A recent interesting court decision came out last week from the B.C. Supreme Court: Han v. Dorje 2021 BCSC 939. The facts of the case are interesting in that the parties never lived physically together although the Claimant, Ms. Han alleges that she has a child with Mr. Dorje arising from a sexual assault which she alleges occurred in October of 2017.
Mr. Dorje is the high lama of the Karma Kagyu School of Tibetan Buddhism and he travels the world teaching Tibetan Buddhists Dharma and hosting ceremonies in which Buddhists express their gratitude and devotion to Buddha.
Ms. Han was originally seeking child support for the child that she says is Mr. Dorje’s biological child and she recently applied to amend her claim and add in a claim for spousal support.
This case examines the law on unmarried couples and when they are considered spouses under the BC legislation, the Family Law Act.
In order to apply for spousal support, Ms. Han must prove that they lived together in a spousal relationship and had a child together. If the parties did not have a child together, then she would need to prove they lived together in a spousal relationship for a minimum of a two year time period.
Master Elwood goes through the various cases on unmarried couples living in marriage like relationships and determines that while the facts of this case do not fit into most of the factors, he confirms that the Court should not consider them on a checklist basis and should look at it holistically. He quotes from several cases throughout the country, including a 2003 Saskatchewan: Yikiwchuk v. Oaks 2003 SK QB 124 where Mr. Justice Myers states:
“It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain.”
The Master goes on to quote from a BC Court of Appeal case, Weber v. Leclerc, 2015 BCCA 492 which states at paragraph 23:
[23] The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”.
The Master in this case did not decide whether or not Ms. Han was in a marriage-like relationship with Mr. Dorje and could therefore claim spousal support. He was to make a decision on the procedural issue of whether or not Ms. Han could amend her claim to include a claim, at this stage, that they were in a marriage-like relationship and therefore she could claim spousal support. In order for her to amend the claim at this stage of the proceedings, Ms. Han needed to prove that there was a reasonable claim that the parties were in a marriage like relationship and the Master needed to assume that the facts as alleged by Ms. Han were true in order to make that determination.
The Master ultimately determined that there was a reasonable claim and that it would be up to the trial judge to decide, so allowed Ms. Han to amend her claim. He did acknowledge that the proposed amendment raises a novel question which is “can a secret relationship that began on-line and never moved into the physical world be like a marriage?” and that Ms. Han’s claim was that they could not be physically together because Mr. Dorje was forbidden by his station and religious beliefs from intimate relationships and marriage and that it will be up to the trial judge to determine. The two factors which the trial judge may find weigh in favour of this being considered a marriage like relationship are the fact that Mr. Dorje provided Ms. Han with large amounts of financial support, during the year that she alleges they were in a marriage like relationship, and that there is text message correspondence between the parties during that year, which the trial judge may find is indicative of an intimate marriage like relationship.
It will be interesting to see ultimate how this case is decided at trial. If it is determined that there was a marriage like relationship here, it is a further broadening of the types of relationship that can be considered to be marriage like for spousal support purposes and potentially for the purposes of property division as well.
This case is yet another reminder that if you are in an unmarried relationship, it is prudent to clarify the terms of your relationship. If you want to avoid litigation in the future, a Cohabitation Agreement between you and your partner is always recommended.
