0917紐約時報
*【在與澳洲的潛艇交易中,美國反擊中國,但激怒了法國】
這一反應表明西方盟國在中國問題上的分歧正在擴大。法國官員指責拜登總統表現得像他的前任。
https://www.nytimes.com/2021/09/16/world/europe/france-australia-uk-us-submarines.html
*【美國稱只在幾小時前才通知法國,巴黎稱這是在背後捅刀】
美國承認,只給法國幾個小時的通知,就其向澳洲提供核動力潛艇的協議,法國官員譴責此舉是其最親密盟友之一的重大背叛。法國一直試圖與澳洲達成數十億美元的協定,法國官員表示,拜登週三在白宮宣佈的新協議實際上是對澳洲和英國領導人的冒犯。法國人的憤怒程度讓人想起了2003年巴黎和華盛頓之間在伊拉克戰爭問題上的激烈爭執。
https://www.nytimes.com/2021/09/16/us/politics/france-us-biden-australia-submarine.html
*【紐時遠赴三千英里採訪 探索普丁如何塑造俄羅斯】
在俄羅斯本週末舉行選舉之前,許多選民表示,他們厭倦了普丁總統統治下的腐敗,但他們也害怕變革。記者走遍俄羅斯,探索普丁如何能夠保持對該國的控制。
https://www.nytimes.com/2021/09/16/world/europe/russia-election-vote-putin.html
*【調查稱世界銀行官員人為調高中國商業排名】
一項針對世界銀行操控其報告的調查發現,包括前世行首席執行官、現任國際貨幣基金組織總裁的格奧杰娃在內的多名官員曾指示工作人員更改資料,以誇大中國在2018年《營商環境報告》中的地位,以避免激怒中國、增加資本。美國財政部表示對該指控表示擔憂,並稱正在對調查報告進行分析。
https://www.nytimes.com/2021/09/16/business/world-bank-Kristalina-Georgieva.html
*【Covid-19實時更新】
#愛達荷州允許全州不堪重負的醫院在必要時進行定量護理。由於醫院難以應對大量患者,愛達荷州官員周四在全州範圍內啟動了“危機護理標準”,允許不堪重負的設施在需要時進行定量治療。
#根據最新的聯邦數據,截至 6 月 1 日,療養院工作人員和居民中的新冠肺炎死亡人數佔全國大流行病死亡人數的近三分之一,工作人員的疫苗接種率平均約為 63% 。
#義大利政府週四宣布,意大利將要求其居民出示健康通行證才能上班。它是歐洲第一個如此廣泛地要求冠狀病毒疫苗接種證書的國家。
#西雅圖地區將需要對大多數室內活動進行 Covid 疫苗接種或陰性測試。
#非洲公共衛生專家呼籲聯合國大會加快疫苗的交付。據世界衛生組織稱,非洲只有 3.6% 的人接種過到目前為止完全接種了疫苗。
#世界衛生組織警告說,在西半球,過去一周新報告病例增加了 20%。這一增長是因北美帶來的,北美的新病例增加了三分之一。
https://www.nytimes.com/live/2021/09/16/world/covid-delta-variant-vaccine?type=styln-live-updates&label=coronavirus%20updates&index=0
*【中國已為10億人完成新冠疫苗接種】
當局週四宣佈的這一消息對這個世界上人口最多的國家來說是一個里程碑,當前已接種疫苗人口占總人口的71%,使其距離年底前為80%的人口接種疫苗的目標更近一步。由於多次受Delta變種病毒威脅,中國最近數月擴大了疫苗供應,並採取了更強硬的接種措施。衛計委高級官員雷正龍表示,中國接種的總劑次和覆蓋人數均居全球首位。
https://www.nytimes.com/2021/09/16/world/china-covid-vaccine.html
*【成千上萬的阿富汗人在美國軍事基地等待重新安置】
在逃離喀布爾數周後,數萬名希望在美國得到重新安置的阿富汗人被困在美國各地和該國在海外的軍事基地,等待進一步的醫療和安全檢查。但小規模的麻疹疫情造成延誤,導致疏散航班停擺。美國國務卿布林肯在本周的國會證詞中為拜登政府的疏散行動辯護,他表示“我們完成了史上最大的空運行動之一,將12.4萬人疏散到安全地點。“
https://www.nytimes.com/2021/09/16/us/politics/afghan-refugees.html
*【菲律賓總統杜特蒂拒絕配合“禁毒戰爭”調查】
在海牙國際刑事法院授權對菲律賓總統這場造成數千人死亡的反毒品運動進行調查後,杜特蒂的一名律師稱,不會允許國際刑事法院代表進入該國。
https://www.nytimes.com/2021/09/16/world/asia/philippines-duterte-icc-hague.html
*【前喬治城大學網球教練承認在招生醜聞中罪行】
美國大學招生醜聞,前喬治城大學網球教練戈登·恩斯特對指控認罪,他被指控收受賄賂,幫助至少12名學生進入該校,其中一些學生完全不會打網球。
https://www.nytimes.com/2021/09/15/us/georgetown-tennis-coach-guilty-varsity-blues.html
*【連環性虐案:美國體操隊員批FBI處理不當】
本案是美國史上最嚴重的兒童性虐待案件之一。體操名將Biles及其隊友出席國會聽證會,對促成納薩爾犯罪的“整個系統”作出譴責。FBI局長為該機構在該案中的“失職”道歉。
https://cn.nytimes.com/usa/20210916/fbi-hearing-larry-nassar-biles-maroney/
同時也有2部Youtube影片,追蹤數超過43萬的網紅Bit King REAL Taiwan's true politics,也在其Youtube影片中提到,為避免頻道被民主,請麻煩主、副頻道一起訂閱 副頻道連結https://bit.ly/2UNifMu 💰支持比特王為公理正義發聲,開放小額捐款。 ➜ 🌝https://p.ecpay.com.tw/3470D (贊助方式:信用卡、ATM、網路ATM、超商都可!) ➜ 馬上訂閱 ➜ ht...
