Sidhu v. Sidhu
Vikram Sidhu, Applicant, and
Navneet Kaur Sidhu, Respondent
Vikram Sidhu, Applicant, and
Navneet Kaur Sidhu, Respondent
 O.J. No. 2409
2014 ONSC 2965
Court File No. FS-12-74993-00
Ontario Superior Court of Justice
T.A. Bielby J.
Heard: April 2 and 7-9, 2014.
Judgment: May 15, 2014.
Court File No. FS-12-74993-00
Ontario Superior Court of Justice
T.A. Bielby J.
Heard: April 2 and 7-9, 2014.
Judgment: May 15, 2014.
A. Nayyar, agent for Glenn Cook, Counsel for the Respondent.
REASONS FOR JUDGMENT
1 T.A. BIELBY J.:-- The Applicant and Respondent herein are husband and wife and married each other, in India, on February 18, 2011. The parties separated in May 2012, the month after the applicant withdrew his sponsorship of his wife to become a resident of Canada. The respondent learned of the cancellation only after she arrived in Canada, on May 13, 2012.
2 The applicant was born in Canada on September 25, 1980, and has resided in Canada all of his life. He has always lived with his mother and brother, in his mother's home, and continues to do so.
3 The respondent was born in India, on August 1, 1985, and lived there all of her life until she came to Canada in May, 2012.
4 The applicant commenced these proceedings in order to obtain a divorce. The respondent, in her answer, seeks various heads of relief, including spousal support.
5 There are no children of the marriage.
6 The applicant now asks the court to order that all the gifts of gold jewelry that he gave the respondent be returned. He also seeks damages for the monies he and his family expended on account of the wedding, which he says, amounts to $28,000.00.
7 It is the position of the applicant that the marriage was a fraud and that the respondent only married him in order to immigrate to Canada.
8 The respondent agrees the marriage was a fraud but argues that the applicant only agreed to marry her in order to access the respondent's family's money through wedding gifts and a share of her mother's estate.
9 The parties initially met online and thereafter the applicant's mother made contact with the respondent's family, to open the discussions in an effort to negotiate an arranged marriage.
10 On February 6, 2011 the applicant and his mother arrived in India and by February 10th the parties were engaged. The applicant and his family were given a number of engagement gifts which included gold jewellery, clothes and cash.
11 Shortly after the engagement, the applicant's mother provided to the respondent and her family a list of relatives who should also be presented with gifts by the respondent.
12 The applicant and his mother remained in India and the wedding arrangements were quickly completed. The parties were married on February 18, 2011, with over 200 guests in attendance. The wedding again required the respondent to provide gifts to the applicant and his family.
13 The parties thereafter lived together in India for approximately 30 days, sharing a bedroom and a bed. However the marriage was never consummated. The applicant said he tried to be intimate but that the respondent wanted no part of it and if the applicant attempted to be intimate, the respondent would grab and squeeze his genitals, causing him great pain.
14 The respondent denied this allegation and testified that on the first two nights they were together no intimacy was attempted. Over the following three nights sexual intimacy was attempted but the applicant could not complete the deed. She testified that no further attempts were made.
15 On or about February 20, 2011, the respondent and applicant attended a jewellery store to exchange a ring and bracelet given to the applicant by the respondent. The applicant was not satisfied with the jewellery he had received and wanted to pick out items more to his liking. This represented more expense to the respondent and her family.
16 The applicant and his mother left India on March 3, 2011, and returned to Canada. Thereafter the parties commenced an application to the Canadian government to allow the respondent to immigrate to Canada. The process took a very long time and it was not until the spring of 2012, that a visa was issued, as discussed below.
17 While residing in different countries, the parties communicated with each other, whether by phone or the internet, on an almost daily basis. The respondent testified that she was happy and looking forward to her life in Canada as the wife of the applicant. She believed the applicant felt the same way.
