2003 BCPC 99, 2003 BCPC 99

[ Indexed as : M . ( O .) v . M . ( N . E .)] In the Matter of the Family Relations Act , R . S . B . C . 1996 c . 128 O . M ., Applicant and N . E . M ., Respondent British Columbia Provincial Court Romilly Prov . J . Heard : March 21 , 25 , 2003 Judgment : April 2 , 2003 Docket : Vancouver 2003-16422 , 2003 BCPC 99 M . Huculak for Applicant N . M . for herself Romilly Prov . J .:

Summary of Facts and Evidence 1 The Applicant made application by Notice of Motion for spousal maintenance . 2 The Applicant in her Affidavit in support of her Notice of Motion stated as follows : The Respondent , N . E . M ., married me in Ukraine on July 21 , 2001 and spon- sored me to Canada and I arrived in Canada on August 2 , 2002 . In the spon- sorship documents , the Respondent undertook to support me financially for a period of 3 years and he promised me and my mother that he would do so . We separated on November 6 , 2002 .

I have not paid my rent for March , 2003 , do not have money to pay the rent and do not have money to live on . I need to take schooling , learn English to get meaningful employment . I can not get Social Assistance as I earn $ 800 . 00 per month from my part time employment . I have been informed by my husband , the Respondent , that he earns $ 8 , 000 . 00 per month . I have been trying to phone him and to see him to get financial help from him so that I would not be out on the street , but he is not answering his phone and not giving me access to him .

I desperately need financial assistance from the Respondent . 3 The Applicant gave evidence that her friend , K . M ., who had married the Respondent ' s brother , wanted to have his brother , the Respondent , introduced to one of his wife ' s friends . She stated that the Respondent sent her a questionnaire and a photograph to which she responded and e-mailed a photograph of herself to him around January 2001 .

Her evidence was that after that they corresponded by e-mail until June 2001 when the Respondent came to Kiev to meet her . 4 She stated that they spent two days in Kiev getting to know each other and that on the train to Minsky , he asked her to marry him , but that she was not ready to give him an answer . She stated that during the next few days she intro duced him to her family and they decided to get married in July 2001 .

Her evi dence was that the Respondent stayed in the Ukraine until August 2001 when he left for Canada leaving her with documents including a Sponsorship Agreement so that she could apply to emigrate to Canada as his wife . She stated that she understood the Sponsorship Agreement to mean that the Respondent would be responsible for her in Canada , and that if they obtained a divorce he would be responsible for her for 10 years .

A copy of the Sponsorship Agreement was en tered into evidence . 5 She stated that she knew about Canada before coming here and was told by the Respondent that he lived in an apartment from which he conducted his busi ness and that he needed a special diet . She stated that she arrived in Canada on August 2 " d , 2002 , approximately one year after they were married . She com plained that when she arrived she found that the Respondent wanted to dictate how she should eat and she felt as if she was in a " jail " living with the Respon dent , and found her husband too parsimonious .

She stated that by November 6 , 2002 , some three months after her arrival in Canada , she felt that she could no longer live with the Respondent and she left the matrimonial home and moved in with a friend and shared payment of the rent with her , her portion being $ 325 . 00 per month . 6 She stated that in the Ukraine she graduated from commercial college having previously completed nine grades and two years of advanced school . Her evi dence was that she worked for three years as a chef in the Ukraine and has a diploma as a Processing Engineer Technologist .

She stated that she had also taken advanced courses in English before coming to Canada . 7 She stated that she presently works in a restaurant as a part-time cook , but that she wants to continue her education to become a chef with Canadian qualifi cations , which she estimates would take her two years to complete at a cost of approximately $ 30 , 000 . 00 . She stated that when she arrived in Canada her hus band enrolled her into a school where it was intended that she continue her stud ies in English .

She stated that she now earns an income of approximately $ 800 . 00 per month part-time and that her present expenses per month are ap proximately $ 1 , 500 . 00 . 8 She stated that she cannot find full time work because she does not have a Canadian education and does not have Grade 12 English , which she contends is necessary for her to obtain full time employment .