hearing法院 在 江魔的魔界(Kong Keen Yung 江健勇) Facebook 的最佳貼文
這是前些日子爆出已經被加拿大法院接理對藏傳佛教噶舉派法王的訟訴。(加拿大法院鏈接在此:https://www.bccourts.ca/jdb-txt/sc/21/09/2021BCSC0939cor1.htm?fbclid=IwAR2FLZlzmUIGTBaTuKPVchEqqngcE3Qy6G_C0TWNWVKa2ksbIYkVJVMQ8f8)
這位法王的桃色事件,我是幾年前才聽到。但,藏傳佛教的高層有這些性醜聞,我已經聽了幾十年。我以前的一位前女友也被一些堪布藉故上她的家摟抱過,也有一些活佛跟她表白。(這不只是她,其他地方我也聽過不少)
這是一個藏傳佛教裡面系統式的問題。
很多時候發生這種事情,信徒和教主往往都是說女方得不到寵而報仇,或者說她們也精神病,或者說她們撒謊。
我不排除有這種可能性,但,多過一位,甚至多位出來指證的時候,我是傾向於相信『沒有那麼巧這麼多有精神病的女人要撒謊來報仇』。
大寶法王的桃色事件,最先吹哨的是一位台灣的在家信徒,第二位是香港的女出家人,現在加拿大又多一位公開舉報上法庭。
對大寶法王信徒來說,這一次的比較麻煩,因為是有孩子的。(關於有孩子的,我早在法王的桃色事件曝光時,就有聽聞)
如果法庭勒令要驗證DNA,這對法王和他的信徒來說,會很尷尬和矛盾,因為做或不做,都死。
你若問我,我覺得『人數是有力量的』,同時我也覺得之後有更多的人站出來,是不出奇的。
我也藉此呼籲各方佛教徒,如果你們真的愛佛教,先別說批判,但如鴕鳥般不討論這些爭議,你是間接害了佛教。
(下面是我從加拿大法院鏈接拷貝下來的內容,當中有很多細節。)
Table of Contents
INTRODUCTION
BACKGROUND
ANALYSIS
A. The Spousal Support Claim in this Case
B. The Test to Amend Pleadings
C. Pleadings in Family Law Cases
D. The Legal Concept of a Marriage-Like Relationship
E. Is There a Reasonable Claim of a Marriage-Like Relationship?
F. Delay / Prejudice
CONCLUSION
INTRODUCTION
[1] The claimant applies to amend her notice of family claim to seek spousal support. At issue is whether the claimant’s allegations give rise to a reasonable claim she lived with the respondent in a marriage-like relationship, so as to give rise to a potential entitlement to spousal support under the Family Law Act, S.B.C. 2011, c. 25 (“FLA”).
[2] The facts alleged by the claimant do not fit within a traditional concept of marriage. The claimant does not allege that she and the respondent ever lived together. Indeed, she has only met the respondent in person four times: twice very briefly in a public setting; a third time in private, when she alleges the respondent sexually assaulted her; and a fourth and final occasion, when she informed the respondent she was pregnant with his child.
[3] The claimant’s case is that what began as a non-consensual sexual encounter evolved into a loving and affectionate relationship. That relationship occurred almost entirely over private text messages. The parties rarely spoke on the telephone, and never saw one another during the relationship, even over video. The claimant says they could not be together because the respondent is forbidden by his station and religious beliefs from intimate relationships or marriage. Nonetheless, she alleges, they formed a marriage-like relationship that lasted from January 2018 to January 2019.
[4] The respondent denies any romantic relationship with the claimant. While he acknowledges providing emotional and financial support to the claimant, he says it was for the benefit of the child the claimant told him was his daughter.