18 The respondent's mother passed away on February 9, 2012 and the applicant and his mother travelled to India to pay their respects and remained in India for a few weeks thereafter. During this time the parties again shared a bedroom but did not consummate the marriage.
19 For their first anniversary the applicant gave the respondent, a gold pendant set.
20 The applicant and his mother returned to Canada on March 1, 2012. On their return to Canada, the applicant's mother brought with her all of the respondent's gold jewellery. It was suggested to the respondent that the applicant's mother should take all of the jewellery in Canada, to ensure its safe keeping. It was also suggested that the respondent would have an easier time getting through Canadian Customs if she was not carrying a quantity of gold jewellery.
21 On April 6, 2012, the applicant contacted the Canada Border Agency and cancelled his immigration sponsorship of the respondent. The respondent's admission to Canada was dependent on this sponsorship.
22 The applicant testified that on April 12, 2012, he called the respondent and told her he would be seeking a divorce.
23 The applicant testified that the respondent has been unfaithful to him. He alleges he saw photographs of the respondent with other men, which suggested some inappropriate familiarity.
24 The applicant also submits that he also wanted the divorce because the respondent refused to be sexually intimate with him and would hurt him physically if he tried to initiate any such intimacy.
25 The respondent denies this and states that the applicant learned, while in India the second time, that the respondent was not going to inherit anything from her mother's estate. She testified that the respondent and his mother were present when discussions were held concerning the respondent's mother's estate and will. The will states that the cost of the wedding represented the respondent's share of the estate.
26 The respondent suggests that the applicant decided to divorce her when he learned there would be no more gifts or money available. However, this suggestion is no more than speculation.
27 Where there is a conflict in the evidence on any point as between the parties, I accept the evidence of the respondent over that of the applicant. On virtually every question he was asked, the applicant asked that the question be repeated. A few times he even asked that the question be restated a third time. It appeared to me that the applicant was buying the time he needed in his own mind, to determine the intent and purpose behind the question and then fabricate an answer. Many of his answers ended with the phrase, "trust me".
28 Too often the applicant said that he couldn't remember, in regards to details surrounding what happened in 2011 and 2012. He thought this was a long time ago. I do not find 2011 and 2012 so long ago as to explain the applicant's significant lack of recall. He testified that he really loved the respondent and that he was heartbroken over the break-up of his marriage. If that were true one would expect the events to be more memorable to him.
29 Further the applicant displayed very little emotion when discussing the break-down of his marriage.
30 I do not accept the applicant's stated reasons for ending the marriage. The respondent was to immigrate to Canada to live with him as his wife. She was prepared to leave behind her family and her career and leave India for the very first time. She would be completely dependent on the applicant. Given these circumstances, if the applicant cared for the respondent as much as he said he did, I would think he would have given the marriage a chance.
31 The applicant's mother was called as a witness by the respondent's counsel. When asked certain questions concerning the applicant, she too had a difficult time recalling details.
32 The respondent, on the other hand, had a very good recall of the facts and circumstances in issue and rarely indicated she could not remember. She answered the questions in a straightforward manner and without any significant hesitation. Further, during points of her testimony the respondent became emotional particularly when describing how she was held in detention and had very little contact with anyone. She was in a strange country with almost no support of any kind.
33 I find that the applicant did not advise the respondent of the cancellation of the sponsorship. Nor did he call her on April 12, 2012, and tell her he was seeking a divorce.
34 I accept the evidence of the respondent that she did not know of the cancelled sponsorship until she had arrived in Canada on May 13, 2012 and was told of the cancellation by an Immigration Officer.
35 Further, I accept the respondent's evidence that she was not, in any way, unfaithful to the applicant. I accept that from the date of marriage to the date she arrived in Canada, it was the wish of the respondent to live with the applicant, as his wife, in Canada.
36 In regards to the issuance of the visa, the respondent received her visa from the Canadian Government on May 8, 2012, and upon receipt immediately placed a telephone call to the applicant's home.
