Vancouver Estate Lawyer- Forced Marriages and Consent

Trevor Todd and Jackson Todd have over sixty years combined experience in handling estate matters including contested marriage like matters.

 

In Jaura v Jaura 2025 BCSC 503 534 court annulled a marriage where the purported wife did not consent to the marriage and was found to have been forced into going through with a marriage ceremony

 

Both families were affiliated with a religion based called group in India.

The claimant then aged 18 first spoke to the respondent than age 32, and within a week. He began pressing for marriage despite her objections under being under age.

 

Over several months, the respondent and his family pressured the claimant, citing religious blessings and threats of divine or community retribution if she refused.

 

After several months, the respondent and his relative took the claimant from work to a private home, provided her with a wedding outfit, and arrange the ceremony, attended only by his family. The claimant felt shocked, overwhelmed and manipulated throughout. The claimant immediately returned their her wedding ring, refused further contact, and the marriage was never consummated.

 

The claimant then applied for an order unknowing her marriage. In Canada, annulments are rarely granted, but may be granted where the claimant establishes that the formal requirements for marriage under the civil marriage act have not been met, for example, Jew to duress or lack of consent. In such cases the marriage will be deemed avoidable.

 

The court decided that the claimants will was overborne by the respondents coercion and in the circumstances of the ceremony, making her consent invalid in the marriage avoidable latter instance. Importantly, the court noted, at paragraph 24 of the decision that while necessary in the past, physical force is no longer required to make out duress. Duress will be made out where there is an absence of free choice, or oppression generated by fear, persuasion or pressure.

 

THE LAW

 

In Parihar v. Bhatti (1980), 17 R.F.L. (2d) 289, 1980 CanLII 362 (B.C.S.C.), this Court considered the case of a woman pressured into marriage by her own family. MacKinnon L.J.S.C. did not find the duress brought on by such pressure to be at the degree necessary to set aside the marriage:

There are many situations where families, or others, bring great persuasion upon a person to enter into marriage. However, the cases indicate that the duress sufficient to set aside the marriage must be of such a nature that her powers of volition were so affected that it really was no consent.

In Parojcic (Ivetic) v. Parojcic, [1959] 1 All E.R. 1 (P.D.A.) at 6, Davies J. states:

“I am quite satisfied and find that from and after Nov. 11, when this marriage was first mooted by the petitioner’s father at Victoria right up till Dec. 29, the subject was the cause of constant quarrels between them. The father was always insisting that the petitioner should marry the respondent and the petitioner was constantly refusing. On more than one occasion, as he himself admits, he threatened her that if she persisted in her refusal he would send her back to Yugoslavia. Whether he could have done so or not, both of them believed it was possible, and the threat not unnaturally after her past experience terrified the petitioner. She told her father that she would rather commit suicide than return to Yugoslavia. There is no doubt that during this period of six weeks the petitioner was very unhappy and constantly crying, as also as her mother who was equally opposed to the match. Finally on the day before the wedding her father hit her in the course of an argument about the matter, no doubt when he was telling her that she must go to Oxford on the following day. On this evidence, which I accept, there is no doubt that this young woman was terrified into obedience by her father who was almost a stranger to her after years of separation and who may well have been imbued with ideas of patria potestas which were fundamentally foreign to his daughter. In the words of Butt J. in Scott v. Sebright (1886), 12 P.D. 21 at p. 31:

‘… long before the ceremony was gone through the feelings of this young lady towards the respondent were such that of her free and unconstrained will she never would have married him; that she had been reduced by mental and bodily suffering to a state in which she was incapable of offering resistance to coercion and threats which in her normal condition she would have treated with the contempt she must have felt for the man who made use of them; and that, therefore, there never was any such consent on her part as the law requires for the making of a contract of marriage.’

“Every single word of that is applicable to the present case, except that in this case it was the father who exercised the duress on her. I am quite satisfied in accordance with that, and the other authorities, that this petitioner has shown that she never in fact consented to this marriage and she was driven to go through the ceremony by the terror instilled in her by the threats exercised and made to her by her father in the course of the six weeks preceding the marriage; indeed, the only six weeks of her life that she had spent in this country.”

In my opinion, the evidence here does not satisfy me the marriage ought to be declared null and void. There was no corroboration at all of the plaintiff’s allegations of fear. It may be that the alternative to her going through with the marriage would be most unpleasant for her but I do not consider that the facts presented to me justify the relief requested.

In that 1959 case of Parojcic, referenced in Parihar at para. 12, the Court found that duress was made out in respect of a young woman who, for her refusal to marry the respondent in that case, was physically beaten at the hands of her estranged father and threatened with transportation to a distant land.

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:

… 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.

The claimant described her emotional condition during this process in the following terms:

–         unable to comprehend what was going on;

–         stressed and overwhelmed;

–         in a state of shock; and

–         manipulated into a situation I didn’t fully understand.

Those in attendance consisted only of the respondent’s family. The claimant’s family was in no way included. She was alone and without any support of any kind.