[5] The claimant’s proposed amendment raises a novel question: can a secret relationship that began on-line and never moved into the physical world be like a marriage? In my view, that question should be answered by a trial judge after hearing all of the evidence. The alleged facts give rise to a reasonable claim the claimant lived with the respondent in a marriage-like relationship. Accordingly, I grant the claimant leave to amend her notice of family claim.
BACKGROUND
[6] It should be emphasized that this is an application to amend pleadings only. The allegations by the claimant are presumed to be true for the purposes of this application. Those allegations have not been tested in a court of law.
[7] The respondent, Ogyen Trinley Dorje, is a high lama of the Karma Kagyu School of Tibetan Buddhism. He has been recognized and enthroned as His Holiness, the 17th Gyalwang Karmapa. Without meaning any disrespect, I will refer to him as Mr. Dorje in these reasons for judgment.
[8] Mr. Dorje leads a monastic and nomadic lifestyle. His true home is Tibet, but he currently resides in India. He receives followers from around the world at the Gyuto Monetary in India. He also travels the world teaching Tibetan Buddhist Dharma and hosting pujas, ceremonies at which Buddhists express their gratitude and devotion to the Buddha.
[9] The claimant, Vikki Hui Xin Han, is a former nun of Tibetan Buddhism. Ms. Han first encountered Mr. Dorje briefly at a large puja in 2014. The experience of the puja convinced Ms. Han she wanted to become a Buddhist nun. She met briefly with Mr. Dorje, in accordance with Kagyu traditions, to obtain his approval to become a nun.
[10] In October 2016, Ms. Han began a three-year, three-month meditation retreat at a monastery in New York State. Her objective was to learn the practices and teachings of the Kagyu Lineage. Mr. Dorje was present at the retreat twice during the time Ms. Han was at the monastery.
[11] Ms. Han alleges that on October 14, 2017, Mr. Dorje sexually assaulted her in her room at the monastery. She alleges that she became pregnant from the assault.
[12] After she learned that she was pregnant, Ms. Han requested a private audience with Mr. Dorje. In November 2017, in the presence of his bodyguards, Ms. Han informed Mr. Dorje she was pregnant with his child. Mr. Dorje initially denied responsibility; however, he provided Ms. Han with his email address and a cellphone number, and, according to Ms. Han, said he would “prepare some money” for her.
[13] Ms. Han abandoned her plan to become a nun, left the retreat and returned to Canada. She never saw Mr. Dorje again.
[14] After Ms. Han returned to Canada, she and Mr. Dorje began a regular communication over an instant messaging app called Line. They also exchanged emails and occasionally spoke on the telephone.
[15] The parties appear to have expressed care and affection for one another in these communications. I say “appear to” because it is difficult to fully understand the meaning and intentions of another person from brief text messages, especially those originally written in a different language. The parties wrote in a private shorthand, sharing jokes, emojis, cartoon portraits and “hugs” or “kisses”. Ms. Han was the more expressive of the two, writing more frequently and in longer messages. Mr. Dorje generally participated in response to questions or prompting from Ms. Han, sometimes in single word messages.
[16] Ms. Han deposes that she believed Mr. Dorje was in love with her and that, by January 2018, she and Mr. Dorje were living in a “conjugal relationship”.
[17] During their communications, Ms. Han expressed concern that her child would be “illegitimate”. She appears to have asked Mr. Dorje to marry her, and he appears to have responded that he was “not ready”.
[18] Throughout 2018, Mr. Dorje transferred funds in various denominations to Ms. Han through various third parties. Ms. Han deposes that these funds were:
a) $50,000 CDN to deliver the child and for postpartum care she was to receive at a facility in Seattle;
b) $300,000 CDN for the first year of the child’s life;
c) $20,000 USD for a wedding ring, because Ms. Han wrote “Even if we cannot get married, you must buy me a wedding ring”;
d) $400,000 USD to purchase a home for the mother and child.
[19] On June 19, 2018, Ms. Han gave birth to a daughter in Richmond, B.C.
[20] On September 17, 2018, Mr. Dorje wrote, ”Taking care of her and you are my duty for life”.
[21] Ms. Han’s expectation was that the parties would live together in the future. She says they planned to live together. Those plans evolved over time. Initially they involved purchasing a property in Toronto, so that Mr. Dorje could visit when he was in New York. They also discussed purchasing property in Calgary or renting a home in Vancouver for that purpose. Ms. Han eventually purchased a condominium in Richmond using funds provided by Mr. Dorje.
[22] Ms. Han deposes that the parties made plans for Mr. Dorje to visit her and meet the child in Richmond. In October 2018, however, Mr. Dorje wrote that he needed to “disappear” to Europe. He wrote:
I will definitely find a way to meet her
And you
Remember to take care of yourself if something happens
[23] The final plan the parties discussed, according to Ms. Han, was that Mr. Dorje would sponsor Ms. Han and the child to immigrate to the United States and live at the Kagyu retreat centre in New York State.
