New protections against Predatory marriages
According to this article in the Financial Post, a significant increase in wealth will transfer from parents to the next generation over the upcoming decade.
This also means that the current aging population owns a disproportionate share of wealth compared to younger generations. As always, when wealth accumulates somewhere, risk of theft, fraud, or otherwise abusive behaviour increases. As I wrote before in my blog post “Losing Legal Capacity”, senior abuse is becoming more and more of an issue.
Family members are the usual culprits
While family members are usually the ones responsible for abuse as they know the vulnerable person’s affairs and they usually assist when the individual in question becomes vulnerable. Increasingly, non related people are taking advantage of wealthy people who are either lonely, or starting to lose touch with reality.
No protections for individuals who maintain capacity
I experienced one situation where a complete stranger started asking an aging vulnerable male for assistance. He asked for money. The older gentleman, either out of a sense of duty or just because he couldn’t say no, starting giving him some. The young man’s requests increased in frequency and amounts. He became so bold that he accompanied the older individual to the bank. Despite the bank’s staff reluctance to help, they had no choice. The older man still had legal capacity and it was his money. He could do as he wished with it.
Bank staff would check to ensure the older man was not under pressure when he attended the bank alone. He was adamant that he was giving the money out on his own free will. In the end, while the staff at the bank could run interference, there was nothing they could do. And herein lies the problem. How do you protect individuals who do not lack capacity? The short answer is that you can’t. Our legal system is based on the principle that we are free and autonomous. As long as we don’t break any laws, we can do as we want.
Another increasing area of abuse is the practice where individuals seek out vulnerable people and, not only befriend them, but work to develop a romantic relationship with a view of marriage. As in the example above, if the person maintains capacity, not much can be done to prevent someone from falling victim to this type of abuse.
However, if the person lacks capacity – for example, showing signs of dementia – courts can intervene and declare a marriage void. This exact situation occurred recently in Ontario. You can read the article from the Toronto Star here; or if you prefer, you can read the court decision here
Hunt v Worried
A wealthy landscape business owner injured himself following a terrible ATV accident. He suffered catastrophic brain damage following an 18 day coma. Despite considerable therapy, his IQ fell below the 1st percentile. His brained atrophied. His psychiatrist explained that, as a result of his injuries, he became malleable and easily influenced by emotional stimulation and sexual relations.
Upon learning of his injuries, his ex-girlfriend made arrangements to marry him within days of his discharge from hospital. The man’s sons knew nothing of this and upon discovering his disappearance, called the police. The police found the man in the hotel where he and his ex-girlfriend had been married hours earlier.
The sons applied to court to have the marriage declared null and void. After considerable testimony and what I can only guess was weeks of trial, the judge found that the injured individual lacked capacity to form the necessary intent to marry. The judge, in this case, built on a previous case and added more “teeth” to the test of capacity to marry. The judge concluded:
He did not meet the test set out in Ross Scott v. Potvin, namely that he understood the nature of the contract he was entering into and the responsibilities the contract created. At the time, and up to the present, he remains incapable of managing his own affairs.
The previous test was that a person must understand the nature of the marriage and the responsibilities the contract created. Now, according to this case, the law requires that a person be capable of managing his or her own affairs.
This means that those seeking to prove that a person lacked capacity to form an intent to marry have more tools at their disposal. If a person is incapable of managing their affairs – something that is likely easier to prove than “understanding the nature of a the contract and the responsibilities the contract created” – than a court will likely find that the marriage was a sham and therefore void.
This is particularly important in the province of Manitoba because, according to our law, marriage revokes a will. So if a parent or close relative marries, their will is revoked. If a new will and a co-habitation agreement is signed, the new spouse may have entitlement to at least part of the estate.
The downside to this is, the grounds provide individuals who disapprove of a parent’s spouse an opportunity to attack their parent’s decision. Finding the balance between personal sovereignty and protection from abuse is difficult to manage. While this new test is not perfect, in my view it strikes an appropriate balance.
Disclaimer – Legalese
I am posting this article for informational purposes only. The content does not constitute legal advice or solicitation. It does not create a solicitor client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact Philippe Richer at firstname.lastname@example.org, or 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential)
Philippe Richer is President of TLR Law Group. TLR has been located in the St. Boniface neighbourhood, in Winnipeg, since 1996. The office serves the middle class and small business within the province. With a focus on estates, wills, real estate, and corporate law, he leads his team in providing accessible legal services. Philippe also authored the business law course for the Knowledge Bureau and instructed the français juridique class at the faculty of Law at the University of Manitoba.