THE EVER EXPANDING DEFINITION OF SPOUSAL RELATIONSHIPS
Who would have thought, even ten years ago, that courts would define a spousal relationship as including couples who occasionally spend the night together, each with their own home? But the Ontario Court of Appeal in Climins v. Latner 2020 ONCA 554 did that, in the context of a lengthy dating relationship where the couple spent time together at a Muskoka summer cottage and vacationed in Florida together in the winter.
But what was once just a slippery slope has rapidly transformed into an icy cliff with the British Columbia Supreme Court’s decision in Han v. Dorje 2021 BCSC 939. The claimant, Ms. Han, conceded that her relationship with Mr. Dorje did not fit within a traditional view of marriage as she and he had never lived together as husband and wife. In fact, their “dating” relationship, if it could even be characterized as such, was comprised of only four occasions when they were together, two of them in a public setting, once privately, and a final occasion when Ms. Han informed Mr. Dorje that because of their private encounter, he was the father of her child.
Their conjugal relationship, which Ms. Has said began in January 2018, consisted of private text messages and emails. They rarely even spoke on the telephone. Ms. Han deposed that the reason for their unusual relationship was because of Mr. Dorje’s role as His Holiness, the high lama of the Karma Kagyu School of Tibetan Buddhism. The parties met in October 2016 when Ms. Han began a lengthy meditation at a monastery in New York with a view to becoming a Buddhist nun. Ms. Han became pregnant in October 2017, alleging a non-consensual sexual encounter. When she informed Mr. Dorje of her impending motherhood, he denied responsibility , but provided her with his email address and telephone number and advised her that he would send some money to her.
The baby girl was born on June 19, 2018. Throughout 2018 Ms. Han received funds from Mr. Dorje totaling $770,000, and he once wrote to her: “Taking care of her and you are my duty for life.” Ms. Han deposed that they discussed living together and buying a home in Toronto, and he purchased a condo for her in Richmond, but by January 2019 Ms. Han lost contact with Mr. Dorje.
In July 2019 she brought a family law claim in Vancouver seeking child support, a declaration of parentage, and paternity testing. She did not claim spousal support in her initial claim, however, in April 2020 her counsel brought an application to amend her claim to plead a spousal relationship and seek spousal support.
Mr. Dorje denied any romantic relationship, contrary to Ms. Han’s assertions that their single sexual encounter developed into a loving and affectionate relationship.
Master Elwood granted Ms. Han’s application, permitting her to amend her claim. He identified the novel question of whether a secret online relationship that never moved into the physical world could be a marriage and determined that the question was worthy of answer by a trial judge. Several other legal propositions were cited by the Master:
- A party seeking to amend a pleading must show there is a reasonable cause of action and the threshold is low;
- The applicant’s allegations of fact are assumed to be true for the purpose of the analysis;
- It is good practice for applicants who seek to amend their pleadings in family law cases to include a schedule of material facts on which they rely for the proposed amendment;
- Quoting from Mother 1 v. Solus Trust Company 2019 BCSC 200, the court stated that the “concept of a marriage-like relationship is elastic and difficult to define” and is “like sand running through one’s fingers”;
- In determining whether a relationship is marriage-like, the courts have looked at “mutual” intent.
Whether this case is resolved by trial or by settlement, the usual indicia of marriage-like relationships will mostly be answered in the negative. The parties did not live under the same roof; they had sexual relations only once; they did not share domestic services; they did not share financial accounts; there was no interaction between them and friends or family; they did not socialize together; and finally, they did not hold themselves out to the world to be husband and wife.