She stated that all her family are in the Ukraine and that she could not have come to Canada without marrying the Respondent and protested that she would never marry anyone for financial benefit . 9 She acknowledged that she received financial support from the Respondent while she remained in the Ukraine and stated that she does not want to return there because she would like to remain in Canada . She acknowledged that the Respondent paid half of her rent after they separated and up to one month ago , but not for the month of March 2003 .

She stated that she has not applied for Social Assistance . 10 On cross-examination by the Respondent she admitted that he supported her while she remained in the Ukraine , and provided her with funds to study English and provided her with a computer for computer training . She admitted that he provided her with a bank card for her use and that her withdrawals amounted to approximately $ 7 , 000 . 00 . She stated that she earned $ 100 . 00 ( U . S .) every two weeks working in the Ukraine . She admitted that it only cost her $ 100 . 00 ( Cana- dian ) per month to live with her family .

She admitted that the Respondent had also advanced her $ 1 , 850 . 00 to buy a computer for her family and that in total she was advanced some $ 9 , 145 . 00 during the time she remained in the Ukraine . 11 She stated that she arrived in Canada knowing basic English and obtained a Social Insurance card on her own . She admitted that when she attended school to learn English she had to be placed at the highest level in that school because of her advanced knowledge of English . She admitted that after the separation , the Respondent paid the damage deposit and half the rent for the apartment she moved to .

She admitted that after separation he paid some $ 900 . 00 for her to undergo a root canal . She admitted that at the end of December 2002 , the Re spondent paid for half of her January rent and gave her $ 200 . 00 in the middle of December and $ 100 . 00 at the end of December . She admitted that he gave her a cheque in the amount of $ 750 . 00 and paid her half of the February rent . 12 The Respondent ' s first witness was K . M ., the friend of the Applicant who is married to the Respondent ' s brother and was responsible for her introduction to the Respondent .

She both filed two Affidavits with the Court and attended in person to give evidence . 13 Her evidence was that in conversation with the Applicant at the beginning of July 2001 in the Ukraine after the Respondent had arrived and on the day before the Respondent ' s marriage proposal was accepted , the Applicant told her that she did not like the Respondent and could not consider marriage with him be cause of his health problems .

She stated that the Applicant confided in her that she was not so ugly and old to marry someone like the Respondent , but several days later she told her that she had had numerous conversations with her family about marrying the Respondent as a means of escaping the poverty of the Ukraine . She reported that the Applicant told her that she had had numerous conversations with friends and co-workers about " marriage of convenience ".

Her evidence was that she attempted to contact the Applicant from Canada after the Respondent had left the Ukraine and was advised that the Applicant could not be reached because she had gone on holiday for some six weeks . She stated that on August 7 , 2002 , five days after the Applicant had arrived in Canada , the Applicant asked her for information about Canadian divorce procedures and told her that she expected the Respondent to have more money and was getting frus trated when she realized that he was not rich . She stated that the average wage in the Ukraine is about $ 20- $ 30 ( U . S .) per month . 14 K .

M .' s evidence was in no way successfully assailed or disproved by the Applicant . 15 The Respondent ' s reply to the Applicant ' s application , was that he has now become aware that the Applicant married him as a means of committing fraud against him and the Canadian Government to gain access to Canada , and that the Applicant received support from him far in excess of his means prior to his dis covering her fraud . 16 He confirmed that the relationship started as stated by the witness , K .

M ., and stated that when he was in the Ukraine , the Applicant told him on July 4 , 2001 , that she did not want a relationship with him and that she was still in love with her boyfriend but that her family told her to do it . He stated that he proposed because he thought that their differences would work themselves out . He stated that after she accepted his proposal , she went out celebrating and refused to speak to

him the next day . 17 He stated that after the marriage , he returned to Canada in August 2001 and they corresponded by e-mail and telephone . He stated that he sent the Applicant about $ 9 , 000 . 00 over the next 12 months . He stated that when his wife arrived in Canada , she immediately started taking offence to everything he said , when he was merely trying to be helpful . He stated that at the time of marriage he was 43 years of age and his wife was 23 years of age . He stated that she immediately made friends in the Russian community in Vancouver and went out drinking with them on a regular basis .

