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Curbing the Scourge of Predatory Marriages by Legislation

 

My colleague, Sareh (Lua) Ebrahimi recently posted a blog entitled “It’s a Start! Saskatchewan Introduces New Legislation To Tackle Predatory Marriages”. Without detracting in any way from her excellent blog, I want to add some further comments on the matter.

Saskatchewan’s Bill No. 175,[1] entitled “An Act to amend The Marriage Act, 1995[2] and to make consequential amendments to The Wills Act, 1996[3] was recently introduced in the Saskatchewan Legislature. Section 1 of the Bill assigns it the less cumbersome short title, The Marriage Amendment Act, 2019. It passed first reading on 31 October 2019.

The Bill does not by its terms address the evil of predatory marriages and, in my opinion, goes only partway in preventing such marriages. The Bill makes a number of housekeeping amendments to the Marriage Act. Apart from that, the Bill is concerned principally with the matter of consent to a marriage. Thus, for example, s. 7 of the Bill replaces s. 25 of the Marriage Act and provides that if a party to a marriage is under the age of 18, then, before the issuance of a licence, a consent given by the parents must be deposited with the issuer.[4]

The most significant change in the Bill is contained in s. 11. It adds a new section that provides as follows:

32.1(1) In an action by a person mentioned in subsection (2), the court may declare that a valid marriage was not effected or entered into if the court determines that one of the parties did not provide valid consent to enter into the contract of marriage.

(2) Subject to the regulations, an action mentioned in subsection (1) may be brought by any of the following:

(a) a party to the marriage;

(b) a family member of one of the parties to the marriage;

(c) any other person who has a close personal connection to one of the parties to the marriage;

(d) the public guardian and trustee if the public guardian and trustee is acting pursuant to The Public Guardian and Trustee Act[5] as a personal guardian, property guardian or administrator for one of the parties to the marriage.

(3) A declaration by the court that a valid marriage was not effected or entered into shall only be made after a trial.

While these changes are commendable, they do not address the issue of capacity to marry. And that is regrettable, for it is the issue that the cases dealing with predatory marriages invariable address, but one that causes the courts much difficulty. This is because the criteria that determine whether a person has capacity to marry are based in common law and they are lenient in the extreme. Thus, for example, in Durham v. Durham[6] the court stated: “the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend” and this statement is often repeated in modern Canadian cases. When that statement was made, marriage did not have major property implications, but today they do, since in most jurisdictions the parties gain significant property rights, in particular:

(a)  their existing wills, if any, are revoked by operation of law; and

(b) when the first of them dies without having made a new will, the survivor is entitled to all or part of his intestate estate and, in the alternative, depending upon the jurisdiction, she may elect an equalizing payment or claim a division of family property.

One would have thought that the criteria that determine capacity to marry should have been changed to conform to this new reality, but that has not happened. Some have suggested that the courts have applied stricter criteria in more recent cases, but that is debatable. In cases such as Devore-Thompson v. Poulain[7] and Hunt v. Worrad[8] there was no need for the courts to consider stricter criteria, since the evidence that the victim of the predatory marriage lacked capacity to marry was clear and overwhelming. This is not the place to explore this matter in greater detail, but my colleague Kimberly Whaley and I have spoken and written extensively about the matter, individually and collectively, and I refer the reader to our articles.[9]

In the seminal predatory marriage case, Banton v. Banton,[10] Justice Cullity had found that although the victim had initially resisted the predator’s attempts to get him to marry her, in the end he was “a willing victim” and consented to the marriage. However, as Justice Cullity also pointed out:

Consent, in the sense in which I have used the term is an act of will. In this sense it must be distinguished from capacity to marry. Although a lack of mental capacity may be said to vitiate or negative consent, they are obviously different concepts. A lack of consent does not presuppose, or entail, an absence of mental capacity.[11]

He then went on to consider whether the victim had capacity to marry. While he considered possible stricter criteria than the lenient ones mentioned above, in the end he felt that he had no option but to apply the latter and found that the victim had capacity to marry.[12]

Since consent to a marriage and capacity to marry are two different concepts it is regrettable that Bill 175 addresses only the first and the drafter did not take the opportunity to address the second, which is the focus of most predatory marriage cases.

