Once elder abuse is reported or discovered, there are at least two avenues that can be followed in pursuit of a remedy: a criminal proceeding (i.e., where an individual is prosecuted under the Criminal Code[1] by the Crown) and/or a civil proceeding in court (i.e., lawsuits between private parties)

Criminal Remedies

In some cases, the police may decline to investigate financial abuse because the issue appears not to be criminal in nature.

There are a couple of Criminal Code charges that could specifically relate to predatory marriage

Procuring feigned marriage

292 (1) Every person who procures or knowingly aids in procuring a feigned marriage[2] between themselves and another person is guilty of

(a)  an indictable offence and liable to imprisonment for a term of not more than five years; or

(b)  an offence punishable on summary conviction.

(2) No person shall be convicted of an offence under this section on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.

Forced marriage

293.1 Every person who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is marrying against their will is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

However, case law addressing section 292[3] and 293.1[4] is extremely sparse; officers may be unaware of the provisions or unsure of when it is appropriate to charge someone under them.

While the Criminal Code does not provide for the specific offence of “elder abuse”, or “financial abuse” there are in fact certain offences under which such a perpetrator could be charged. One or more of these charges may apply an abuser’s actions within a predatory marriage.

There have been an increasing number of cases dealing with convictions under
section 215 of the Criminal Code, being the provision for criminal neglect (i.e., failure to provide the necessaries of life).[5] These cases show how neglect and financial abuse can go hand-in-hand.

CRIMINAL CODE OFFENCES AND THE “CRIME” OF ELDER ABUSE

• Section 215: failing to provide the necessaries of life
  (i.e., criminal neglect)
• Section 220: causing death by criminal negligence
  (i.e., where neglect leads to death of older adult)
• Section 264.1: uttering threats
• Sections 265 and 266: physical assault
• Section 271: sexual assault
• Section 279: unlawful confinement
• Section 322: theft
• Section 331: theft by a person holding power of attorney
• Section 336: criminal breach of trust (i.e., conversion by trustee)
• Section 342: theft or forgery of a credit card
• Section 346: extortion
• Section 366: forgery
• Sections 386 – 388: fraud
• Section 423: intimidation

Section 718 of the Criminal Code, a sentencing provision introduced in 2013, provides our courts with additional factors that can be considered to increase the severity of sentencing, such as where the victims of these crimes are older and vulnerable. Furthermore, section 718 references a wide range of aggravating factors that can be considered by the court in determining appropriate sentencing principles. For example, longer sentences are warranted if the crime was motivated by age or disability and evidence exists that the offender abused a position of trust or authority in relation to the victim.

In 2015, the Canadian Victims Bill of Rights[6] came into force. This Bill provides clear rights for victims of crime, including the right to information, participation, protection, and restitution. Some examples of victim’s rights include receiving information about the review of an offender’s conditional release, timing and conditions of that release, and providing a current photo of the offender prior to release.

Civil Remedies

While criminal prosecution is a possibility in the context of elder abuse, prosecution is not always in the public interest, for a variety of reasons:

• the victim may be reluctant to cooperate in a prosecution of a loved one, especially where the abuser is the only significant support or social connection in the victim’s life;
• the victim may be in poor health or have deteriorating capacity; and/or,
• the victim may die before the case goes to trial.

Financial abuse of older adults does not always attract criminal charges. A victim may be unable or unwilling to report the perpetrator to the police. This is especially true in circumstances where the perpetrator is a loved one, or the older adult relies on the perpetrator for care and needed assistance.

While anyone can commence a civil action (as opposed to relying on the Crown to pursue criminal charges), there are still many barriers to overcome in order to achieve justice for victims in civil courts. Civil remedies are only available to those who can afford this costly process. Hiring a lawyer is expensive. Civil litigation can also potentially take many years, which poses a practical problem for an older adult who may not have the luxury of time. In certain situations, if the abuse meets elements an offence in the Criminal Code, criminal charges may be more appropriate than civil litigation.

Civil remedies are mainly about restitution, unlike criminal law. Restitution means that the Courts try to place the victim back into the position they would have been in if the abuse never happened. In other words, the perpetrator would be ordered to return the money or property they took and compensate the victim for their legal fees. While there may well be some element of restitution in criminal cases, punitive measures like jail or probation are more central, and a sentence may not compensate the victim or return their property. Although restitution is a central concept in civil remedies, civil courts can also do more than order the perpetrator to pay the victim. In some civil decisions, courts have signaled their willingness to order custodial sentences where necessary, especially in breach of trust cases. Another remedy, available when a perpetrator wrongfully assume control of property like real estate or a bank account, is for a civil court is to make a “declaration” that the property beneficially belongs to the older adult.