His evidence was that on October 5 , 2001 , at about 2 : 20 a . m ., he received a call from his wife that she was too drunk to come home and that she was spending the night with a friend . He stated that he started be coming concerned about her health and made suggestions but all his suggestions merely exacerbated the situation . He stated that when she advised that she wished to separate he offered that she could stay in the apartment as long as she wanted without his interference .

He stated that he suggested she could be paid by him for cleaning and cooking and for therapeutic massages , but she refused and chose to move out and from that time he started paying half her rent and providing her with the funds as aforesaid . 18 He entered his financial statement into evidence and referred to his 2002 income tax which showed him earning a net income of $ 20 , 247 . 00 . His unaudited balance sheet from his company however showed him making for 2002 gross income in the amount of $ 112 , 305 . 65 with a list of purported busi ness expenses which would net his income at $ 20 , 247 . 00 .

He stated that he has spent some $ 15 , 000 . 00 on the Applicant when his income was $ 20 , 247 . 00 for 2002 . He also stated that he pays $ 266 . 00 per month for the support of a son from a previous marriage and owes GST arrears in the amount of $ 5 , 682 . 00 and Income Tax arrears in the amount of $ 3 , 976 . 00 and loan payments to London Life in the amount of $ 4 , 029 . 00 per annum . 19 On cross-examination he stated that the $ 20 , 247 . 00 net income was his man agement fee from the company .

He stated that when his wife did not work , it was because she did not look for work but preferred to stay at home watching television and working part-time . He stated that he did not believe that the Ap plicant ' s level of English should prevent her from obtaining work because she has had two private tutors teaching English in the Ukraine , having taken English for 12 months before she came to Canada and continuing when she arrived all at the Respondent ' s expense .

He stated that during those 12 months she was also taking computer courses at his expense . 20 He stated that even if his wife received a minimum wage of $ 8 . 00 per hour in British Columbia , this would provide with an income of $ 1 , 200 . 00 per month .

On his position on the Sponsorship Agreement , he felt that it was conditional on his wife being a supportive wife and that there was a duty on his wife under the Agreement to make every effort to provide for her own essential needs . 21 Counsel for the Applicant in his submissions argued that she needs a mini mum of $ 1 , 300 per month to meet her basic needs and as she earns $ 800 . 00 per month she needs a minimum of $ 500 . 00 more . He argued that the Respondent ' s expenses as set out in his Financial Statement are questionable and that he can afford to pay at least $ 800 . 00 per month to his wife .

He contends that the Re spondent brought his wife into Canada and he agreed to support her under the Sponsorship Agreement and is shirking his responsibilities . 22 Mr . M . contends that he has made every effort to support his wife but that she seems insatiable .

Analysis and Decision 23 The relevant provisions of the Sponsorship Agreement signed by the parties in support of the wife ' s application to emigrate to Canada are as follows : The agreement is designed to help the sponsor , the co-signer ( if applicable ) and the sponsor ' s family class relative understand the obligations and re sponsibilities involved in sponsorship ... Mutual Obligations Canadian citizens and permanent residents are permitted to have their family class relatives join them in Canada only after signing a sponsorship under taking .

By signing the sponsorship undertaking , the sponsor and , if applica ble , the co-signer promise : ... to provide for the sponsored relative and his / her dependent ' s es sential needs for 10 years from the date the relatives receive perma nent status ; Essential needs are food , clothing , shelter and other basic requirements for everyday living .

It includes dental care , eye care and other health needs not covered by public health services ... that financial obligations or other personal circumstances over those 10 years will not prevent them from honouring the sponsorship commitment ; ... that the sponsored relative and his / her dependents will not need to apply for social assistance / welfare benefits ; and ... to respond promptly when asked for help by the sponsored relative and his / her dependents by giving money , buying items or providing services for living expenses .