In my opinion predatory marriages are an evil in our modern society. They are a scourge that steals property from the victim’s legitimate heirs and unjustly enriches the predator. They now occur frequently, and it is high time for our legislatures to address the problem. I am glad that Saskatchewan has taken this initial step, but more needs to be done.[13]

In 2017-18 I was a member of an Ontario Bar Association Working Group to address the issue. To initiate the discussion, I drafted a statute which I called Predatory Marriages Prevention Act. I did not intend the Act to be the final answer or solution to the problem, but merely the starting point of a conversation. Undoubtedly, it can be improved and perhaps safeguards need to be incorporated to ensure, for example, that the legislation does not prevent persons with limited abilities from marrying. The main purpose of the draft was and is to frustrate the designs of predators and deny them access to the property and estate of the victims. I attach a copy of the draft as a Schedule to this blog.

The draft does the following:

  1. enacts stricter criteria to measure capacity to marry;
  2. imposes an obligation on the issuers of marriage licenses and persons solemnizing a marriage to satisfy themselves that the parties have capacity to marry;
  3. overcomes the problem of standing by giving a number of persons standing to contest the validity of a marriage;
  4. empowers the court to deny a party to a marriage the property benefits he might otherwise enjoy;
  5. permits a person to lodge a caveat with the issuer of marriage licenses against the issuance of a license to a named person unless the issuer has inquired into the matter and is satisfied that the caveat does not prevent issuing the license; and
  6. repeals the automatic revocation of a will on marriage

The Working Group submitted the draft to the Ontario Attorney General’s Office, but was met by silence. Since then, Kimberly Whaley and I have discussed the draft at various conferences and have distributed the draft to other government representatives in Ontario and elsewhere in the hope that it will be acted upon.

In at least one respect Saskatchewan seems to have taken a leaf from s. 1 of the draft and in particular from the proposed new section 7.4, by providing in s. 32.1 that a variety of persons have standing to contest the validity of a marriage. This is a very important provision, since at common law a marriage is void if a party lacked capacity to marry and therefore anyone with an interest can contest the validity of the marriage for that reason. However, a marriage is only voidable in cases of duress, undue influence and fraud, so that only a party to the marriage and only while both parties are living can contest the validity of a marriage for those reasons. The issue of standing was raised in Banton v. Banton, but Justice Cullity stated that in view of his finding that the victim consented to the marriage, “it is unnecessary to deal with the questions whether duress makes a marriage void or voidable and, if the consequence is that the marriage is voidable, whether it can be set aside by anyone other than the parties. I express no opinion on these issues”.[14]

The other important change in Bill 175 is contained in s. 16. It repeals s. 16(a) and s. 17 of the Wills Act, which respectively provide that no will is revoked other than in accordance with s. 17; and that a will is revoked when the testator marries, or has cohabited in a spousal relationship continuously for two years, subject to certain exceptions. Thus s. 16 revokes the automatic revocation of a will on the testator’s marriage.[15] This will serve, in part, to frustrate the schemes of predators, because it will leave the original will that benefits the testator’s rightful heirs intact. However, by itself, it is only a partial solution, since it does not address the rights the predator has a surviving spouse to elect to share in the victim’s estate. Quebec has never had such a provision and it was repealed in both Alberta[16] and British Columbia.[17] My draft contains a similar provision in s. 2.

It is my hope that Canadian legislatures will finally enact legislation to address the scourge of predatory marriages.

[1]    Saskatchewan, Twenty-eighth Legislature, Fourth Session, Bill No. 175.

[2]    S.S. 1995, c M-4.1.

[3]    S.S. 1996, c, 14.1, as amended by S.S. 2001, c. 51, s. 10.

[4]    The new section makes provision for the consent of one parent, a guardian, or other named authorities.

[5]    S.S. 1983, c. P-36.3.

[6]    (1885), 10 P.D. 80 at 82, [1985] 1 T.L.R. 338 (Eng. P.D.A.).

