Raju v. Kumar, 2006 BCSC 439 (CanLII) Facts:
- The plaintiff’s marriage failed. She sues her husband for damages on the basis she was induced to marry him by the fraudulent misrepresentation “that it was his intention to stay married to the plaintiff and that he was not using her as a means to come to Canada.”
- The parties were married in Fiji on June 13, 1999. The plaintiff, a Canadian citizen of Fijian origin, was a self-supporting, childless, 41 year old divorcee. The defendant, a Fijian citizen, was a 29 year old divorcee with one daughter. He had never been abroad.
- The plaintiff purchased engagement and wedding saris in Canada which she took with her to Fiji anticipating her marriage. She also took Canadian immigration forms necessary for the defendant to obtain landed immigrant status so he could live with her in Canada.
- When the plaintiff arrived in Fiji, she met the defendant two or three times for a few hours. With the assurance of her father that the defendant was a suitable man of the proper caste, the plaintiff agreed to the marriage at a family meeting, as did the defendant.
- Before the marriage, the defendant told the plaintiff of his divorce, that he had a daughter, and that he had split up with his girlfriend a few months before.
- The parties were wed very soon.
- The Plaintiff alleged that the Respondent entered into marriage with her solely to gain entry to Canada.
After cross-examinations and after Trial, the learned Judge stated: The evidence is clear that the defendant did not view the parties’ marriage as a committed relationship. The Judge found the defendant’s primary motivation in marrying the plaintiff was not love, since they hardly knew one another when they married, nor a true desire to build a family with her, since he only stayed with her for a few days after he arrived in Canada. The four elements of the tort of deceit are:
- A false representation
- Knowledge of its falsity
- An intent to deceive
- Reliance by the plaintiff with resulting damage
Here the defendant either knew that his representations, that he had split up with his girlfriend prior to the marriage and that he would move to Canada to raise a family with the plaintiff as his wife, were false or he was reckless as to their truth or falsity. There is no doubt the defendant intended the plaintiff would believe these representations so she would marry him, nor is there any doubt the plaintiff relied on these representations when she agreed to marry the defendant. The Judge found that the defendant misrepresented his true feelings towards the plaintiff and his true motive for marrying her in order to induce her to marry him so he could emigrate to Canada. The Judge also found the plaintiff married the defendant relying on his misrepresentations of true affection and a desire to build a family with her in Canada. The defendant’s misrepresentations entitle the plaintiff to damages resulting from her reliance on them. The issue is the amount of damages the plaintiff may recover for the defendant’s deceit in this case.
The main misrepresentations made by the defendant after the marriage were that he was not continuing an adulterous relationship with his girlfriend and that he still wanted to come to Canada to live with the plaintiff. The defendant’s lack of commitment to the marriage was evident almost immediately upon his arrival in Canada. The plaintiff’s suspicion that the defendant was continuing his relationship with his girlfriend could only have been enhanced by her discovery of the woman’s picture and a phone card in his wallet. The defendant’s departure within days could lead the plaintiff to no other rational conclusion than that all the defendant represented about his intentions in respect of the marriage was false.
The Judge therefore concluded that the plaintiff’s damages are limited to those which resulted from the defendant’s misrepresentations before the marriage which induced her to marry him and support his immigration and those misrepresentations made after the marriage which induced her to continue to support it, despite his falsely denied adultery, by paying for his immigration appeal and landing fee. The Judge also awarded the plaintiff $10,000 general damages for hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children. I discount the latter aspect of the claim on the basis of the contingencies that she might not have found a suitable husband and might not have had a child for any number of reasons even had she married someone else.
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This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.