[24] In January 2019, Ms. Han lost contact with Mr. Dorje.
[25] Ms. Han commenced this family law case on July 17, 2019, seeking child support, a declaration of parentage and a parentage test. She did not seek spousal support.
[26] Ms. Han first proposed a claim for spousal support in October 2020 after a change in her counsel. Following an exchange of correspondence concerning an application for leave to amend the notice of family claim, Ms. Han’s counsel wrote that Ms. Han would not be advancing a spousal support claim. On March 16, 2020, counsel reversed course, and advised that Ms. Han had instructed him to proceed with the application.
[27] When this application came on before me, the trial was set to commence on June 7, 2021. The parties were still in the process of discoveries and obtaining translations for hundreds of pages of documents in Chinese characters.
[28] At a trial management conference on May 6, 2021, noting the parties were not ready to proceed, Madam Justice Walkem adjourned the trial to April 11, 2022.
ANALYSIS
A. The Spousal Support Claim in this Case
[29] To claim spousal support in this case, Ms. Han must plead that she lived with Mr. Dorje in a marriage-like relationship. This is because only “spouses” are entitled to spousal support, and s. 3 of the Family Law Act defines a spouse as a person who is married or has lived with another person in a marriage-like relationship:
3 (1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
[30] Because she alleges she has a child with Mr. Dorje, Ms. Han need not allege that the relationship endured for a continuous period of two years to claim spousal support; but she must allege that she lived in a marriage-like relationship with him at some point in time. Accordingly, she must amend the notice of family claim.
B. The Test to Amend Pleadings
[31] Given that the notice of trial has been served, Ms. Han requires leave of the court to amend the notice of family claim: Supreme Court Family Rule 8-1(1)(b)(i).
[32] A person seeking to amend a notice of family claim must show that there is a reasonable cause of action. This is a low threshold. What the applicant needs to establish is that, if the facts pleaded are proven at trial, they would support a reasonable claim. The applicant’s allegations of fact are assumed to be true for the purposes of this analysis. Cantelon v. Wall, 2015 BCSC 813, at para. 7-8.
[33] The applicant’s delay, the reasons for the delay, and the prejudice to the responding party are also relevant factors. The ultimate consideration is whether it would be just and convenient to allow the amendment. Cantelon, at para. 6, citing Teal Cedar Products Ltd. v. Dale Intermediaries Ltd. et al (1986), 19 B.C.L.R. (3d) 282.
C. Pleadings in Family Law Cases
[34] Supreme Court Family Rules 3-1(1) and 4-1(1) require that a claim to spousal support be pleaded in a notice of family claim in Form F3. Section 2 of Form F3, “Spousal relationship history”, requires a spousal support claimant to check the boxes that apply to them, according to whether they are or have been married or are or have been in a marriage-like relationship. Where a claimant alleges a marriage-like relationship, Form F3 requires that they provide the date on which they began to live together with the respondent in a marriage-like relationship and, where applicable, the date on which they separated. Form F3 does not require a statement of the factual basis for the claim of spousal support.
[35] In this case, Ms. Han seeks to amend the notice of family claim to allege that she and Mr. Dorje began to live in a marriage-like relationship in or around January 2018, and separated in or around January 2019.
[36] An allegation that a person lived with a claimant in a marriage-like relationship is a conclusion of law, not an allegation of fact. Unlike the rules governing pleadings in civil actions, however, the Supreme Court Family Rules do not expressly require family law claimants to plead the material facts in support of conclusions of law.
[37] In other words, there is no express requirement in the Supreme Court Family Rules that Ms. Han plead the facts on which she relies for the allegation she and Mr. Dorje lived in a marriage-like relationship.
[38] Rule 4-6 authorizes a party to demand particulars, and then apply to the court for an order for further and better particulars, of a matter stated in a pleading. However, unless and until she is granted leave and files the proposed amended notice of family claim, Ms. Han’s allegation of a marriage-like relationship is not a matter stated in a pleading.
[39] Ms. Han filed an affidavit in support of her application to amend the notice of family claim. Normally, evidence would not be required or admissible on an application to amend a pleading. However, in the unusual circumstances of this case, the parties agreed I may look to Ms. Han’s affidavit and exhibits for the facts she pleads in support of the allegation of a marriage-like relationship.
[40] Because this is an application to amend - and Ms. Han’s allegations of fact are presumed to be true - I have not considered Mr. Dorje’s responding affidavit.
[41] Relying on affidavit evidence for an application to amend pleadings is less than ideal. It tends to merge and confuse the material facts with the evidence that would be relied on to prove those facts. In a number of places in her affidavit, for example, Ms. Han describes her feelings, impressions and understandings. A person’s hopes and intentions are not normally material facts unless they are mutual or reasonably held. The facts on which Ms. Han alleges she and Mr. Dorje formed a marriage-like relationship are more important for the present purposes than her belief they entered into a conjugal union.
