Wednesday, June 1, 2011


This is very unusual and interesting recent family law case: the husband, a Canadian citizen (R.H in the case.), was pressured into a marriage by his Filipino spouse (R.T. in the case) primarily  so she could gain immigration status in Canada.  From the description by the court below, she appears to have been extremely crafty and what could be commonly termed as a "user".  This should serve as a warning to all those considering sponsorship of foreign spouses: you should always ensure that the marriage is not entered primarily for immigration purposes. There is a heavy price to be paid by those who do not heed this warning, both financially and emotionally.

R.H. v. R.T.

R.H., Claimant, and

R.T., Respondent

[2011] B.C.J. No. 958

2011 BCSC 678

Docket: E102758

Registry: Vancouver
British Columbia Supreme Court

Vancouver, British Columbia
M.A. Maisonville J.
Heard: April 26, 2011.

Judgment: May 25, 2011.

(80 paras.)

Reasons for Judgment



1 R.H., the claimant, seeks an annulment of his marriage, performed on December 18, 2009, to R.T., the respondent. The parties separated on February 28, 2010 when the respondent left the matrimonial home located in Vancouver, British Columbia. R.H. seeks an annulment on the basis of duress -- he felt he was coerced into the marriage. The issue before this Court is to what extent must duress exist in order to nullify a marriage pursuant to s. 5(1) of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA]. The claimant, who concedes that the marriage appears valid on its face, argues the marriage is voidable for want of consent which he alleges has been vitiated by the duress exerted upon him by R.T.


2 R.H. commenced this matter by filing a Notice of Family Claim on August 25, 2010 (the "Notice"). His ability to serve R.T. with the Notice was problematic as her whereabouts were unknown to the claimant. He accordingly sought and was granted an order to substitutionally serve R.T. by e-mailing it to her last known e-mail address and by posting an advertisement in Form F11 in the Legal Notices section of the weekend edition of the Surrey Leader, a newspaper which serves the Surrey and North Delta communities.

3 On November 17, 2010, the matter was again before the court by way of a summary trial application, where the claimant sought an order of annulment. Dardi J. adjourned the application to Friday, December 3, 2010 and required, given the nature of the order sought, that the claimant serve the notice of application by sending copies of the application to R.T.'s last known e-mail address. The order of Dardi J. additionally set out that should R.T. wish to respond to the summary trial application, she should do so before 4:00 p.m. on November 26, 2010.

4 On Friday, December 3, 2010, the summary trial application was dismissed by Dardi J. on the basis that the matter was unsuitable for determination by way of a summary trial. Accordingly, the matter was set for trial and came before this Court on Tuesday, April 26, 2011.


5 The only witness called in this matter was the claimant, R.H. He is 30 years of age and is a Vancouver resident. He still lives in the matrimonial home in Vancouver he once shared with the respondent.

6 R.T., while served substitutionally with the Notice, has never appeared and did not appear at the April 26 trial.

7 The questions to be addressed are whether there was duress brought by R.T. to bear upon R.H., and whether the duress was of such a nature that it vitiated R.H.'s consent to the marriage.

8 After careful consideration of the factors relevant in the determination of duress, and while I accept much of the evidence of R.H. that R.T. was demanding and exhibited verbally abusive behaviour, I do not find that her behaviour was of such an effect and degree as to vitiate R.H.'s consent to the marriage.


• (a) Nullity of Marriage

9 A remedy seeking a nullity of a marriage is based in the argument that the marriage is void ab initio or voidable.
• (b) Jurisdiction

10 Counsel for the claimant noted that the Supreme Court has jurisdiction to grant annulment pursuant to s. 5 of the FRA, and the decision of Farris C.J.S.C. (as he then was) in Gower v. Starrett, [1948] 2 D.L.R. 853 (B.C.S.C.). In Gower, the court noted that the B.C. Supreme Court has jurisdiction conferred upon it, in respect of nullity as a ground of action voiding marriage ab initio or as a voidable marriage.

11 Section 5(1) of the FRA reads:

• Supreme Court jurisdiction

• The Supreme Court continues, subject to the Divorce Act (Canada), to have jurisdiction in all matters concerning the custody of access to and guardianship of children, dissolution of marriage, nullity of marriage, judicial separation, alimony and maintenance. [Emphasis added.]

12 As noted, the annulment sought here is on the basis the marriage was voidable based on duress.

13 Cases seeking an annulment of marriage are rare; a heavy onus rests on an applicant seeking such a dissolution.

• (c) Caselaw

14 Few cases have considered the issue of annulment of marriage based on duress. One of the leading cases in British Columbia is that of Gardner v. Gardner, [1970] 13 D.L.R. (3d) 250 (B.C.S.C.). In Gardner, it was argued that there were grounds for annulment on the basis that the spouses had married solely for the purpose of permitting the husband to enter Canada, and there was no consummation of the marriage thereafter. Chief Justice Wilson considered the issue of annulment as the petitioner had sought relief for dissolution of the marriage the grounds of nullity, and for divorce on the grounds of adultery. The parties in Gardner also had no intention to consummate the marriage or cohabitate after the marriage ceremony. The court found that there had been adultery on the part of the husband since the marriage ceremony, and there was no dispute that he was living with another woman.

