Dorje agreed to provide funds for Ms. Han to purchase a wedding ring given she demanded and it was not a mutual symbol. That said, the court found it was relevant that Mr. Dorje provided $20,000 USD to Ms. Han for something she wanted that was of no benefit to the child.
The court held that the parties appear to have expressed genuine care and affection for one another. They appear to have discussed marriage, trust, honesty, finances, mutual obligations and acquiring family property. These are not matters one would expect Mr. Dorje to discuss with a friend or a follower, or even with the mother of his child, without a marriage-like element of the relationship.
The court’s conclusion
In conclusion, the court stated that the definition of a spouse in the Family Law Act does not require that the parties live together, only that they live with another person in a marriage-like relationship. In Ms. Han’s case, however, almost all of the traditional factors are missing. The fact that Ms. Han and Mr. Dorje never lived under the same roof, never shared a bed, and never even spent time together in person will militate against a finding they lived with one another in a marriage-like relationship. However, the traditional factors are not a mandatory checklist that confines the “elastic” concept of a marriage-like relationship.
As stated by the court, if the COVID-19 pandemic has taught us nothing else, it is that real relationships can form, blossom, and end in virtual worlds.
Ms. Han was given leave to amend her pleadings.
What’s the takeaway?
It appears that the court’s becoming exceedingly more open to more liberal interpretations of what it means to spouses living in a “marriage-like” relationship. This progressive approach may have received a boost from the COVID-19 pandemic as people have sought connection through the virtual world. What this means is that couples who would not normally fit into the mould of a marriage-like relationship may in fact be in one, which has significant legal implications if they separate. Therefore, it is prudent that if you are in any relationship, you should consult a family law lawyer to discuss your potential rights and obligations.
NOT LEGAL ADVICE. Information made available on this website is for information purposes only and is not legal advice. Do not rely on this information, nor take or fail to take any action, based upon this information. Do not disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Contact me here to discuss any specific legal issues.
May 27, 2021
Family Law Agreements Part 2: Can you rely on them?
Vancouver & North Vancouver family law lawyer discusses the reliability of family law agreements
In my last blog, I discussed the circumstances under which a family law agreement may be set aside. Recently, the BC Court of appeal in Dhaliwal v. Dhaliwal, 2021 BCCA 72 grappled with this issue – namely- whether to set aside the terms of a marriage agreement.
In this case, Mr. Dhaliwal and Ms. Dhwaliwal were married for approximately ten years. The parties each had their own career at the time they met, and this was a second marriage for both of them. Ms. Dhaliwal moved from India, where she had an established academic career, to Richmond, BC, with her 13‑year‑old son to live with Mr. Dhaliwal. Mr. Dhaliwal was a widower and had three children who were adults when he married Ms. Dhaliwal. He had significantly more assets than Ms. Dhaliwal. He was 56 and she was 43 years old when they married.
The marriage agreement provided that the parties would retain the property they brought into the marriage as well as any increase in value. Instead of the usual division of family property, Ms. Dhaliwal would receive a lump sum which increased based on the duration of the marriage. The marriage agreement precluded spousal support. The agreement and marriage occurred at a time when the applicable family law legislation was the predecessor legislation of the current Family Law Act, being the Family Relations Act (the “FRA”). Mr. Dhwaliwal did not disclose all of his assets in the marriage agreement.
From Mr. Dhaliwal’s perspective, the agreement was intended to keep the parties’ assets separate. He had acquired significant assets before marriage, and he wanted to keep these for himself and his children’s future.
They separated after ten years and as a result, Mr. Dhaliwal was required under the agreement to make a lump-sum payment of $450,000 to Ms. Dhaliwal. Ms. Dhwaliwal applied to the BC Supreme Court to set the agreement aside as she wanted a larger payment.
In considering its enforceability, the trial judge identified the two-stage test described in Miglin v. Miglin 2003 SCC 24 (more fully discussed in my last blog): (1)whether the agreement was fair at the time of its making, and (2) whether it is fair now, at the time of its operation.
A court may intervene to override a domestic contract where vulnerability or a flaw in the negotiation process has occurred. The court must consider whether there were any circumstances of oppression, pressure, or other vulnerabilities.