[42] Somewhat unusually, in this case, almost all of the parties’ relevant communications were in writing. This makes it somewhat easier to separate the facts from the evidence; however, as stated above, it is difficult to understand the intentions and actions of a person from brief text messages.
[43] In my view, it would be a good practice for applicants who seek to amend their pleadings in family law cases to provide opposing counsel and the court with a schedule of the material facts on which they rely for the proposed amendment.
D. The Legal Concept of a Marriage-Like Relationship
[44] As Mr. Justice Myers observed in Mother 1 v. Solus Trust Company, 2019 BCSC 200, the concept of a marriage-like relationship is elastic and difficult to define. This elasticity is illustrated by the following passage from Yakiwchuk v. Oaks, 2003 SKQB 124, quoted by Myers J. at para. 133 of Mother 1:
[10] Spousal relationships are many and varied. Individuals in spousal relationships, whether they are married or not, structure their relationships differently. In some relationships there is a complete blending of finances and property - in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. For some couples, sexual relations are very important - for others, that aspect may take a back seat to companionship. Some spouses do not share the same bed. There may be a variety of reasons for this such as health or personal choice. Some people are affectionate and demonstrative. They show their feelings for their “spouse” by holding hands, touching and kissing in public. Other individuals are not demonstrative and do not engage in public displays of affection. Some “spouses” do everything together - others do nothing together. Some “spouses” vacation together and some spend their holidays apart. Some “spouses” have children - others do not. 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. Rarely is there any type of “public” declaration of intent. Often people begin cohabiting with little forethought or planning. Their motivation is often nothing more than wanting to “be together”. Some individuals have chosen to enter relationships outside marriage because they did not want the legal obligations imposed by that status. Some individuals have simply given no thought as to how their relationship would operate. Often the date when the cohabitation actually began is blurred because people “ease into” situations, spending more and more time together. Agreements between people verifying when their relationship began and how it will operate often do not exist.
[45] In Mother 1, Mr. Justice Myers referred to a list of 22 factors grouped into seven categories, from Maldowich v. Penttinen, (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), that have frequently been cited in this and other courts for the purpose of determining whether a relationship was marriage-like, at para. 134 of Mother 1:
1. Shelter:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
2. Sexual and Personal Behaviour:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
3. Services:
What was the conduct and habit of the parties in relation to:
(a) preparation of meals;
(b) washing and mending clothes;
(c) shopping;
(d) household maintenance; and
(e) any other domestic services?
4. Social:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?
5. Societal:
What was the attitude and conduct of the community toward each of them and as a couple?
6. Support (economic):
(a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
7. Children:
What was the attitude and conduct of the parties concerning children?
[46] In Austin v. Goerz, 2007 BCCA 586, the Court of Appeal cautioned against a “checklist approach”; rather, a court should "holistically" examine all the relevant factors. Cases like Molodowich provide helpful indicators of the sorts of behaviour that society associates with a marital relationship, the Court of Appeal said; however, “the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like” (para. 58).
[47] In Weber v. Leclerc, 2015 BCCA 492, the Court of Appeal again affirmed that there is no checklist of characteristics that will be found in all marriages and then concluded with respect to evidence of intentions:
[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”. While the court will consider the evidence expressly describing the parties’ intentions during the relationship, it will also test that evidence by considering whether the objective evidence is consonant with those intentions.
[24] The question of whether a relationship is “marriage-like” will also typically depend on more than just their intentions. Objective evidence of the parties’ lifestyle and interactions will also provide direct guidance on the question of whether the relationship was “marriage-like”.
[48] Significantly for this case, the courts have looked to mutual intent in order to find a marriage-like relationship. See, for example, L.E. v. D.J., 2011 BCSC 671 and Buell v. Unger, 2011 BCSC 35; Davey Estate v. Gruyaert, 2005 CarswellBC 3456 at 13 and 35.
[49] In Mother 1, Myers J. concluded his analysis of the law with the following learned comment:
[143] Having canvassed the law relating to the nature of a marriage-like relationship, I will digress to point out the problematic nature of the concept. It may be apparent from the above that determining whether a marriage-like relationship exists sometimes seems like sand running through one's fingers. Simply put, a marriage-like relationship is akin to a marriage without the formality of a marriage. But as the cases mentioned above have noted, people treat their marriages differently and have different conceptions of what marriage entails.
[50] In short, the determination of whether the parties in this case lived in a marriage-like relationship is a fact-specific inquiry that a trial judge would need to make on a “holistic” basis, having regard to all of the evidence. While the trial judge may consider the various factors listed in the authorities, those factors would not be treated as a checklist and no single factor or category of factors would be treated as being decisive.
