Vancouver Estate Lawyer- Voiding a Forced Marriage

Trevor Todd md Jackson Todd have over sixty years of estate experience including dealing with forced marriages in estate situations.

 

In Jaura v Jaura 2025 BCSC 503 a young woman succeeded in annulling a marriage that she did not want and was forced to enter.

The court reversed a previous English decision from 1959 called Parojcic v Parokcic 1 All E.R. 1 where the court found that the use of force, terrorization and threats were no longer the threshold that must be met in order to vitiate consent to marry.

In S.(A.) v. S.(A.) (U.F.C.), [1988] O.J. No. 1407, 1988 CanLII 4713 (O.N.S.C.), the Ontario Unified Family Court held, quite rightly in my view, that duress is made out where there is an absence of free choice, or oppression generated by fear, persuasion, or pressure:

A valid marriage is grounded upon the consent of each party. Oppression may vitiate consent, and if there is no consent, there is no valid marriage. Different people may respond to oppression in different ways, and conduct that may overmaster the mind of one person may not have this impact upon the mind of another. It matters not, therefore, whether the will of a person of reasonable fortitude would – or would not – have been overborne: the issue is, rather, the state of mind of the applicant. To constitute duress, it must be established that the applicant’s mind was so overcome by oppression that there was an absence of free choice. The point that falls for decision is whether the consent given at the time of the ceremony was a real, understanding, and voluntary consent. Oppression can take various forms: it may be generated by fear, or by persuasion or pressure. Essentially, the matter is one of degree, and this raises a question of fact for the court. The determination involves a consideration of all relevant circumstances, including the age of the applicant, the maturity of the applicant, the applicant’s emotional state and vulnerability, the lapse of time between the conduct alleged as duress and the marriage ceremony, whether the marriage was consummated, whether the parties resided together as man and wife, and, the lapse of time between the marriage ceremony and the institution of the annulment proceeding. As long as the oppression affects the mind of the applicant in the fashion stated, physical force is not required, and, no more so, is the threat of such force a necessary ingredient. Nor is the source of the conduct material. Where duress is alleged, the onus of proof is upon the party seeking annulment, and it is an onus that is not lightly discharged.
These principles have been adopted in more recent decisions by this Court. In R.H. v. R.T., 2011 BCSC 678, for instance, Justice Maisonville set out the factors to be examined to determine if a claimant’s mind was so overborne by pressure to constitute duress vitiating the consent to marriage:
[28] … Oppression can take many forms and the matter is one of degree which is a question of fact for the court. The circumstances to be considered in the assessment include:
• the party’s emotional state at the time of the marriage ceremony,
• the party’s vulnerability,
• the time between the alleged coercive conduct and the marriage ceremony,
• whether marriage was consummated,
• the residence of the parties during the marriage,
• the amount of time until the start of the annulment proceedings.
[29] However, the most important consideration for the court when considering an annulment on the basis of duress is the parties’ emotional state at the time of the marriage ceremony. If the parties are mentally competent to give consent even if they may be reluctant and feel pressured, this is not sufficient ground to grant an annulment on the basis of duress. The emotional state must completely overbear the will to consent, however reluctant or hesitant the party may be.
[Emphasis in original.]
In Kaur v. Jhamb, 2019 BCSC 67, the Court granted an annulment of a sham marriage entered into solely for immigration purposes. In that case, the claimant agreed to participate in the sham because of the threat of losing her job. That threat was sufficient for the Court to find her participation in the civil marriage ceremony to be under duress.

Vancouver Estate Lawyer- Special Costs 2025

Trevor Todd and Jackson Todd have over 60 years experience in handling estate disputes including special costs where warranted.

 

Special costs are awarded by the court as a form of punitive costs where a party ahs been found to have acted with reprehensible conduct that deserves rebuke.