The claimant deposed she is a Sikh, and that she and the respondent did not marry by way of the religious Sikh marriage ceremony known as the Anand Karaj involving the sacred Guru Granth Sahib. She deposed that she “cannot think of marrying someone without adherence to my Sikh faith.”

 

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Vancouver Estate Lawyer- Fraudulent Conveyances to Avoid Creditors

Trevor Todd and Jackson Todd have over sixty years combined experience in handling estate disputes including fraudulent conveyances.

 

In Weng v Fan 2026 BCSC 244 the court set aside a transfer of a mother’s only significant asset in a parcel of property to her son as a “gift” for $1 consideration as a fraudulent conveyance done to hinder, delay or avoid a claim by a creditor for about one million dollars.

The property was transferred after a claim was made against the defendant mother and prior to a judgment being made against her for one $million.

 

The Law

 

Section 1 of the FCA provides that a disposition of property “made to delay, hinder or defraud creditors and others of their just and lawful remedies … is void and of no effect against a person … whose rights and obligations are or might be disturbed, hindered, delayed or defrauded [by the conveyance], despite a pretence or other matter to the contrary”.

           The leading British Columbia authority on fraudulent conveyances is Abakhan & Associates Inc. v. Braydon Investments Ltd., 2009 BCCA 521 [Abakhan]. In Jasmur Holdings Ltd. v. Callaghan, 2019 BCSC 1966 [Jasmur] at para. 17, Justice Giaschi set out the following principles that may be derived from Abakhan:

[17]      …

  1. a)The FCAis to be construed liberally (para. 62);
  2. b)An intent to put one’s assets beyond the reach of creditors is all that is required to void a transaction (para. 73);
  3. c)A dishonest intent or mala fidesis not a necessary element to avoid a transaction under s. 1 of the FCA (para. 65);
  4. d)Intent is a state of mind and a question of fact (para. 74);
  5. e)Intent can be proven by direct evidence of the transferor’s intent as well as by inferences from the transferor’s conduct, the effect of the transfer and other circumstances (para. 80);
  6. f)Where a transfer of property has the effect of delaying, hindering or defeating creditors, the necessary intent is presumed (paras. 58–59 and 75);
  7. g)Inadequate consideration paid for the transferred property may be indicative of fraudulent intent (para. 76);
  8. h)It is not necessary to show the transferor was insolvent at the time of the transfer (para. 60);
  9. i)It is not necessary for the applicant to show that he or she was a creditor at the time of the transfer. Future creditors are also protected (paras. 78 and 87); and
  10. j)It is no defence that the transfer was also in furtherance of a legitimate business objective (paras. 84–85).

Further, the law imposes on a defendant an evidentiary duty to rebut prima facie suspicious circumstances, referred to in the jurisprudence as “badges of fraud.” Where one or more such badges of fraud exist, the requisite fraudulent intent is presumed: Kootenay Savings Credit Union v. Brar, 2021 BCSC 2027 at para. 39.

In Prima Technology Inc. v. Yang, 2018 BCSC 94 [Prima Technology] at para. 23, the Court, citing the decision in Banton v. Westcoast Landfill Diversion Corp., 2004 BCCA 293, listed the following indicia of fraudulent intent:

[23]      …

  1. a)the state of the debtor’s financial affairs at the time of the transaction, including his income, assets and debts;
  2. b)the relationship between the parties to the transfer;
  3. c)the effect of the disposition on the assets of the debtor, i.e. whether the transfer effectively divests the debtor of a substantial portion or all of his assets;
  4. d)evidence of haste in making the disposition;
  5. e)the timing of the transfer relative to notice of debts or claims against the debtor; and

f)      whether the transferee gave valuable consideration of the transfer.

 

Section 2 of the FCA provides:

Application of Act

2 This Act does not apply to a disposition of property for good consideration and in good faith lawfully transferred to a person who, at the time of the transfer, has no notice or knowledge of collusion or fraud.

[Emphasis added.]

In Chan v. Stanwood, 2002 BCCA 474, the Court held:

[20]      … Where the consideration is inadequate or nominal, a creditor need only show that the transferor intended to delay, hinder or defraud the creditor of his remedies. Where on the other hand valuable consideration has passed, the creditor must also show that the transferee actively participated in the fraud.

With respect to the defendant’s assertion that the plaintiff’s claim was barred by the statute of limitation the court stated :

Under s. 8 of the present Act, a claimant should not be deemed to have discovered that they have suffered a loss due to a fraudulent conveyance of property until their claim to that property is established as a result of a judgment.

In the case at bar, judgment in the underlying action was pronounced on February 12, 2024, and this action was commenced on February 26, 2024. The claim was therefore filed well within the two-year limitation period and the defendants’ limitation defence is dismissed

Vancouver Estate Lawyer – Wills Variation – Executor Removed For Cause

Executor Removed For Cause

Trevor Todd and Jackson Todd have over sixty years combined experience in resolving estate disputes including the removal and substitution of a new executor.