E. Is There a Reasonable Claim of a Marriage-Like Relationship?
[51] In this case, many of the Molodowich factors are missing:
a) The parties never lived under the same roof. They never slept together. They were never in the same place at the same time during the relationship. The last time they saw each other in person was in November 2017, before the relationship began.
b) The parties never had consensual sex. They did not hug, kiss or hold hands. With the exception of the alleged sexual assault, they never touched one another physically.
c) The parties expressed care and affection for one another, but they rarely shared personal information or interest in their lives outside of their direct topic of communication. They did not write about their families, their friends, their religious beliefs or their work.
d) They expressed concern and support for one another when the other felt unwell or experienced health issues, but they did not provide any care or assistance during illness or other problems.
e) They did not assist one another with domestic chores.
f) They did not share their relationship with their peers or their community. There is no allegation, for example, that Mr. Dorje told his fellow monks or any of his followers about the relationship. There is no allegation that Ms. Han told her friends or any co-workers. Indeed, there is no allegation that anyone, with the exception of Ms. Han’s mother, knew about the relationship. Although Mr. Dorje gave Ms. Han’s mother a gift, he never met the mother and he never spoke to her.
g) They did not intend to have a child together. The child was conceived as a result of a sexual assault. While Mr. Dorje expressed interest in “meeting” the child, he never followed up. He currently has no relationship with the child. There is no allegation he has sought access or parenting arrangements.
[52] The only Molodowich factor of any real relevance in this case is economic support. Mr. Dorje provided the funds with which Ms. Han purchased a condominium. Mr. Dorje initially wrote that he wanted to buy a property with the money, but, he wrote, “It’s the same thing if you buy [it]”.
[53] Mr. Dorje also provided a significant amount of money for Ms. Han’s postpartum care and the child’s first year of life.
[54] This financial support may have been primarily for the benefit of the child. Even the condominium, Ms. Han wrote, was primarily for the benefit of the child.
[55] However, in my view, a trial judge may attach a broader significance to the financial support from Mr. Dorje than child support alone. A trial judge may find that the money Mr. Dorje provided to Ms. Han at her request was an expression of his commitment to her in circumstances in which he could not commit physically. The money and the gifts may be seen by the trial judge to have been a form of down payment by Mr. Dorje on a promise of continued emotional and financial support for Ms. Han, or, in Mr. Dorje’s own words, “Taking care of her and you are my duty for life” (emphasis added).
[56] On the other hand, I find it difficult to attach any particular significance to the fact that Mr. Dorje agreed to provide funds for Ms. Han to purchase a wedding ring. It appears to me that Ms. Han demanded that Mr. Dorje buy her a wedding ring, not that the ring had any mutual meaning to the parties as a marriage symbol. But it is relevant, in my view, that Mr. Dorje provided $20,000 USD to Ms. Han for something she wanted that was of no benefit to the child.
[57] Further, Ms. Han alleges that the parties intended to live together. At a minimum, a trial judge may find that the discussions about where Ms. Han and the child would live reflected a mutual intention of the parties to see one another and spend time together when they could.
[58] Mr. Dorje argues that an intention to live together at some point in the future is not sufficient to show that an existing relationship was marriage-like. He argues that the question of whether the relationship was marriage-like requires more than just intentions, citing Weber, supra.
[59] In my view, the documentary evidence referred to above provides some objective evidence in this case that the parties progressed beyond mere intentions. As stated, the parties appear to have expressed genuine care and affection for one another. They appear to have discussed marriage, trust, honesty, finances, mutual obligations and acquiring family property. These are not matters one would expect Mr. Dorje to discuss with a friend or a follower, or even with the mother of his child, without a marriage-like element of the relationship.
[60] A trial judge may find on the facts alleged by Ms. Han that the parties loved one another and would have lived together, but were unable to do so because of Mr. Dorje’s religious duties and nomadic lifestyle.
[61] The question I raised in the introduction to these reasons is whether a relationship that began on-line and never moved into the physical world can be marriage-like.
[62] Notably, the definition of a spouse in the Family Law Act does not require that the parties live together, only that they live with another person in a marriage-like relationship.
[63] In Connor Estate, 2017 BCSC 978, Mr. Justice Kent found that a couple that maintained two entirely separate households and never lived under the same roof formed a marriage-like relationship. (Connor Estate was decided under the intestacy provisions of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 ("WESA"), but courts have relied on cases decided under WESA and the FLA interchangeably for their definitions of a spouse.) Mr. Justice Kent found:
[50] The evidence is overwhelming and I find as a fact that Mr. Chambers and Ms. Connor loved and cared deeply about each other, and that they had a loving and intimate relationship for over 20 years that was far more than mere friendship or even so-called "friendship with benefits". I accept Mr. Chambers' evidence that he would have liked to share a home with Ms. Connor after the separation from his wife, but was unable to do so because of Ms. Connor's hoarding illness. The evidence amply supports, and I find as a fact, that Mr. Chambers and Ms. Connor loved each other, were faithful to each other, communicated with each other almost every day when they were not together, considered themselves to be (and presented themselves to be) "husband and wife" and were accepted by all who knew them as a couple.