If the sponsored relative and his / her dependents become permanent residents , they promise : ... to make every effort to provide for their own essential needs ; and ... to ask their sponsors for help if they are having difficulty support ing themselves or meeting their own essential needs ... Sponsored relatives who are being abused or assaulted by their sponsors should seek safety away from their sponsors even if this means that they will have to apply for social assistance / welfare benefits . People in this situation will continue to be permanent residents and will be able to live in Canada .

In this circumstance , sponsors will continue to be responsible for their relatives ' essential needs for 10 years from the date the sponsored relatives were granted permanent residence . Legal Consequences If the sponsor and , if applicable , the co-signer do not provide support as re quired , the sponsored relative can take legal action . In some cases , the Min ister may assign the debt to a provincial government and that government may take legal action ... 24 At first blush , one might assume that the above sponsorship agreement may be strictly between the parties and the Government of Canada .

However a case which was not provided by counsel for the Applicant has come to my attention which discusses this issue at some length . 25 The decision is a decision of the Honourable Mr . Justice Oppal in Achari v . Samy [ 2000 CarswellBC 1676 ( B . C . S . C .)] No . F 991726 , Vancouver Registry , July 24 , 2000 . In this case the parties were married in Fiji , and the wife claimed permanent maintenance based primarily on a sponsorship agreement with terms very similar to the ones quoted above . Both parties were from Fiji .

The husband had been a resident of British Columbia since 1976 and in 1997 he returned to Fiji and married the defendant in September of that year . They married but the parties never lived together nor consummated the marriage in Fiji . On May 19 , 1998 , the wife arrived in Canada and the parties commenced to live together until May 22 , 1999 , when the parties separated and the wife left the home . In paragraph 5 of the judgment the Court states as follows : 5 ) The real issue in this case is the extent to which the husband ' s undertaking to support his wife affects his obligation to pay spousal maintenance .

The husband sponsored the wife ' s entry into Canada . As a part of the sponsorship agreement he signed an undertaking to support her for a period of 10 years . Citizenship and Immigration Canada provides a guide for sponsors who make applications for members of a family class . A spouse obviously fits that category . The guide defines an undertaking . It reads in part as follows : 4 . 1 What is an undertaking ? Sponsors must give an undertaking to the Minister in support of their relative ' s application for permanent residence . The under taking is completed and signed on form IMM 1344B .

An undertaking is a promise by the sponsor ( and co-signer ) to provide for the essential needs of the member of the family class and the member ' s dependants and to ensure that they are not dependent on social assistance ,... ... undertaking are binding for 10 years . 4 . 2 Obligations of an undertaking Sponsors must provide essential needs to their relative , includ ing shelter , food , clothing and other goods and services neces sary for day to day living . The latter include dental and eye care , and medical care not provided by provincial health insurance programs .

The wording of the IMM 1344 facilitates litigation by clearly outlining for the courts what was expected of the sponsor . 7 . 1 When does default occur ? Sponsorship obligations continue even if the sponsor ' s or co signer ' s situation changes . Separation or divorce from a spon sored spouse or co-signer does not cancel the sponsorship obli gations . Nor do family rifts or periods of unemployment . 6 ) The present circumstances of the parties are as follows . The husband is 31 years old . He describes himself as " a network engineer involved with com puters " and earns approximately $ 52 , 000 per year .

The wife is 21 years old . In Fiji she had been employed as a bank clerk . She is now unemployed . She graduated from Kwantlen college where she took a course in office adminis tration . She resides with an uncle . She is on social assistance . She has de posed that she has been unable to

obtain employment due primarily to her inexperience . She has stated that she has made numerous applications for employment . She has attached to her affidavit a job search list which sets out the numerous firms from which she has sought employment . However to date she remains unemployed . The husband has questioned the wife ' s sincer ity in seeking employment . 11 ) The real issue in this case relates to the extent to which the undertaking to Citizenship arid Immigration Canada affects the obligation of the husband to provide support for the wife .