Re  Rawji Estate 2023 BCSC 1652 is a good case exemplifying when the court will remove and substitute an executor for inter alia conflict of interest and other serious factors. The case also carefully reviews the duties of an executor.

The facts involve an application to remove the executor of an extremely acrimonious family that involved many days of court. The court found there were at least five reasons to remove the executor,

  •  his extreme animus to one of the beneficiaries,
  • a debt owing by the executor to the estate,
  • the fact that the executor sued the estate when that is contrary to the rule of the executor must remain neutral,
  • a finding that he jeopardized estate assets
  • an inability for him to move the estate administration forward.

The court provided a detailed explanation about each of the five reasons to remove the executor and provided caselaw to support each area.

The will itself divided the estate assets equally amongst the children which normally does not give rise to an application to remove an executor.

THE LAW

It is settled law that the primary duty of an executor is to preserve the estate assets, pay the debts, and distribute the balance to the beneficiaries under the will or in accordance with any order varying the will. An executor should not pick sides between beneficiaries and should be indifferent as to how the estate is to be divided: Kolic Estate (Re), 2016 BCSC 1312 at paras. 25-26. That said, pre-existing hostility between an executor and one or more of the beneficiaries does not necessarily disqualify the executor from performing his or her duties, so long as the executor is capable of setting aside that hostility with a view to the interests of all the beneficiaries: Ali v. Walters Estate, 2018 BCSC 1032 at paras. 104-106.         Section 158 of the Wills, Estates and Succession Act. S.B.C. 2009, c. 13 [WESA] provides that the court may remove the personal representative of an estate if the court considers that the personal representative should not continue in office. The authority to remove an executor is also found in the inherent jurisdiction of the court: McKay v. Howlett, 2003 BCCA 555 at para. 17.

[34]         As set out in Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37, the court’s decision to remove an executor should be guided by a consideration of the following factors:

  1. The court will not lightly interfere with the testator’s choice of estate trustee and clear evidence of necessity is required;
  2. removal of an executor should only occur “on the clearest of evidence that there is no other course to follow”;
  3. The court’s main consideration is the welfare of the beneficiaries; and
  4. The estate’s trustee’s acts or omissions must be of such a nature as to endanger the administration of the estate.

In deciding whether to remove a trustee, the court’s main guide should be the welfare of the beneficiaries. The question is whether the estate is likely to be administered properly in accordance with the fiduciary duties of the trustee and with due regard to the interests and welfare of the beneficiaries: Parker at para. 40.

An administrator must act with detachment, even-handedness and without animosity: Berlinguette Estate (Re), 2022 BCSC 1098 at paras. 19, 28-30; Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15. The court has jurisdiction to remove an executor when there is evidence the executor has acted in a manner that endangers the estate or, as executor, has acted dishonestly, without proper care, or without reasonable fidelity. As set out in Kyle Estate v. Kyle, 2016 BCSC 855 at para. 88, reasons for removal may include a “lack of neutrality, failure to disclose estate information or other misconduct including treating one or more of the beneficiaries with hostility.”

While mere dissension or friction with the beneficiaries is not of itself a reason for the removal of the executor, where the hostility is grounded on the mode in which the estate has been administered, it is not to be disregarded: Conroy v. Stokes, [1952] 4 D.L.R. 124, 1952 CanLII 227 (BCCA); Dunsdon v. Dunsdon, 2012 BCSC 1274 at para. 202. In circumstances where animosity hampers the proper administration of the estate, a finding of wrongdoing is not necessary in order to remove the executor: Dunsdon at para. 202; Weisstock v. Weisstock, 2019 BCSC 517 at para. 44.        While actual dishonesty, lack of proper capacity to execute his or her duties, or lack of reasonable fidelity are all bases for removing a trustee, even the lesser basis of a trustee’s inability to act impartially may suffice to justify their removal: Parker at para. 39. Further, where an administrator acts in a manner that frustrates the investigation and identification of estate assets that endangers estate property, in an attempt to benefit some beneficiaries at the expense of others, the administrator must be removed: Pangalia Estate, 2021 BCSC 1070 at para. 40.

An executor should remain neutral in administering the wishes of the testator. By involving oneself in a will variation proceeding, an executor offends that principle of neutrality by pursuing a personal interest which conflicts with the impartial role as executor. In Yeh Estate (Re), 2016 BCSC 1550, Justice Williams expressed the conflict as follows:

[17] The main consideration in whether to exercise that discretion is the welfare of the beneficiaries: Thomasson Estate (Re), 2011 BCSC 481, at para. 22. Even a “perceived” conflict of interest between an executor’s personal interests and her duty to act in the interests of the beneficiaries of the will can be sufficient to warrant her removal: Ching Estate (Re), 2016 BCSC 1111, at para. 22.

[18] The respondent’s essential position here is that the will should not be enforced as it reads on its face—that is, that the deceased’s interest in the Property (as it was prior to the transfers) should not pass to the petitioners.

[19] That puts the respondent in a fundamental conflict of interest. Her position in this dispute (certainly as regards the Property) is squarely at odds with her role as executor to administer the will.