[64] Connor Estate may be distinguishable from this case because Mr. Chambers and Ms. Connor were physically intimate for over 20 years, and presented themselves to the world as a married couple.
[65] Other decisions in which a marriage-like relationship has been found to exist despite the parties not living together have involved circumstances in which the couple lived under the same roof at previous points in the relationship, and the issue was whether they continued to be spouses after they took up separate residences: in Thompson v. Floyd, 2001 BCCA 78, the parties had lived together for a period of at least 11 years; in Roach v. Dutra, 2010 BCCA 264, the parties had lived together for approximately three years.
[66] However, as Mr. Justice Kent noted in Connor Estate:
[48] … [W]hile much guidance might be found in this case law, the simple fact is that no two cases are identical (and indeed they usually vary widely) and it is the assessment of evidence as a whole in this particular case which matters.
[67] Mr. Justice Kent concluded:
[53] Like human beings themselves, marriage-like relationships can come in many and various shapes. In this particular case, I have no doubt that such a relationship existed …
[68] As stated, Ms. Han’s claim is novel. It may even be weak. Almost all of the traditional factors are missing. The fact that Ms. Han and Mr. Dorje never lived under the same roof, never shared a bed and never even spent time together in person will militate against a finding they lived with one another in a marriage-like relationship. However, the traditional factors are not a mandatory check-list that confines the “elastic” concept of a marriage-like relationship. And if the COVID pandemic has taught us nothing else, it is that real relationships can form, blossom and end in virtual worlds.
[69] In my view, the merits of Ms. Han’s claim should be decided on the evidence. Subject to an overriding prejudice to Mr. Dorje, she should have leave to amend the notice of family claim. However, she should also provide meaningful particulars of the alleged marriage-like relationship.
F. Delay / Prejudice
[70] Ms. Han filed her notice of family claim on July 17, 2019. She brought this application to amend approximately one year and nine months after she filed the pleading, just over two months before the original trial date.
[71] Ms. Han’s delay was made all that more remarkable by her change in position from January 19, 2021, when she confirmed, through counsel, that she was not seeking spousal support in this case.
[72] Ms. Han gave notice of her intention to proceed with this application to Mr. Dorje on March 16, 2021. By the time the application was heard, the parties had conducted examinations for discovery without covering the issues that would arise from a claim of spousal support.
[73] Also, in April, Ms. Han produced additional documents, primarily text messages, that may be relevant to her claim of spousal support, but were undecipherable to counsel for Mr. Dorje, who does not read Mandarin.
[74] This application proceeded largely on documents selected and translated by counsel for Ms. Han. I was informed that Mandarin translations of the full materials would take 150 days.
[75] Understandably in the circumstances, Mr. Dorje argued that an amendment two months before trial would be neither just nor convenient. He argued that he would be prejudiced by an adjournment so as to allow Ms. Han to advance a late claim of spousal support.
[76] The circumstances changed on May 6, 2021, when Madam Justice Walkem adjourned the trial to July 2022 and reset it for 25 days. Madam Justice Walkem noted that most of the witnesses live internationally and require translators. She also noted that paternity may be in issue, and Mr. Dorje may amend his pleadings to raise that issue. It seems clear that, altogether apart from the potential spousal support claim, the parties were not ready to proceed to trial on June 7, 2021.
[77] In my view, any remaining prejudice to Mr. Dorje is outweighed by the importance of having all of the issues between the parties decided on their merits.
[78] Ms. Han’s delay and changes of position on spousal support may be a matter to de addressed in a future order of costs; but they are not grounds on which to deny her leave to amend the notice of family claim.
CONCLUSION
[79] Ms. Han is granted leave to amend her notice of family claim in the form attached as Appendix A to the notice of application to include a claim for spousal support.
[80] Within 21 days, or such other deadline as the parties may agree, Ms. Han must provide particulars of the marriage-like relationship alleged in the amended notice of family claim.
[81] Ms. Han is entitled to costs of this application in the cause of the spousal support claim.
