Appeals Of Fraud Involved In Divorce Order cases are rare but the consequences when it has occurred can result in huge financial consequences for the parties who remain married even after a fraudulent divorce. A recent BC Court of Appeal Case sets out the test for setting aside fraudulently obtained divorces and what that means for the status of the parties who were divorced under the fraudulent actions. Our experienced BC and Vancouver family law appeals lawyers know that appeals are not a retrial of what happened in the court below but must involve errors in law, proving the judgment was clearly wrong or proving errors in exercising discretion.
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Vancouver Appeals Of Fraud Involved In Divorce Order
The BC Court of Appeal in Rong v Tan dealt with Appeals Of Fraud Involved In obtaining a Divorce Order and stated:
[24] The trial judge found that Mr. Rong and Ms. Tan’s 2005 divorce order was obtained by fraud, and that had the Court been aware of the true state of affairs, the order would not have been granted: at para. 22.
[25] The trial judge noted that under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8(1), a divorce may only be obtained on the ground of “marriage breakdown”. Mr. Rong and Ms. Tan relied upon s. 8(2)(a), asserting that they had lived separately and apart for more than a year preceding the commencement of their divorce proceeding. At trial, however, both parties acknowledged that they had not been living separately and apart at the time the order was sought, had sworn false affidavits, and fabricated evidence related to Ms. Tan’s residence in a joint and deliberate effort to deceive the Court. In 2005, the Court made a divorce order in reliance on the parties’ joint application.
[26] The trial judge cited a recent decision of this Court, Esteghamat-Ardakani v. Taherkhani, 2023 BCCA 290 at para. 87, for the proposition that a court has inherent jurisdiction to set aside an order obtained by fraud, collusion, or perjury. On the basis that a divorce was not legally available to the parties when the order was made, that divorce proceedings are particularly vulnerable to collusive practices, and that the Divorce Act requires courts to satisfy themselves that there has been no collusion on an application for divorce, the trial judge concluded that the divorce order ought to be set aside: at para. 32.
[27] Ms. Tan asked the trial judge to replace the 2005 divorce order with a new one based on the evidence before the Court. The trial judge declined to do so, as “this is not the proceeding in which the divorce was originally sought and it is not a proceeding in which a divorce has ever been sought”: at para. 34.
[28] Given that the 2005 divorce order was set aside and a new one was not ordered, the trial proceeded on the basis that the parties were, and continued to be, legally married.
BC Appeals Of Fraud Involved In Divorce Order Tel: 604 602 9000
Clients often ask our top rated Vancouver family law appeals lawyers what the test is to change a trial order they are unhappy with or how to defend a claim by their ex-spouse to set aside a trail win they had in their family law case. Here is what the Bc Court of Appeal sets out as the test to win an appeal:
Standard of Review
[22] As this Court recently stated in Naimi v. Yunusova, 2023 BCCA 124:
[28] Appeal courts must apply a highly deferential standard of review to all family law matters, including issues of property division. We may intervene only where there is a material error, a serious misapprehension of the evidence, or an error of law: Hickey v. Hickey, [1999] 2 S.C.R. 518 at para. 12, 1999 CanLII 691.
[29] Our role is not to re-do the work of the trial judge by allowing parties to reargue the case but to correct errors. This strict and limited scope is necessary to promote finality in the resolution of parties’ issues, to uphold public confidence in the judicial process and to ground the proper administration of justice: Barendregt v. Grebliunas, 2022 SCC 22 at paras. 100–104. It recognizes that the trial judge is in “an advantageous position when it comes to assessing and weighing vast quantities of evidence”, and it is “not the role of appellate courts to second-guess the weight to be assigned to … evidence … [nor] to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion”: Housen v. Nikolaisen, 2002 SCC 33 at para. 22–23.
[30] In application, this means that deference is given to the findings and conclusions of the trial judge, except where there is an error of law or a palpable and overriding error of fact. Palpable means the error is obvious and overriding means that it goes to the core of the outcome of the case. Both inferences of fact and findings of fact are subject to this standard. Put another way, we will not interfere where there is some evidence upon which the judge could have relied to come to their decision: Housen at paras. 1, 8, 10, 19, and 36.
[31] A high standard also applies to the review of a judge’s discretionary decision. An appeal court will defer to the judge’s exercise of their discretion except where they have made an error in principle, or made a palpable error such as failing to consider relevant circumstances or misconceiving the evidence, or the decision is so clearly wrong that permitting the order to stand would work an injustice: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at para. 43; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at para. 27.
[23] The following observation in Naimi also applies on this appeal:
[32] Mr. Naimi misunderstands the role of this Court. His appeal is an impermissible “second kick at the can”:Barendregt at para. 39. He repeats arguments made below and attempts to re-litigate the factual findings of the trial judge, who had the benefit of observing the parties and receiving the evidence first-hand. Such an approach is not consonant with the strict standard of review this Court must apply.
[Emphasis added.]
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