Canadian Lawyer

www.lawtimesnews.com 33 ago" and was one of the main tools in the Courts of Equity before the fusion of law and equity in the 1870s in England, Poyser says, which was adopted soon after across Canada. It was used approximately 15 to 20 times in this country around 1890 to 1910, he says, and it then appeared to drop from judicial vogue. "It basically disappeared from view — until now," Poyser says. "And then, boom, it's back on the legal landscape." Equity had about four or five fairness tools, and the Court of Common Law had black- and-white rules, but, after the courts were fused, the judges were tasked with applying both sets of rules. Poyser says the judges began to simplify things, and some of the subtler tools from the Court of Equity were dropped. The judges began to focus on the use of the capacity challenge when determining if a gift was valid, and, on the equity side, equitable undue influence was the tool with the broad- est application. They were interested in a simplified toolkit with the most easily applied tools in it, and the more subtle and narrow equitable tools were set aside. "If you put aside a hammer somewhere, a month later, you don't remember where it is. Certainly, 10 years later, you don't know where it is, and then, 50 years later, it's really hard for someone to say, 'There's a hammer around here somewhere, let's go find it and use it because it's actually the right tool to beat this problem.'" However, once embedded in common law, legal principles do not go bad, according to Poyser. The test is if they still apply in modern times, he says. In the Gefen case, counsel was able to trigger an equitable presumption using the doctrine of unconscionable procurement, but it couldn't get to that same spot by using the common current tool, equitable undue influence. Whaley says that, with predatory mar- riages, "we are sort of cursed by the com- Whaley says that's interesting because, in some cases, especially in predatory marriages, what she's trying to argue is that the remedy shouldn't be limited to just the parties to the agreement or to the marriage. "The nice thing about the revived doctrine is leave can be granted to a person not within the marriage," Whaley says. "Other parties who are affected by it should have the ability or have standing to make or advance some of these claims." There is a slight downside to the doctrine, Whaley notes — even if it helps set aside a transaction, it would be ruled voidable as opposed to being void, which would mean it's as if it never happened. "There's a distinction there," Whaley says. It's still worth exploring the historic appli- cation of the doctrine, because since it hasn't been used for so long, some lawyers may assume it's the same as bringing a claim for incapacity or undue influence. It may be a similar equitable tool, but it's not at all the same, Whaley says. Poyser and Whaley both have the same response about potentially using the doctrine of unconscionable procurement in preda- tory marriage cases — why not? — although Poyser notes it's never been used in that way before, but he adds that doesn't mean it couldn't be used. "It would have a perfect applica- tion depending on the situation and the unique circumstances of the actual case," Whaley says. "It would have a perfect application depending on the situation and the unique circumstances of the actual case." Kimberly Whaley, Whaley Estate Litigation Partners mon law precedent, which says a long time ago that to marry is but a simple task not requiring a high degree of intelligence — which is what our court has had to deal with when determining predatory marriages and whether or not a person has the requisite capacity to marry." The difficulty, she explains, is that the case law came out at a time where there were no property rights for spouses — in particular, women didn't have property rights — and now there's a "very robust" Family Law Act that provides for married spouses both during a relationship and after death. Similar to challenging a will, when chal- lenging an alleged predatory marriage, it's difficult to get evidence of capacity commen- surate with the timing of the event. "We've had to look to other remedies, like equitable remedies," Whaley says, such as the doctrine of unconscionability, lack of inde- pendent legal advice, the civil tort of deceit or fraud. "In this case, I think if you had a preda- tory marriage where through the marriage property was procured — in other words, the predatory spouse does all the work, does all the documents, gets all the legal advice if it's necessary and the victim didn't have the information or had misinformation on the signing of the documents — the same prin- ciple could apply, for sure. It's another great equitable tool." In Gefen, a third party — not a party to the actual gift or the giftor — was granted status.

• Cover