Regarding the first stage of the test, the trial judge concluded that the circumstances were fair. While the respondent had not fully disclosed the value of all of his assets, the claimant received independent legal advice and was aware that she could seek more information, but chose not to. Further, she was concerned about her ability to acquire a home should their relationship end, which contributed to the lump sum payment structure. This demonstrated an ability to negotiate the agreement. The trial judge put particular weight on the claimant’s receipt of independent legal advice and ultimately upheld the agreement’s fairness at the time of its making.
The next step required the trial judge to consider the fairness of the agreement at the time of the trial. The trial judge considered the statutory factors set out at s. 65(1) of the FRA for the reapportionment of family property. Of particular importance to the trial judge’s analysis was that virtually all of the respondent’s assets had been acquired well before the marriage and that the claimant had not made any significant contribution to the respondent’s assets or career. Further, there had not been any unforeseen change in circumstances. The judge also considered that the receipt of spousal support supported the fairness of the agreement.
The Court of Appeal upheld the trial judge’s conclusion on the first stage of the analysis. However, the Court of Appeal found that the trial judge had overlooked two key facts in reaching her conclusions that the operation of the agreement at the time of trial was in line with the parties’ original contemplations.
The judge did not consider that the basis for the lump‑sum payment to Ms. Dhaliwal, as stated in the agreement was to enable Ms. Dhaliwal to purchase a home. The judge did not mention the specifics regarding the value of the family home which had dramatically increased from a value of $875,000 at the time of the agreement to a value of $1,900,000 at the time of trial. In other words, the family home value increased by just over 100%– an increase which, as found by the trial judge, was “in line” with the housing market in the Lower Mainland during this time.
There was no evidence or finding that the parties contemplated the dramatic increase in value when contemplating that the lump‑sum payment provided for in the agreement would enable Ms. Dhaliwal to acquire a home.
Leaving the agreement unaltered would mean that Mr. Dhaliwal would be the sole beneficiary of the windfall increase in value of the family home, despite the facts that the growth in the real estate market occurred during the marriage and had a disproportionately negative impact on Ms. Dhaliwal’s ability to acquire a home.
The Court of Appeal said the exceptionally large increase in the value of residential real estate in the Lower Mainland over the course of the parties’ marriage, relative to the clear goal of the lump‑sum payment provided for in the agreement, was such a significant factor in considering whether the outcome of the agreement operated fairly that it had to be considered by the judge.
The court of appeal also found that the trial judge erred in assuming that the parties contemplated the scale of disparity in the parties’ financial circumstances at the marriage breakdown, given that the respondent had not disclosed the full scope of his wealth at the time the agreement was made.
The Court found that the agreement was significantly unfair, but that this unfairness could be remedied by allowing the claimant to share equally in the increase in value of the family home. This resulted in an increase in the lump sum payment payable to the claimant from the $450,000 provided for in the agreement to $525,000.
So, what is the takeaway?
Although courts will make their best efforts to uphold family law agreements, if circumstances exist at the time of separation that were not contemplated or planned for by the parties at the time they negotiated the family law agreement, then the court may set the family law agreement aside to achieve fairness. Further, this decision highlights the importance of financial disclosure in a family law agreement – if a party fails to disclose assets at the time the family law agreement is negotiated, the agreement is vulnerable to being set aside in the future. Lastly, this case is a good reminder that a spouse having legal advice at the time of signing does not bulletproof the agreement – if the agreement is significantly unfair or flawed in other ways (see a full listing of these factors in my last blog), the fact that spouse received independent legal advice may not prevent it from being set aside.
If you are going to enter into a family law agreement of any sort, make sure that both you and your spouse are entering into the agreement on mutually acceptable terms, intentionally and with full and accurate financial disclosure. Make sure that you each have the opportunity to obtain adequate independent legal advice and that you and your spouse put your mind to the possible circumstances that may unfold in the future and how you intend your agreement to address those changing circumstances.
NOT LEGAL ADVICE. Information made available on this website is for information purposes only and is not legal advice. Do not rely on this information, nor take or fail to take any action, based upon this information. Do not disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Contact me here to discuss any specific legal issues.