Vancouver lawyer John McGreevy represented a lied-to wife Click here to see full sized version.

Courts usually won’t venture into the fog of marital mendacity except in cases involving bigamy or other gross falsehoods about the capacity to marry that can invalidate a marriage.

But the British Columbia Supreme Court made a notable exception recently, ordering a Fijian man who used his “besotted” Canadian wife to help him successfully emigrate here to pay her $21,376 for the tort of deceit.

Rajendra Kumar, described by the judge as a “cad” who lied to and cheated on his distraught estranged spouse , was ordered in March to pay Madhavi Raju, special damages of $11,376, plus general damages of $10,000 for her “hurt feelings, humiliation, inconvenience and postponement of the opportunity to marry another man while she was still capable of bearing children.”

Although Kumar denied Raju’s claim that they had an agreement to have children, Justice E. Robert Edwards said it didn’t matter because their 1999 marriage offered the then 41-year-old plaintiff “at least the prospect of children and ended her search for a sire.” Raju’s hopes were dashed when Kumar, who was 29 when they married, dumped her and absconded, without a trace, 17 days after he obtained his Canadian residency.

Raju’s law suit was given a boost, however, by Kumar’s former mistress in Fiji, who supplied Raju with his many love letters as well as her written assessment that “he is a big lier (sic)...fond of changing girls in his life just like people change clothes.”

The moral of the story is that “spouses can sue each other on the strength of deceit and [for] not entering into the marital contract on the basis that ... the other person was led to think was the case,” said Raju’s lawyer John McGreevy of Vancouver. “I think what this case does is opens up two things: the idea that [the tort of] deceit, whatever it may be, is alive and well, and where is the line drawn is to be determined in the future by future cases; and that it’s definitely the law, loud and clear, that spouses can sue each other” for deceit.

In his decision, Justice Edwards acknowledged that courts have long been reluctant to delve into spousal deceit.

The Divorce Act and provincial matrimonial property regimes deem marital misconduct or “fault”, for the most part, irrelevant to the availability of remedies on marriage breakdown, for example.

But the judge pointed out that the B.C. Married Woman’s Property Act, which barred most interspousal tort actions, was repealed when the Charter’s s. 15 equality rights provision came into force in 1985.

The successor Law and Equity Act, paralleled in many other provinces, specifically states in s. 60(3) that spouses have the same right of tort action against each other as if they were not married.
“The effect of the subsection must be to give the parties to a valid marriage the same right of action against one another for deceit as has hitherto been available to the wronged party in a bigamous relationship, unless misrepresentation as to the deceiver’s capacity to marry is treated by the law differently from the misrepresentation as to ‘the quality of the marriage, the motives and expectations of the parties, the reasons behind the marriage,’ “ reasoned Justice Edwards.

“Where, as here, there is no effective statutory remedy in light of the absence of economic interdependence between the parties, there is no compelling argument for making such a distinction. This case is more akin to the bigamy cases where the wronged party says, in effect ‘I would never have entered this relationship but for the misrepresentations of what it would be’, than it is of the typical case of marriage breakdown where it is the financial impact on the parties of the marriage and its breakdown which are addressed by the no-fault statutory remedies.”

Justice Edwards declined to add punitive damages, finding that although the defendant was “callously indifferent to the consequences of his deceit on the plaintiff” his deceit was “motivated by self-interest, not vindictiveness.”

Justice Edwards found that Kumar wed Raju with the sole purpose of getting into Canada from their native land, Fiji. He lied to her, telling her he loved her and wanted to raise a family with her. He also denied having other lovers at the time. Once he arrived in Surrey, B.C., after Raju paved the way by expending thousands of dollars and much effort, Kumar disappeared. His wife was so anxious she couldn’t work. Her problems compounded when she consulted a psychic to track down her wayward husband, only to be bilked out of her jewelry. Kumar, who went on to establish himself in Edmonton where he has relatives and a job, is now trying to get a divorce.

Justice Edwards noted that for years the common law did not entertain interspousal deceit claims.

“On first impression it seems perverse that s. 60 of the Law and Equity Act should have the effect of permitting a tort remedy between spouses for deceit, that is one based on intentional (mis)conduct, years after both Parliament and the Legislature determined that conduct should not be a factor in remedies available on marriage breakdown. However, the effect of  s. 60 provides a remedy for a spouse who discovers deceit and separates before the parties have established any economic interdependence which would entitle the deceived spouse to a ‘no fault’ statutory remedy, such as support or reapportionment of family assets.”

The judge held that the four elements of the tort of deceit were established: a false representation; the defendant’s knowledge of its falsity; his intent to deceive; and reliance by the plaintiff with resulting damage.”

The special damages awarded to Raju were $6,601 for long distance calls to Fiji, $1,300 for the wedding reception, rings and photo album, and $3,475 for Kumar’s immigration application, appeal, and landing fee.