37 The respondent testified that throughout the spring of 2012, she was having a difficult time talking directly to the applicant. If she called the applicant's land phone the call was answered by the applicant's mother who told the respondent the applicant was very ill and could not talk. If the respondent called the applicant's cell phone, the applicant would not pick up.
38 The respondent was repeatedly told by her mother-in-law that everything was fine and that the respondent should fly to Canada as soon as she can. There were numerous and long telephone conversations between the respondent and the applicant's mother as shown by the phone records included in Exhibit 2.
39 Accordingly, when the respondent called the applicant's home after she had been issued her visa, she spoke to the applicant's mother who told the respondent to purchase her plane ticket and get to Canada as soon as possible.
40 The applicant's mother even told the respondent what gifts to buy for the applicant's relatives, presumably to be given to these relatives by the respondent on her arrival in Canada.
41 On the 11th of May, 2012, the respondent, with the help of her brother, acquired the gifts and started packing. She had two suitcases, one for her personal belongings and one full of gifts. As it turned out, she was only allowed one piece of checked luggage on her flight to Canada and she had to leave behind the suitcase with the gifts.
42 The applicant's mother called the respondent twice to inquire as to the status of her packing and arrangements for travel. While the respondent was starting to think it odd that the applicant was not talking to her, she continued to rely on his mother and her positive comments about the future of the respondent's marriage to the applicant.
43 On the same day, the respondent's sister told the respondent that she had received a call from the Canadian Embassy advising there may be a problem with the respondent's documents. The respondent attempted to contact the Embassy by telephone, more than once, to inquire as to the problems but either talked to someone who knew nothing about the case or was required to leave a voice message.
44 At midnight on May 12, 2012, the respondent spoke to the applicant's mom by telephone for an extended period of time. Her mother-in-law told her there was no problem that she knew of and there must be some mistake. The respondent was again told to fly to Canada as soon as possible.
45 The respondent booked her plane ticket on the 12th and flew to Canada on May 13, 2012, landing at the Lester B. Pearson International Airport. Upon landing the respondent was directed to Immigration where she detained and questioned. She was kept in detention for over one week.
46 I accept that members of the respondent's family advised the applicant's mother and thereby indirectly, the applicant, of the flight particulars yet no one from the applicant's family attended to meet the respondent at the airport.
47 The respondent testified that she was told by the Immigration Officer that the applicant had cancelled his sponsorship the previous month and testified that this was the first time she learned of the cancellation.
48 While in detention, the respondent was served with the divorce application.
49 At Exhibit 2, tab 16, are the notes of the Immigration Officer who interviewed the respondent.
50 These notes and some of the opinions expressed therein are hearsay. However they were filed by the respondent and relied upon by the applicant.
51 In that report there are a series of question and answers. The respondent was told that the officer had spoken to her husband and was told that he did not know the respondent was coming to Canada that day. The respondent would not believe the officer.
52 A review of the questions and answers suggest that the respondent may have known of the cancelled visa. However, in her testimony, the respondent stated she was only told there was a problem with her documents. I accept the evidence of the respondent that she was not told specifically that her visa was cancelled and that prior to leaving for Canada, the respondent made reasonable efforts to contact the Canadian Embassy, following up the phone message left with her sister.
53 The officer's notes indicate that when he spoke to the applicant initially, he was told that the applicant was starting divorce proceedings on the grounds of physical, emotional and sexual cruelty. Later the applicant called back and said that he wanted to apologize for his comments and that he would like to make the marriage work and would come to the airport. The applicant called back again and reneged on what he had said and told the officer that he had not talked to the respondent in two months and described the marriage as, "one of convenience" and that no one in his family knew the respondent was travelling to Canada that day.
54 On cross-examination the applicant admitted to these series of calls but could not remember many details concerning the contents of the calls.
55 The respondent was eventually released on an Immigration bond and has lived with a cousin and his family, who reside in the Toronto area. She is fully dependent on them for money and necessities as she is not allowed to work. Her status in this country is uncertain.
