Tuesday January 22, 2019

Predatory Marriages

Authored by: Terrance G. Sheppard Posted in: Family Law Wills & Estates

Marriage can have a significant legal impact on a person’s property and assets. Through marriage a spouse may have legal claim to a home,[1] may have a claim to other property and a marriage may give rise to spousal support obligations.[2] Importantly, any will that is signed before the marriage is probably not valid after the marriage.[3]

‘Predatory marriages’ occur when a person uses a position of trust to take advantage of an elderly or vulnerable victim. A predatory partner may use their status as a spouse to cause an elderly or vulnerable victim to alter a will, change a power of attorney, transfer a property or change an insurance policy designation. These actions may impact the victim and can also impact beneficiaries named in a previous will. The negative impacts of predatory marriages are often not discovered by family members until significant damage has been done.

***

In Hunt v Worrod, an Ontario court considered a legal challenge to a predatory marriage.[4] While the court eventually voided the marriage, the process lasted six years and took a significant toll on Mr. Hunt and his family.

At the age of 50, Mr. Hunt was involved in an ATV accident. This accident changed his life drastically.   He went from hardworking and independent to requiring 24-hour care and support. Prior to the accident Mr. Hunt had a tumultuous romantic relationship with Ms. Worrod. The two had lived together but had decided to end their co-habitation and both had signed a separation agreement.

Three days after being released from the hospital into the care of his sons, Mr. Hunt was taken by Ms. Worrod’s uncle to the town of Collingwood, Ontario, nearly 200km away. Mr. Hunt’s sons tracked him to a hotel in Collingwood and on arrival discovered that Mr. Hunt had been married to Ms. Worrod. The wedding ceremony had many of the trappings of a traditional marriage: It had been officiated by a reverend, the parties exchanged rings and Ms. Worrod’s brother acted as the best man.

Mr. Hunt’s sons, acting as Mr. Hunt’s litigation guardians, brought a lawsuit on his behalf to have the marriage declared void on the basis that Mr. Hunt did not have the required capacity at the time he was married. At trial the Court heard extensive medical evidence and testimony from people who knew Mr. Hunt prior to his injury. The Court heard that Mr. Hunt’s injuries caused numerous impairments including physical symptoms, limitations in judgment, limitations in reasoning, poor impulse control and memory defects.

The Court found that the evidence overwhelmingly supported  finding that Mr. Hunt did not have the requisite mental capacity to marry Ms. Worrod at the time they were married. In a later decision on legal costs, the Court excoriated Ms. Worrod’s lawyer and Legal Aid Ontario (who funded Ms. Worrod’s defence).[5]

***

In a certain sense, Mr. Hunt was lucky. Although he had the misfortune of falling victim to a predatory marriage, he was fortunate to have family members looking out for his interests. The legal challenge launched by Mr. Hunt’s sons likely prevented significant damage to Mr. Hunt’s personal well-being, property and estate.

Assessing a person’s capacity to enter a marriage is a complicated affair. In order to enter into a marriage (that cannot be voided without the consent of both parties) a person must have the capacity to understand the duties and responsibilities created by a marriage contract. Any person of age may consent to marriage, but if they lack the capacity at the time they are married, the marriage is vulnerable to being legally challenged by one of the parties and declared void by a court of law.

Lawyers at BOYNECLARKE LLP are experienced with all issues related to marriage, estates and capacity and decision-making.  If you would like to discuss any issue in any of these areas please contact one of the members of our Family, Estates or Litigation teams.

 

 

[1] In Nova Scotia: Matrimonial Property Act, R.S.N.S. 1989, c. 275, s. 6.

In Ontario: Family Law Act. R.S.O. 1990, c. F.3, s. 20.

[2] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2.

[3] In Nova Scotia: Wills Act, R.S.N.S. 1989, c. 505, s. 17.

In Ontario: Succession Law Reform Act, R.S.O. 1990, c. s. 16.

[4] Hunt v. Worrod, 2017 ONSC 7397 (CanLII), <http://canlii.ca/t/hpf5n>.

[5] Hunt v. Worrod, 2018 ONSC 2133 (CanLII), <http://canlii.ca/t/hrmxr>.

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