[7]    2017 BCSC 1289, 28 E.T.R. (4th) 78, additional reasons 2018 BCSC 98, 2018 CarswellBC 104.

[8]    2017 ONSC 7397, 32 E.T.R. (4th) 232. See also additional reasons on costs 2018 ONSC 2133, 2018 CarswellOnt 6267 and 2018 ONSC 3093, varied 2019 ONCA 540. Leave to appeal has been filed.

[9]    See, e.g., Albert H. Oosterhoff, “Consequences of a January/December Marriage: A Cautionary Tale” (1999), 19 E.T.P.J. 261; Albert H. Oosterhoff, “Predatory Marriages” (2013), 33 E.T.P.J. 24; Kimberly A. Whaley and Albert H. Oosterhoff, “Predatory Marriages – Equitable Remedies” (2014), 34 E.T.P.J. 269; Kimberly A. Whaley and Albert H. Oosterhoff, “Predatory Marriages” (2018), 48 Adv. Q. 253.

[10]   1998 CarswellOnt 3432, para. 105, 164 D.L.R. (4th) 176, additional reasons 1998 CarswellOnt 4688, 164 D.L.R. (4th) 244 (Gen. Div.).

[11]   Ibid., para. 109.

[12]   Justice Cullity had already held earlier in the case that the victim lacked testamentary capacity and that the predator had exerted undue influence over him, so that the will he executed in her favour after the marriage was invalid.

[13]   In passing, I note that Saskatchewan is a jurisdiction that is often proactive in initiating important legislation. Thus, for example, in 2014 it enacted the Informal Public Appeals Act, S.S. 2014, c. I-9.0001. This Act later enabled the court to approve a scheme for the distribution of the large amount of money raised by public appeal in the aftermath of the tragic accident in which a number the Humboldt Broncos Hockey team were killed and others injured. The Act was based on the Uniform Public Appeals Act, promulgated by the Uniform Law Conference of Canada in 2011, for which see http://www.ulcc.ca/images/stories/2011_pdf_en/2011ulcc0011.pdf. See my earlier blogs on this site: http://welpartners.com/blog/2018/07/public-appeals/ and http://welpartners.com/blog/2018/08/public-appeals-update-on-the-humboldt-broncos-memorial-fund/. Incidentally, a working group of the Uniform Law Conference of Canada is currently considering a revision of the uniform act to incorporate crowdfunding, something that was not yet on the radar when the uniform act was passed originally.

[14]   Banton v. Banton, footnote 13, supra, para. 106.

[15]   Bill No. 175, s. 16.

[16]   Wills and Succession Act, S.A. 2010, c. W-12.2, s. 23(2)(a).

[17]   Wills, Estates and Succession Act, S.B.C. 2009, c. 13.

SCHEDULE

PREDATORY MARRIAGES PREVENTION ACT

Drafted by: Albert H. Oosterhoff, Professor Emeritus Faculty of Law Western University, Counsel, WEL Partners

11 September 2018 – Revised 12 April 2019

EXPLANATORY NOTES

Changing demographics have resulted in a significant increase in the senior population and it is expected that this trend will continue.

Today, seniors are housed mostly in retirement and nursing homes. This has increased the possibility and incidence of various abuses directed toward seniors.

This Act is directed toward the prevention of one particular kind of abuse, namely predatory marriages. Predatory marriages have occurred with increasing frequency in the last couple of decades. A “predatory marriage” is a marriage in which one person by one or more of guile, subterfuge, promises, undue influence, fraud, or pressure, persuades a second person to enter into marriage with the first person or with another person for the purpose of acquiring control of the assets of the second person during the latter’s lifetime and to that person’s estate after that person’s death. The second person often has limited capacity and is susceptible because of age and limited capacity to these kinds of influences. Such marriages deprive the second person’s legitimate heirs of their rightful inheritance and enrich the other person unjustly.