56 When the respondent was introduced to the applicant she had recently completed her Master's Degree and was lecturing at a university in India. She is the oldest of three children and, at the time, all resided with their widowed, now deceased, mother.
57 The respondent testified that the applicant asked her to quit her job as they were going to be married and she would be moving to Canada. Thereafter the respondent continued to reside in her mother's house and was completely financially dependent on her mother and family while she waited for her Canadian visa.
58 At the time of his marriage, the applicant only worked part time. He testified that he was registered with employment agencies and he would be called when temporary work was available. The applicant testified that most of his job assignments are as a labourer although he does have a college education. While he may have had full time work in 2005, it would seem for the most part, full time work has eluded him.
59 The applicant testified that he was always seeking employment. He did not, however, have any documents to corroborate that claim. He testified that any records he had with respect to job applications were routinely deleted from his computer.
60 At the end of 2005, the applicant, with his mother as a co-signer, bought a new Hummer motor vehicle at a total cost of over $54,000.00. The vehicle was financed over a 3 year period of time and required payments of $1,271 per month. While the applicant may have made a couple of payments he testified that it was his mother who carried the cost of the vehicle including loan payments and insurance.
61 In the spring of 2012 the applicant signed over his interest in the Hummer stating he wanted to gift the vehicle to his mother, for all she had done for him. He has since retained a trustee in bankruptcy and has filed a consumer proposal under the Bankruptcy and Insolvency Act. He is required to make payments of $400.00 per month pursuant to the proposal.
62 I accept the evidence of the respondent that when the families first met, the applicant told them he had a good job in human resources and that he had a vehicle and a home. I accept that the respondent's family, before agreeing to the marriage, would have wanted to ensure the applicant could properly provide for the respondent. Had he told the truth, and while it is only speculation, I doubt a marriage agreement would have been reached.
63 The applicant in 2009 had earnings of $3,705.00 and employment insurance earnings of $8,688.00. In 2010 he had earnings of $6,079.00. In the applicant's financial statement, sworn December 21, 2012, the applicant stated that his income for "last year" was $8,275.00. In 2012 the applicant declared earnings of $1,061.00. For 2013, the respondent will declare earnings of about $2,500.00. His 2013 tax return has yet to be completed and filed.
64 The applicant submits that he has done all he can do to better himself and earn a greater income and that he survives on the generosity of his mother.
65 The respondent, in response, argued that the applicant is employed "under the table" and is paid in cash. She attributes to him a lifestyle well beyond his reported means.
66 Alternatively she submits that the applicant is intentionally under-employed.
67 At tab 16 of exhibit 2, are internet generated income surveys in regards to the wages of people employed as data analysts or in the human resources field. It is submitted that an annual salary of $45,000.00 is within the range suggested by such surveys.
68 It was also argued that the applicant testified that in 2005 he might have been earning $15.00 per hour. Such an hourly payment, adjusted for inflation would suggest an annual salary of $35,000.00.
69 I find that the applicant has not proven that he has taken reasonable steps to find full time employment. He has no disabilities and is a college graduate. I find that the applicant is, in fact, intentionally under-employed and will impute an income to him of $35,000.00 per year. I consider this amount to be conservative in estimate.
70 In regards to the argument that the applicant is employed "under the table" and being paid in cash, counsel for the respondent argues that the applicant's mother does not have the income necessary to carry their house and to pay all the expenses including the cost of operating the Hummer motor vehicle.
71 The evidence, however, falls short of establishing that the applicant is contributing any significant monies to the household or that he has employment beyond that what he claims.
72 The respondent cannot return to India without financial assistance. She has no money and no one to support her in India. Her brother is a student. Both her parents are deceased. She testified that jobs are very difficult to find and the job she left is not available to her. She stated she was lucky to get it in the first place. There is no social safety net in India; no welfare system or universal health care.