Parker Cove Properties Limited Partnership v. Gerow, 2024 BCCA 316, the BC  Court of Appeal stated:

The test for granting special costs is set out in Smithies Holdings v RCV Holdings Ltd 2017 BCCA 177at paras. 56–57:

…

[57]      The leading authority on special costs is this Court’s decision in Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.). There the Court, set out that the threshold for special cost awards is “reprehensible conduct”. He noted the continuum of circumstances in which special costs could be awarded, ranging from “milder forms of misconduct deserving of reproof or rebuke” to “scandalous or outrageous conduct”:

Having regard to the terminology adopted  in Young v. Young, [[1993] 4 S.C.R. 3], to the terminology adopted  in Fullerton v. Matsqui [(District)(1992), 74 B.C.L.R. (2d) 311 (C.A.)],  and to the application of the standard of “reprehensible conduct”  in Leung v. Leung [(1993), 77 B.C.L.R. (2d) 314 (S.C.)] in awarding special costs in circumstances where he had explicitly found that the conduct in question was neither scandalous nor outrageous, but could only be categorized as one of the “milder forms of misconduct” which could simply be said to be “deserving of reproof or rebuke”, it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”.

In Leung v. Leung, the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke. Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

As may be seen, the focus is upon whether the conduct in question may “be categorized as ‘reprehensible’”.

Hu v. Dickson, 2015 BCSC 218,  provided a useful review regarding the characterization of reprehensible conduct:

Special costs are awarded where a party’s litigation conduct can be characterized as “reprehensible”. In this context the word reprehensible encompasses both scandalous and outrageous conduct and also milder forms of misconduct deserving of reproof or rebuke: Garcia, para. 17. This does not mean that all forms of misconduct justify a special costs order – rather, the misconduct must be such as to be deserving of reproof or rebuke: Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352 at paras. 32 and 73.

The purpose for this high level of costs is punitive and intended to express the court’s disapproval of the party’s conduct. It is not necessary that all aspects of a party’s conduct in the litigation be reprehensible in order to make an award of special costs that applies to the entire action: Bradshaw v. Stenner, 2012 BCSC 237 at para. 9, leave to appeal ref’d 2012 BCCA 481. However, pursuant to Rule 16‑1(14) of the Supreme Court Family Rules, the court has the discretion to award costs that relate to only certain aspects of a proceeding and may do so where it would be disproportionate to award special costs of the entire proceeding: Gichuru v. Smith, 2014 BCCA 414], para. 91.

The court must exercise restraint in awarding special costs and as such the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order: Westsea, para. 73.

In Kim v. Hong, 2013 BCSC 2248, Justice Griffin quoted extensively from the judgment  in Schwabe v. Dr. Lisinski, 2005 BCSC 1284, where he summarized a number of cases in an effort to discern the kinds of conduct that had been characterized as reprehensible and thus warranting an award of special costs. Justice Griffin also categorized the conduct that had been found to justify an award of special costs in a number of family cases.

From her reasons, it is apparent that the kinds of conduct that warrant an award of special costs include the following:

  • acting with an improper motive, such as to intimidate, exhaust or financially drain the other party in the hopes that they will give up or soften their position in the litigation;
  • dissipating and/or not disclosing assets;
  • abusing the court’s process by, among other things, failing to disclose documents, delaying in disclosing documents, failing to respond to reasonable requests, causing unnecessary interlocutory applications, and breaching the Rules of Court in a manner that prejudices the other party;
  • misleading the court, through outright fabrications or through evasive and/or equivocal responses; and
  • disobeying a court order.

 

Vancouver Estate Lawyer- Removal or Passing Over an Executor

Trevor Todd and Jackson Todd have over 60 years experience in estate litigation including the removal or passing over of an executor.

 

In Re Virdi Estate 2025 BCSC 680 an executor who had a claim against the same estate was passed over due to his conflict of interest and replaced by another person.

The executor’s claim of just  less than $300,000 pursuant to a promissory note would be made against the estate which he was executor and thus placed the executor in a conflict of interest requiring his passing over and substituting of another executor.

 

                The Law

[32]         The court has the authority to remove or pass over an executor and trustee and appoint a substitute personal representative pursuant to ss. 158 and 159 of WESA, s. 31 of the Trustee Act, R.S.B.C. 1996 c. 464, and its inherent jurisdiction: Burke v. Burke, 2019 BCSC 383 at para. 31, citing Mardesic v. Vukovich Estate (1988), 30 B.C.L.R. (2d) 170 (S.C.), 1988 CanLII 3125; Thomasson Estate (Re), 2011 BCSC 481 at para. 19.