A number of cases have been reported on predatory marriages in the past quarter century. In dealing with them, the courts have been stymied by three issues:

(a) the very weak common law “definition” or “test” of capacity to marry;

(b) the inability of interested persons to contest the validity of a marriage in many cases;

(c) the statutory rule that provides for revocation of a will when a person marries; and

(d) the statutory right of a married person to make an equalizing claim against the estate of the other spouse under the Ontario Family Law Act and under similar legislation in other jurisdictions.

     This Act includes a strengthened statutory definition of marriage; enables interested persons to contest the validity of a marriage and to file a caveat to prevent the issuance of a marriage license and the solemnization of a marriage; and repeals the statutory rule that revokes a will on marriage. The latter rule has never formed part of the law of Quebec and was repealed in Alberta in 2012 and in British Columbia in 2014.

Section 7.5 derives from the British Columbia Marriage Act, ss. 23 and 24.

PREDATORY MARRIAGES PREVENTION ACT

  1. The Marriage Act, R.S.O. 1990, c. M.3, is amended by adding thereto to following sections:

7.1 A person has capacity to marry if the person is:

(a)  capable of understanding the nature of the contract of marriage, the rights it confers, and the obligations it imposes;

(b) capable of understanding the state of previous marriages, the relationship with his or her children, and the effect the marriage will have on the children and other heirs; and

(c)  able to take care of both his or her own person and property.

     7.2 A person lacks capacity to marry if he or she is unable to satisfy one or more of the criteria in section 7.1.

      7.3 (1) An issuer shall indicate on the prescribed form that the issuer is satisfied that the applicant has and, if both parties make the application, have capacity to marry under the provisions of s. 7.1.

(2) Any person solemnizing a marriage must satisfy himself or herself that the parties have capacity to marry under the provisions of s. 7.1 and complete the prescribed form to that effect.

7.4 (1) The following persons have standing to contest the validity of a marriage:

(a)  either party to the marriage;

(b) an attorney or guardian for property or personal care of a party to the marriage;

(c)  a child of a party to the marriage;

(d) the Public Guardian and Trustee; and

(e)  anyone with a financial interest.

       (2) Any of the persons mentioned in subsection (1) may contest the validity of a marriage on the ground of either or both lack of capacity of one of the parties as defined in s. 7.2, or the fact that the marriage was entered into as a result of undue influence, fraud, or duress exercised by the other party to the marriage or by any other person.

(3) Proceedings to contest the validity of a marriage for the circumstances described in subsection (2) may be brought by a party to the marriage while both parties are living, or by any other person mentioned in subsection (1) while either or both parties to the marriage are living or after the death of one or both of the parties.

(4) If the court finds that one or more of the grounds listed in subsection (2) is established, it shall declare the marriage void.

(5) If the court finds that none of grounds listed in subsection (2) is established, it shall declare the marriage valid.

7.5 If the court declares a marriage valid under subsection 7.4(5), but the sole or primary reason one party entered into the marriage, as determined by the court, was to obtain control of the other party’s property while both are living or after the other party’s death, or both, the marriage is valid, but the party who entered the marriage for the reasons stated is not entitled to the other party’s property under the other party’s will or intestacy, pursuant to an equalizing claim under the Family Law Act, or in any other way.

7.6 (1) On paying the prescribed fee, a person may lodge a caveat with an issuer of marriage licenses against the issuance of a license for the marriage of a person named in the caveat.

(2) If a caveat is lodged with the issuer, is signed by or on behalf of the person who lodged it, and states the person’s place of residence and the ground of the objection on which the caveat is founded, no marriage license may be issued by the issuer until:

(a) the issuer has inquired into the matter of the caveat and is satisfied that it ought not to prevent the issuing of the license; or

(b) the caveat is withdrawn by the person who lodged it.

  (3) If the issuer decides against the person lodging the caveat, that person may appeal, upon two clear days’ notice to the issuer, to the Divisional Court for judicial review under the Judicial Review Procedure Act.

  1. The Succession Law Reform Act, R.S.O. 1990, c. S.26 is amended by repealing the following provisions:

(a) Paragraph 15(a); and

(b) Section 16.

  1. This Act applies to:

(a) existing marriages unless a will has already been revoked by the marriage; and

(b) future marriages.

 

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