73 The respondent testified that she would need to acquire a PhD. in order to find employment in India and that such an endeavour would take 5 years. She testified that if she returned to India, she would need $20,000.00 in order to live and re-educate herself, in order to find employment.
74 The respondent suggested that if she could stay in Canada things would be better. She could qualify for social assistance and would benefit from our system of universal health care. She testified that she would still need to return to college and update her skills.
75 I am cognizant of section 15.2 of the Divorce Act R.S.C. 1985, c. 3 and the factors to consider in regards to spousal support and the objectives of spousal support.
76 One of the factors to be considered is the length of the marriage. In this case the marriage was only 14 months in length and the parties only lived together for, at best, 6 weeks. The length of the marriage would not favour an order for spousal support.
77 However the following two objectives of a spousal support order are relevant and are found in section 15.2(6) of the Divorce Act which states:
· An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:
Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
Relieve any economic hardship of the spouses arising from the breakdown of the marriage;
78 Given the facts of this case it is hard to imagine a greater economic disadvantage as the one facing the respondent. Clearly it has arisen from the breakdown of the marriage.
79 The respondent gave up everything to marry the applicant. She has nothing, and is left in such a predicament, as a result of the marriage breakdown.
80 Support is required to relieve the respondent's economic hardship resulting from the breakdown of the marriage, notwithstanding the brevity of the marriage.
81 The respondent arrived in Canada not knowing her husband had withdrawn his sponsorship which would have bound the applicant to financially support the respondent for a specific length of time.
82 I find that the applicant has an obligation to support the respondent. However before I turn to the issues of quantum and duration I will deal with the issues regarding the gifts and the claim for damages.
83 The applicant seeks the return of the gold that he gave to the respondent. The fact is the respondent and her family gave much more in the way of gifts to the applicant and his family, at the insistence of the applicant's mother. At one point the applicant testified that he would give back the gold he received, in exchange for the gifts he gave. He later testified that he had sold all the gold jewellery he received from the respondent.
84 The applicant seeks compensation for his costs related to the wedding which he estimated were $28,000.00. He did not provide any evidence to support the value of the claim.
85 In any event, such damages are not compensable when a marriage breaks down. Such causes of action have been long repealed. The gifts were just that, gifts and are not recoverable. Counsel for the respondent in her argument advised the Court that her client was not seeking the return of any of the jewellery or other gifts or wedding costs of any kind, the total cost of which exceeded $36,000.00. The respondent limited her claim to that of spousal support.
86 Turning now to the issue of the quantum of support, the respondent is seeking periodic support as well as lump sum support.
87 The Spousal Support Advisory Guidelines, in this case, suggest a range of monthly support of between $44.00 and $58.00 using the imputed income for the applicant of $35,000.00. An award of support at this level would be of very little assistance to the respondent. The Guidelines however as just that, guidelines and while I am to have regard to them, they are not binding.
88 The Guidelines recognize that in exceptional circumstances they are not applicable and the circumstances of this case are exceptional.
89 Further the applicant's expenses are not his responsibility but rather are paid by his mother. He lives in her house and drives, what he argues, is her motor vehicle. Accordingly his expenses are minimized, providing more income to pay periodic support.
90 Commencing May 1, 2014, and for a period of 3 years, I order the applicant to pay spousal support to the respondent in the amount of $350.00 per month.
91 Further I order the applicant to pay to the respondent a lump sum support award of $10,000.00, to provide immediate financial assistance and to help the respondent to take the steps necessary, whether here or in India, to become self-sufficient. I consider this award to be compensatory in nature.
92 On an imputed income of $35,000.00 and given the applicant's minimal expenses the applicant has the means to pay this support and certainly the respondent has established her need.
93 In reaching this decision I have had regard to the decision of Price J. in Singh v. Singh, 2013 ONSC 6476.
94 On the issue of costs I will accept written submissions of no more than 3 pages in length to be delivered within 21 days of the release of this judgment.
95 A support deduction order is to issue.
T.A. BIELBY J.