[33]         The portions of s. 158, relevant to this hearing are:

s. 158(1) In this section, “pass over” means to grant probate or administration to a person who has less priority than another person to become a personal representative. …

(3) Subject to the terms of a will, if any, and to subsection (3.1), the court, by order, may remove or pass over a person otherwise entitled to be or to become a personal representative if the court considers that the personal representative or person entitled to become the personal representative should not continue in office or be granted probate or administration, including, without limitation, if the personal representative or person entitled to become the personal representative, as the case may be, …

(f) is

(i) unable to make the decisions necessary to discharge the office of personal representative,

to an extent that the conduct of the personal representative hampers the efficient administration of the estate, or …

(4) An order of the court removing a personal representative does not remove that person as a trustee. …

[34]         Section 159 of WESA states that the court must appoint a substitute personal representative where the Court has discharged or removed an executor, unless certain exceptions apply. The court may also concurrently appoint the substitute person as a trustee under the Trustee Act in place of the trustee being discharged or removed.

[35]         Section 31 of the Trustee Act states:

If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.

[36]         In Parker v Thompson (Trustee), 2014 BCSC 1916, at para. 37–38, Chief Justice Hinkson adopted the following summary of guiding principles from Haines v. Haines, 2012 ONSC 1816 at para. 10, pertaining to the removal of an estate trustee:

(1) the court will not lightly interfere with the testator’s choice of estate trustee;

(2) clear evidence of necessity is required;

(3) the court’s main consideration is the welfare of the beneficiaries; and

(4) the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.

[37]         As summarized in Dunsdon v. Dunsdon, 2012 BCSC 1274 at para. 202:

[202] Put broadly, a trustee may be removed where his or her acts or omissions endanger the trust property or demonstrate a want of honesty, of reasonable fidelity, or of the proper capacity to execute the duties of office:  Conroy v. Stokes 1952 CanLII 227 (BC CA), [1952] 4 D.L.R. 124 (B.C.C.A.). The existence of friction between the trustee and one or more beneficiaries is usually not sufficient, of itself, to justify removal of the trustee: Erlichman v. Erlichman, 2000 BCSC 173; Re Blitz Estate, 2000 BCSC 1596. However, where there is dissension among the trustees themselves by which the trust administration grinds to a standstill or otherwise hampers the proper administration, the courts tend to remove one or more of them. In those instances, misconduct per se is not an essential prerequisite: Re Consiglio Trusts (No. 1) (1973), 1973 CanLII 681 (ON CA), 36 D.L.R. (3d) 658 (Ont. C.A.); Wilson v. Heathcote, 2009 BCSC 554.

[38]         An executor and trustee may be removed or passed over when there is an actual or perceived conflict between their duties as executor and trustee, and their personal interests: Re Ching Estate, 2016 BCSC 1111 at paras. 21–22; Thomasson Estate (Re), 2011 BCSC 481 at para. 23. However, not every actual or perceived conflict of interest necessarily leads to disqualification. Each case turns on its own facts: Burke at para. 43; Hoggan v. Silvey, 2021 BCSC 971 at para. 16, rev’d on other grounds 2022 BCCA 176.

[39]         The fact that an executor asserts that they are a creditor of the estate will not automatically disqualify them from acting as executor; it will only do so where the actual or potential conflict of interest rises to the level of a “disqualifying conflict of interest”: Oates v. Baker Estate, 1993 CanLII 1921 (BC SC), [1993] B.C.J. No. 1293; Bringeland Estate (Re), 2024 BCSC 1546 at paras. 61–64.

[40]         In Bringeland Estate (Re), at para. 72, Justice Stephens set out the following non-exhaustive list of factors the Court should consider in determining whether an executor’s claim on the estate as a creditor is a disqualifying conflict of interest:

(a) has the executor been reasonably transparent about the existence of their claim?;

(b) whether the claim has been quantified by the executor, and the size of their asserted claim if it has been quantified (Brown Estate at para. 22)?;

(c) if not quantified, is there a reasonable explanation for the executor not doing so?;

(d) the passage of time, and the existence of any delay (Kara Estate (Re), 2022 BCSC 923 at para. 24)?;

(e) whether the other beneficiaries oppose the executor continuing despite the executor’s claim?;

(f) whether the executor’s pre-death loan claim creates a legitimate and reasonably held distrust on the part of a beneficiary in the executor’s impartiality?;

(g) whether the asserted pre-death loan endangers the administration of the estate into the future?; and

(h) whether the executor’s conduct with respect to the asserted pre-death loan hampers the efficient administration of the estate (Wills, Estates and Succession Act, S.B.C. 2009, c. 13, s. 158(3)(f) [WESA])?