“Master Elwood”
hearing法院 在 凌淑芬 Facebook 的最讚貼文
《#凌某人閒聊》家暴犯就躲在隔壁
這個離譜的案子發生在美國密西根州。在疫情隔離期間,法院聽審也改為以Zoom來進行,這天審的是一樁家暴案。
今年二月,瑪莉(Mary Lindsey)和她男朋友柯比(Coby Harris)吵架,結果被他毆打和勒頸。事後瑪莉向警方申請保護令,而柯比被控重傷害的罪名,獲得交保,但不得與她接觸。
當天在線上的有法官、助理檢察官黛伯菈(代表瑪莉),柯比及他的律師,還有警察及書記官等人。
美女檢察官先詢問瑪莉二月時發生的案件,可是瑪莉看起來神色不寧,講話也避重就輕的。檢察官越聽越不對,突然說:「庭上,我的當事人講話一直看旁邊,而且明顯有顧忌,我懷疑柯比現在就同一間屋子裡,我非常擔心她的安危。」
法官一聽,立刻問瑪莉,「妳現在在哪裡?」瑪莉支支吾吾,最後報了她家的地址。
法官再問柯比:「你現在人在哪裡?」柯比給了一個完全不同的地址。
法官說:「柯比,你現在立刻走到門外,用手機拍你的門牌號碼讓我看.」柯比開始推拖:「呃……我的手機只剩2%的電……我正在充電,我沒辦法走遠。」
線上的警察非常機警,早已聯繫了同仁趕到瑪莉家。這時檢察官馬上說:「警察現在就在門外,瑪莉,請妳出去幫警察開門。記得把手機帶著,讓我們確定妳很安全。」
就在這段過程中,瑪莉和柯比的畫面都暫時中斷。
下一刻,等訊號再回來,果然趕到的警察找到躲在隔壁房間的柯比。
柯比大聲對法官說:「法官,瑪莉和我都不想要這個『禁止接觸』的保護令,請你把它撤銷。」、「我不是故薏要撒謊的。」
法官立馬訓斥他:「我建議你最好不要再說話,你現在說的每句話都在自掘墳墓!你的交保正式取消,即使你身上有一千萬,你也永遠交不了保。」然後命令警察將他逮捕。
____
瑪莉事後說,當天她一回到家,就發現柯比已經躲在她家裡,讓她非常恐懼。
柯比是個暴力慣犯,有多項前科,目前面臨「重傷害」的罪名,最高可能被判15年;倘若檢察官加上「妨礙司法」等罪名,刑期有可能更長。
_______
原新聞:https://is.gd/ntdF4T
"Man’s Zoom court hearing ends with handcuffs after he’s found attending from victim’s home"
事發影片:https://is.gd/bkv6RJ
家暴嫌犯在視訊開庭時跑到被害人家中,被檢察官機警識破,家暴男當場被捕 (BC&Lowy中譯版)
hearing法院 在 Bit King REAL Taiwan's true politics Youtube 的最佳解答
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hearing法院 在 Brian2Taiwan Youtube 的最佳解答
2019年5月17日,台灣成為全亞洲第一個同性結婚合法的國家。早上下大雨的天空在立法院投票後突然變成美麗的晴天讓大家穿在身上的彩虹出來陪天空的真正的彩虹🌈
台灣一直都是很先進的國家,而且那天也成為全亞洲第一個有同性結婚法律的國家 同時也成為亞洲裡更特別的寶物
我這個外國人那天在立法院外面的現場跟著大群支持者支持這個權利。現場的氣氛那麼特別我非跟全球分享不可。
我想恭喜全部度過這個很長的一條路的人,也跟大家分享我的故事
兩年前台灣司法院出來說同性戀應該也要有權利結婚不過因為台灣法律的程序,有兩年的時間來修法律不然會自動執行
大家好~ 我是Brian,一個來自美國,住在台灣的台北的外國人。我住台灣快10年,學中文快15年。歡迎來到Brian愛台灣~
❤️🧡💛💚💙💜
On May 17, 2019, Taiwan became the first country in Asia to make gay marriage legal! What started as a rainy turned into a beautiful sunny day just after the votes to legalize marriage for all were made, letting the rainbows worn by those at the support rally become amplified by real rainbows in the sky.
Taiwan has always been a progressive nation, and, yesterday, it became the first country in Asia to have a gay marriage law; making it an even more unique treasure here in Asia.
I was outside the building at the support rally, and the atmosphere there was so special and unique that I just had to share it with the world.
I want to offer my congratulations to all those who
have endured such a difficult journey.
I also want to share my story with you.
Two years ago, Taiwan’s Constitutional Court ruled that marriage was a right for all. Due to legal processes in Taiwan, however, there was a two year waiting period during which legislators had the opportunity to alter the law, otherwise the change would automatically go into effect.
The Legislative Yuan, the legislative branch of the government, held a hearing to vote on the proposed bills regarding same-sex marriage.
Hi, I’m Brian. A foreigner from America (the US) who has lived in Taipei, Taiwan for nearly 10 years and studied Mandarin Chinese for nearly 15 years. Welcome to Brian2Taiwan.
❤️🧡💛💚💙💜
Please PLEASE share and help me show the world how special Taiwan really is~
Sorry for the mistakes in the subtitles.
I did all the shooting, editing, and captioning myself, so some mistakes, inevitably, got by me. Thanks.
拜託拜託幫我分享,讓我告訴全台灣全球台灣多獨特~ 字幕裡的錯誤請見了. 因為自己拍攝、剪片、上字幕,難免有一些錯誤被我錯過. 謝謝
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#taiwan #gaymarriage #samesexmarriage