This is an interesting recent case that illustrates the perils of spousal sponsorship applications. In this case, it is noteworthy that the sponsorship process was apparently not completed as the sponsorship was withdrawn, but the sponsor was found to be financially responsible in any event.
Sidhu v. Sidhu
Between
Vikram Sidhu, Applicant, and
Navneet Kaur Sidhu, Respondent
[2014] 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.
(95 paras.)
Counsel:
Applicant, Self-represented.
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:
· a)
Recognize any economic
advantages or disadvantages to the spouses arising from the marriage or its
breakdown;
· b)
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.
