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Duress In Family and Estate Situations

Blom v Blom 2921 BCSC 181 set aside a separation agreement and gift letter on the basis of the common law remedy of duress.

 

The claimant also pleaded S 93 of the Family Law act .

Duress in a family law context has been considered in previous judgements.

In one case, Justice Brown usefully set out a definition of duress as follows (G.C.G. v. M.J.T., 2016 BCSC 1277):

Duress is a form of oppressive contractual conduce directed by one party towards another to compel them to act to their disadvantage, or, as Black’s Law Dictionary frames it: in a manner they otherwise would not. The underlying question in most cases … is whether the oppressor’s action vitiated the consent of the oppressed party.

The onus to prove duress lies with the party alleging it, in this case the respondent (Young v. Sherk, 2019 BCSC 312, at para. 84; citing Roberts v. Roberts, 2000 BCSC 611, at para.

As well, mere emotional difficulty or strain generally is insufficient to establish duress and to set aside a family agreement; (Young, at para. 85; citing A.B. v. T.R., 2013 BCSC 1798, at para. 19).

The context in which duress can arise has been discussed in other cases. For example, G.C.G. cited a previous decision from the Supreme Court of Canada as follows (G.C.G., at para. 108; citing Rick v. Brandsema, 2009 SCC 10, at para. 1):

This court has frequently recognized that negotiations following the disintegration of a spousal relationship take place in a uniquely difficult context. The reality of this singularly emotional negotiating environment means that special care must be taken that, to the extent possible, the assets of the former relationship are distributed through negotiations that are free from informational and psychological exploitation.

Brandsema also pointed out that bargains between spouses in a marriage breakdown “should not be seen to be, subject to the same rules as those applicable to commercial contracts negotiated between two parties of equal strength” (G.C.G., at para. 109; citing Brandsema, at para. 40).

As the above authorities point out, negotiations following separation ( or deaths) create a uniquely difficult context, one that is singularly emotional and where parties can be particularly vulnerable.

Special care is required to ensure that assets from the prior relationship are distributed free from any exploitation.

The circumstances of the signing of the separation agreement in Blom case involved a mother worried the father would alienate her from her children and they certainly give rise to those concerns.

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