Counsel for the husband has submitted that the undertaking should have little or no effect on spousal obligations to pay maintenance . It is argued that the general law relating to entitlement to main tenance is applicable and that the undertaking given to the Canadian Govern ment is a matter between the husband ( and ) the Immigration Department . In other words , it ought to have no real bearing on entitlement to maintenance .

Counsel for the wife , on the other hand , not surprisingly , has argued that the husband has an obligation to support the wife a minimum of ten years or , at the very least , for an indefinite period of time ... There is no doubt that the sponsorship agreement is a contractual arrange ment between the husband and the Government of Canada . It imposes an obligation on the husband to provide for and maintain his wife for a maxi mum period of ten years .

The husband has agreed by way of an undertaking to provide for the " essential needs ... including shelter , food , clothing and other goods or services necessary for day to day living " for his wife . I have no doubt that the wife relied on that agreement in that she left Fiji for Canada knowing that her husband would provide for her . In determining entitlement the undertaking cannot be ignored . To do so would render it meaningless . Moreover it would be contrary to public policy to permit a person who has given an undertaking to provide support for a spouse to simply ignore the legal obligation to do so .

Obviously the Government of Canada in requiring such stringent undertakings from prospective sponsors has taken into consid eration the inherent difficulties that some persons experience in making the necessary adjustments in coming to a new country and becoming self-suffi cient . It should also be noted that the agreement specifically states that sepa ration or divorce from a sponsored spouse does not cancel sponsorship obli gations . Therefore the agreement is very much relevant in determining entitlement .

However , the agreement that would otherwise bind the husband for ten years cannot supersede the specific laws that deal with maintenance . In other words , sponsorship agreements cannot impose obligations greater than those imposed by the family law . The sponsorship agreement must be considered together with the general principles applicable to spousal mainte nance . In the circumstances the provisions of both the Divorce Act and the Family Relations act are nevertheless applicable . In this case , the wife was employed and was economically self sufficient in Fiji .

Her present impecunious circumstances are a direct result of the mar riage breakdown . She is clearly in need ... 26 In light of the above judgment , the issue now becomes whether or not the case at bar can be distinguished in any way from the case outlined above in some detail for obvious reasons . 27 The first distinguishing feature in my opinion is the fact that in the case at bar there is an allegation supported by what I find to be credible evidence that the Applicant deliberately entered into a " marriage of convenience " unknow ingly to her husband , to facilitate her access into Canada .

I find it telling that the Applicant willingly accepted all the monies her husband lavished on her for En- glish training and computer training while in the Ukraine for approximately 12 months , having only cohabitated with her husband for one month before he left for Canada , only to arrive in Canada 12 months later and within five days of her arrival to have discussions with her friend K .

M . about Canadian divorce law , not to mention the fact that in several conversations with her friend she expressed her distaste for her husband , and only seemed to have accepted his proposal for marriage after discussions with her family to escape what was , described by K . M . as " the poverty of the Ukraine ". This finding is in no way to suggest that the husband was not stupidly blind to his wife ' s true intentions . However I am of the opinion that in his declared loneliness he desperately needed a wife and hoped that the marriage would work out as it seemed to have done for his brother who married K .

M . 28 It strikes me therefore that the above finding alone should preclude the Ap plicant from relying on a sponsorship agreement which she entered into with her husband for an improper purpose . I find that the one exception to the enforce- ment of these sponsorship agreements should be the bona fide of the parties , which I find does not exist with regards the wife in this case .

I also find that public policy demands that such agreements not be enforced by the Courts since it strikes me that it should be left to Immigration Canada to decide whether or not the mala fide wife should be deported . 29 It is to be noted further that Mr . Justice Oppal in his decision states that such agreements " cannot supersede the specific laws that deal with maintenance ".