In a civil court proceeding, the plaintiff (i.e., the older adult/victim) must use evidence to prove on a “balance of probabilities” that the perpetrator caused them harm. Proving something on a balance of probabilities means showing the Court that it’s more likely than not that that thing is true. In contrast, in a criminal proceeding the Crown must prove “beyond a reasonable doubt” that a given offence happened. This difference in evidentiary requirement is one way to determine which remedial route would be more appropriate: if the evidence cannot prove “beyond a reasonable doubt” that a crime occurred, then the civil route with the lower standard (on a balance of probabilities), may be more suitable.

Lawyers practicing civil litigation often see “inadvertent” transfers of assets, meaning, the transfer of money, real property (e.g., houses, land, condos, cottages), property rights, or beneficial rights, by a vulnerable adult to another person. Some ways this happens is through an outright transfer, a transfer of property into joint names, or a “miscommunication” over whether something is a loan or a gift. An abuser may also obtain rights to a vulnerable adult’s property through a predatory marriage. For example, if an older person who cannot manage their own finances anymore gets married to an abuser and then dies without a will, the abuser may get some or all of the older person’s property. Below are three civil remedies.

“Set Aside” a Transfer of Title or a Joint Name added to a Bank Account

A civil remedy that is available in some circumstances, is to ‘set aside’ a transfer of title. Transfers of title may concern real property (like a house or a farm) or personal property (like a bank account).

Older adults may transfer real estate property into a joint tenancy with their new spouse (or another person- you don’t need to be married to do this!). Sometimes, this is a planning technique used to avoid tax and fees, on the theory that title to the property will automatically transfer to the new spouse when the older adult dies.

Older adults may also add their new spouses jointly to their bank accounts to permit the spouse to assist them with bill payments and other financial matters. Joint bank accounts with “rights of survivorship” are also used as an estate planning tool by individuals who wish to avoid paying probate taxes and/or fees of professionals who draft Wills. “Rights of survivorship” mean that when one joint owner dies, the entire asset is now owned by the surviving owner.

Obtaining “rights of survivorship” on a joint bank account can be as simple as checking off a box on the application form. The consequences are more complicated, even in the absence of a predatory relationship. Here is an example of possibly unintended rights of survivorship:

Lou has three children, Ash, Sue and Naz. Lou has a good relationship with all her children. Lou opens a joint account with one of her adult children, Ash. Lou keeps all her savings in the joint account. Unknown to Lou, the joint bank account is set up with rights of survivorship. Lou dies a year later and Ash is the sole owner of the account. Ash says all of the money is rightfully his because, “That’s what Mom wanted.” The other children, Sue and Naz, cry foul and contend “No, Mom wanted the money to be split between all her children.” This is where the lawyers come in. If the court finds it appropriate, they can declare that the bank account belonged solely to Lou and order Ash to return any money he took from the account.

Restitution (Unjust Enrichment/Constructive Trust/Resulting Trust)

A court can declare that although the abuser may have “legal” title to property, the “beneficial” title belongs to the older adult. In other words, while the name on the property is that of the abuser, the property really belongs to the older adult.

This may occur where an abuser has been “unjustly enriched”. An abuser has been unjustly enriched where a benefit has been given to them (i.e., the older adult made payments on the abuser’s mortgage, or made the abuser a joint tenant on title), to the detriment of the older adult and there is no lawful reason for it to have happened.[7] If the court finds that the abuser has been unjustly enriched, then the court can order that money be paid back to the older adult, or order that the property the abuser holds is being held “in trust” for the older adult.

