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.
April 27, 2021
Family Law Agreements Part 1: Can you rely on them?
Vancouver & North Vancouver family law lawyer discusses the reliability of family law agreements
The goal of entering into a family law agreement is to achieve certainty, predictability, and finality, whether that be through a cohabitation/marriage (“prenuptial”) agreement with a new partner or a separation agreement with your ex.
A cohabitation/marriage (“prenuptial”) agreement will typically deal with the division of assets upon a possible separation and may also deal with spousal support. A separation agreement will often deal with all issues arising in a family’s situation, including parenting arrangements, property and debt division, child support and spousal support.
However, sometimes family law agreements may be set aside or varied by the BC Supreme Court if challenged by a spouse at a later date. Under the Family Law Act, our current provincial family law legislation, on an application by a spouse, the BC Supreme Court may set aside or vary a family law agreement if:
a. A spouse fails to disclose significant property or debts or other information relevant to the negotiation of the agreement. For example, a spouse fails to disclosure certain bank accounts or property owned in another jurisdiction, either intentionally or because they simply forgot.
b. A spouse takes improper advantage of the other spouse’s vulnerability, including their ignorance, need or distress. For example, one spouse convinces the other spouse that they do not need to speak to a lawyer before signing the agreement.
c. A spouse does not understand the nature or consequences of the agreement. For example, a spouse has language barriers that prevent them from understanding the deal that they are entering, or otherwise have a limited knowledge of the financial terms of the agreement.
d. Other circumstances that would, under the common law, cause all or part of a contract to be voidable. The other circumstances under common law are:
1. Unconscionability: the agreement is obviously and seriously unfair to one of the spouses. For example, a party takes advantage of a power disbalance to craft a deal that deprives a party of their basic legal rights.
2. Misrepresentation: A party signs the agreement on the basis that misleading information had been provided. For example, a party may state that the value of a certain asset is less than it is, or that their income is lower than it is.
3. Undue influence: A spouse takes advantage of a position of power over the other spouse. For example, a spouse who has more knowledge of the family’s finances may convince the other spouse to enter into a “bad deal” based on their limited information.
4. Duress: There was some pressure or stress on one of the spouses which resulted in them signing the agreement. For example, one spouse pressures another or makes threats in order to get them to enter into the agreement.
The BC Supreme Court may also set aside a family law agreement if the agreement is significantly unfair. For example, if a significant period of time has passed since the agreement was made and terms no longer operate fairly, the agreement may be set aside or varied. Further, if the spouses seemed to conduct their lives in disregard of the agreement, the court may set it aside or vary it.
So how does the Supreme Court determine whether to set aside or vary a family law agreement?
There have been a few important cases from the Supreme Court of Canada on when a court may set aside an agreement. In Miglin v. Miglin 2003 SCC 24, the Supreme Court of Canada prescribed a two-stage test (the “Miglin Test”) that a court must apply if a family law agreement is challenged.
Stage one – There are two parts to this first stage.
(1) The first part requires the court to consider the circumstances under which the agreement was negotiated and executed. A court may set aside family law agreement where one spouse was vulnerable or there was some unfairness or a flaw in the negotiation process (such as the circumstances discussed above in a-d and 1-4).
It should be noted that independent legal advice can assist in protecting against vulnerabilities and unequal bargaining power. However, independent legal advice is not a complete answer and does not always prevent an unfair agreement from being set aside. For example, unfairness resulting from a power imbalance (including the amount of funds available to one of the spouses to fund the negotiation process), lack of full disclosure, time pressure, or mental health issues may not be mitigated by independent legal advice. So just because both spouses have had legal advice, the family law agreement is not necessarily bulletproof!
(2) The second part asks whether the agreement substantially complied with the law at the time it was made.
If the agreement fails the first stage of the Miglin Test, then it may be set aside in whole or in part and the Family Law Act and the Divorce Act will apply. If the agreement does not fail the first stage, it will proceed to the second.
Stage two.
At the second stage, the court must assess whether the agreement still reflects the original intentions of the parties and the extent to which it is still in substantial compliance with the law. The party seeking to set aside the agreement will need to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned. Some degree of change in the circumstances of the parties is always foreseeable, as agreements are future-oriented the court will presume that spouses are aware that health, job markets, parental responsibilities, housing markets, and values of assets are all subject to change. It is only where the current circumstances represent a significant departure from the range of reasonable outcomes that the court may set aside the agreement.
So, what is the takeaway?
The BC courts believe that spouses should be free to choose to structure their affairs in a number of different ways, including “unequally”, and courts are reluctant to second-guess the agreements that spouses enter into. One should never enter into a less-than-favourable deal on the assumption that they can simply “deal with it later” by applying to the court for a better deal at a later date – BC courts will make their best efforts to uphold family law agreements, so make sure that your deal is acceptable to both you and your spouse. That said, courts will only intervene when necessary.
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 both parties have the opportunity to obtain adequate independent legal advice and be sure 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.