In this regard it is to be noted that in this case it cannot be argued as it was in the Seamy case that " the wife was employed and was economically self sufficient in Fiji " or that " Her present impecunious circumstances are a direct result of the marriage breakdown ". On the contrary , in the case at bar the wife deliberately set out to use her unsuspecting husband to facilitate access to Canada to escape the " poverty of the Ukraine " where the average salary was approximately $ 50 U . S . per month , although Mrs . M .' s evidence was that she earned $ 100 U .

S . every two weeks , which in my opinion will still place her in previous impecuni ous circumstances . 30 Further the short duration of the marriage has always been one of the cir cumstances the Court looks at in awarding spousal maintenance , even to the point of not awarding it at all . In Webb v . Somerville [ 2000 CarswellBC 1659 ( B . C . S . C .) 1 , August 11 , 2000 , Courtenay Registry No .

D5299 Loo J . the Court held that spousal maintenance will not be ordered where the marriage was short , the spouse seeking support was economically dependent at the commencement of the marriage and had not been economically disadvantaged by responsibilities assumed as a result of the marriage .

In that marriage the parties were married for four years and that was considered by the Court as a marriage of short duration . 31 In the case at bar , the parties cohabited for a period of some four months , having lived together for one month in the Ukraine after which the husband re turned to Canada only to be joined by his wife some 12 months later and cohabit for some four months .

There is little doubt that this was a marriage of extremely short duration and the cases suggest that in such circumstances spousal mainte nance can be denied . 32 Further unlike the Samy case where the wife provided the Court with a long list of all her efforts to obtain suitable employment , in the case at bar , the wife despite all the English training she has had and computer training , takes the po sition that she cannot obtain suitable employment because she requires Grade 12 English .

I find that if one was to accept this contention , there would be a dearth of employment for immigrants to Canada who cannot speak English . On the contrary one only has to look around Canadian cities to see the prosperous lives numerous immigrants have made for themselves without having " Grade 12 " En- glish . I find that Mrs .

M . has had sufficient English training to be proficient enough to find a job and that she has deliberately decided to accept part-time employment in her desire to find time to aspire to higher education , which while commendable , should not be done at the expense of her husband who has al ready spent his fair share in educating her .

I believe the husband when he states that his wife is content to sit around and watch television rather than look for full-time employment , because of her conviction that she is entitled to support from him . 33 That being said , it strikes me that the reality of the situation is that Mrs . M . is currently in need and it is incumbent on Mr . M . to accept some responsibility for bringing his wife into Canada and ensure to some extent that she is not placed on the Welfare rolls . I therefore feel that Mr .

M . should be called upon to contribute something to her support until she can get on her feet and either find full time employment or return to the Ukraine . I find that Mr . M .' s declared net income of $ 20 , 247 . 00 is a bit understated when one looks at the gross of his business which shows a gross of $ 112 , 305 . 65 . While the expenses for his busi ness was accepted by Revenue Canada , I find that Mr . M . can cut down on some of those expenses and contribute something to the support of his wife for a lim ited period only by which time Mrs .

M . should be able to be self-sufficient . 34 The evidence suggests that Mr . M . has been paying half of Mrs . M .' s share of the rent from the date of separation to the end of February . Mrs . M .' s

share of the rent is $ 325 . 00 , of which Mr . M . has been paying half . The Applicant claims that her roommate will be leaving soon and she would have to pay the full rent of $ 650 . 00 . I will therefore call upon Mr . M . to pay the sum of $ 400 . 00 per month towards Mrs . M .' s rent for a period of nine ( 9 ) months commencing April 1 , 2003 and ending December 1 , 2003 , without the possibility of review by Mrs . M . thereafter , because in my opinion it would be perverse for this Court to con done Mrs .

M .' s mala fide role in this matter and her refusal to make diligent efforts to find employment , despite the fact that she is young , healthy , able- bodied , intelligent and skilled . I feel also that it should be brought to the atten tion of Mrs . M . the clause in the Sponsorship Agreement which states that it is incumbent upon her " to make every effort to provide for ( her ) own essential needs ". Order accordingly .