Another type of trust which can be ordered in favour of older adult victims is a “resulting trust”. Often, property or bank accounts will be transferred gratuitously from an older adult to an adult child so that the child may assist them with the management of property and/or banking. In 2007, the Supreme Court of Canada held that when a gratuitous transfer of this nature is made to an adult child, there will be a presumption that the child holds the property/money in/on trust for the parent.[8] This is because the law presumes bargains, not gifts. In other words, while title to a property/asset is given to a fiduciary/child gratuitously, the law presumes that the intention of the transfer was to have the recipient hold the property/asset for some time and use it for the transferor’s benefit. This presumption is rebuttable if the transfer can be shown to have been intended to be a gift. The following is a general example to illustrate:

Lou adds one of her adult children, Ash, as a joint owner to her bank account so that Ash can help manage her finances. As joint owners, Lou and Ash now both have title of the bank account. Legally, it is both of theirs. A month later, Lou gets a letter from the bank informing her of an overdraft payment. Despite her substantial savings, her bank account now has insufficient funds. Lou goes to the bank and learns that Ash withdrew all of the money from the joint bank account. A civil court will assume that Lou was not giving Ash all of her savings as a gift. The court will assume that the joint account was a resulting trust. Ash can try to argue that Lou was giving him the money to use as he saw fit, but unless he can prove that on a balance of probabilities, the court will declare that the account was a resulting trust with Lou as the beneficiary.

The above example seems straight forward, but litigation is more complicated when the older adult is no longer alive and/or able to testify about what their intentions were.

Setting Aside or Declaring a Predatory Marriage as “Void”

As discussed in previous blogs, marriage brings with it a wide range of property and financial entitlements. An overriding problem with predatory marriages is that they are not easily challenged at common law. Recent cases indicate that success in righting this type of wrong depends on the existence of sufficient, compelling medical evidence of incapacity.

Traditionally, one might argue that the older adult did not have the requisite capacity to enter into the marriage. However, the older adult will likely be considered capable of marriage if they can appreciate the nature and effect of the marriage contract, including the responsibilities of the relationship, the state of previous marriages, and the effect on one’s children. Also, they might be required to have the requisite capacity to manage property and make personal care decisions.

Historically, case law has developed with the understanding that marriage is a simple task, not requiring a high degree of intelligence. If that is the criterion, then it is increasingly easy to have the capacity to marry. Courts therefore often find that an older adult was capable even in the most obvious cases of exploitation.[9]

The materials of this blob post have been adapted in part from WEL Partner’s training materials for the Ontario Police College course: Investigations Involving Older Adults April 15, 2025.

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[1] Criminal Code, RSC 1985, c.C-46.

[2] Possible examples of a feigned marriage include immigration marriage fraud or ‘faked’ marriages (e.g., California (State) v. X. 1924 CarswellBC 24, [1924] 2 W.W.R. 209, 33 B.C.R. 555)

[3] R. v. Sylvestre 2006 CarswellOnt 7069, 2006 ONCJ 412, [2006] O.J. No. 5382, 71 W.C.B. (2d) 767; Berchid v. Canada (Citizenship and Immigration), 2003 FCT 186 (CanLII), <https://canlii.ca/t/21w8l>; R. v. Lee 1998 CarswellOnt 2252; for more on corroboration see also R. v. Thind, 2018 ONSC 1607 (CanLII), <https://canlii.ca/t/hrlxk>, at 76-85; R. v. Khela, 2009 SCC 4 (CanLII), [2009] 1 SCR 104, <https://canlii.ca/t/2260t>, at 2

[4] Abuelgasim and Canada (Minister of Citizenship and Immigration), Re 2022 CarswellNat 1333, 2022 CarswellNat 1334, at 10

[5] E.g., R v Davy, 2015 CanLII 10885

[6] Canadian Victims Bill of Rights, SC 2015, c 13, s 2.

[7] See Garland v Consumers’ Gas Co, 2004 SCC 25, at para 50 and Kerr v Baranow, 2011 SCC 10.

[8] Pecore v Pecore, [2007] 1 SCR 795.

[9] For more information on predatory marriages see: Kimberly A. Whaley and Albert H Oosterhoff, “Predatory Marriages”, Law Society of Ontario, Six-Minute Lawyer, 2018, online: WEL Partners <http://welpartners.com/resources/WEL-six-minute-estates-lawyer-predatory-marriages-2018.pdf>; Kimberly Whaley et al, Capacity to Marry and the Estate Plan, (Aurora: Canada Law Book, 2010); Albert H. Oosterhoff, “Predatory Marriages” (2013) 33 ETPJ 24, Kimberly Whaley and Albert H Oosterhoff, “Predatory Marriages – Equitable Remedies” (2014), 34 ETPJ 269.