15 In Gardner, Wilson C.J.S.C. referred to Silver (Kraft) v. Silver, [1955] 1 W.L.R. 728, 2 All E.R. 614, a decision of Collingwood J. of the High Court of Justice where the court held that when the circumstances of a marriage are solely for the purposes of representing themselves as married parties for the purpose of immigration, and the parties have no intention to live as man and wife, this alone does not vitiate the consent to the marriage. The court held there must instead be an element of duress. These circumstances were found to exist in a case cited in Silver, that being H. v. H., [1953] 2 All E.R. 1229, where there was an element of fear on the part of the wife, to the extent that it negated her consent to the marriage and afforded the Court the grounds to order a decree of nullity. The court in H. v. H. held that, absent this requisite element of fear, the marriage was valid. Accordingly, an annulment of a marriage on the basis of immigration reasons, even when there was no consummation of the marriage and no intention to live together, was not sufficient grounds to dissolve the marriage.

16 In S.(A.) v. S.(A.) (1988), 15 R.F.L. (3d) 443, 65 O.R. (2d) 720 (O.U.F.C.) [S.(A.)], the issue of duress in the context of a marriage annulment was also considered. In S.(A.) the applicant wife's mother and stepfather had received funds in exchange for arranging the marriage and facilitating the respondent husband's immigration process. The wife gave evidence that her mother and stepfather had pressured her into the marriage, and the pressure was such that her mind was overcome by the oppression. The court held that the marriage was invalidated because the duress was severe enough to vitiate the wife's consent to the marriage.

17 In assessing the issue of duress, the court in S.(A.) noted that while there were no allegations of physical force or threat exhibited by the appellant wife's mother and stepfather. Further, it did not matter that the oppressive conduct did not come from the respondent husband, and instead was from the applicant's own mother and stepfather. On the issue of duress, Mendes da Costa, in S.(A.) at para. 22, cited Scott v. Sebright (1886), 12 P.D. 21 [Scott], where Butt J. held at 23-24:

• The Courts of law have always refused to recognize as binding contracts to which the consent of either party has been obtained by fraud or duress, and the validity of a contract of marriage must be tested and determined in precisely the same manner as that of any other contract. True it is that the contracts of marriage there is an interest involved above and beyond that of the immediate parties. Public policy requires that marriage should not be lightly set aside, and there is in some cases the strongest temptation to the parties more immediate interested to act in collusion in obtaining a dissolution of the marriage tie. These reasons necessitate great care and circumspection on the part of the tribunal, but they in no wise alter the principle or the grounds on which this, like any other contract, may be avoided. It has sometimes been said that in order to avoid a contract entered into through fear, the fear must be such as would impel a person of ordinary courage and resolution to yield to it. I do not think that is an accurate statement of the law. Whenever from natural weakness of intellect or from fear -- whether reasonably entertained or not -- either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger. The difficulty consists not in any uncertainty of the law on the subject, but in its application to the facts of each individual case.

18 Accordingly, the court in S.(A.) recognized there exists strong public policy reasons for not setting aside contracts of marriage lightly as not only the parties, but society itself, has a stake in the outcome.

19 Further, the party alleging duress must prove that their mental state was so overborne by duress that they were actually in a state of "mental incompetence."

20 The court in S.(A.) also stated at para. 22: "A court is, indeed, required to exercise care and circumspection to ensure that the ground alleged as duress has been established". This passage cited by the court in Scott remains a leading statement of the law to the current day.

21 The court in S.(A) also referred the decision of Aylen J. in Pascuzzi v. Pascuzzi, [1955] O.W.N. 853 (H.C.), where the plaintiff wife was 15 years old at the time of the marriage and had been urged by the 19-year-old defendant husband to spend a night with him. The husband was subsequently arrested and charged criminally. The plaintiff wife was disowned by her family, and severely pressured by the defendant's parents to marry the defendant so that the criminal charges would be dropped. Accordingly, she married the defendant. While the court found that she had married in February and did not actually leave the defendant until December, some ten months after the marriage, this alone did not mean she had consented. The court held that there had indeed been duress such as to vitiate her consent to the marriage. In Pascuzzi, the court presented the following passage from R.R. Evans, The Law and Practice Relating to Divorce (1923) at 854:

• Where duress is the inducing factor the marriage may be annulled, for if influence is carried to such an extent as to in reality amount to duress, the aggrieved person could not have been acting as a free agent and no true consent could have been given. Duress implies the exertion of force which induces fear but does not necessarily mean physical force, for a course of conduct may amount to duress even though no physical power is exerted. There may be threats unfulfilled, or menacing or terrorizing acts or words or conduct so affecting the will of another as to induce through fear or apprehension a state of mind precluding the possibility of the importuned person acting as a free agent or offering resistance to coercion or threats. Fear is a necessary ingredient but it need not be fear of some danger or injury or calamity to the person coerced, but is sufficient if fear for some other person is created. [Emphasis added.]

Again, the duress must be of such a nature that the free will to consent to the marriage is overborne.

22 The court also considered the issue of duress in the decision of Greer J. in Feng v. Sung Estate (2003), 37 R.F.L. (5th) 441 (O.S.C.J.) [Sung]. In Sung, an action was brought by the estate seeking a nullity of the marriage of the deceased following his wife's death. Mr. Sung had hired a caregiver because he was suffering from lung cancer. All of the available evidence indicated that the deceased was succumbing to his illness and was gravely ill when he married his caregiver. Further evidence was that the deceased had intended to marry only under the circumstances that there be a prenuptial agreement. The court found that Mr. Sung was impotent, suffering a grave illness, and receiving chemotherapy treatment for his cancer at the time of the marriage ceremony. The deleterious side-effects of this treatment included weakness, vomiting and weight loss. The court found in those circumstances that the marriage of the caregiver to the deceased was a nullity. The court held there was no consummation of the marriage, and that there had been significant duress exerted on him by the caregiver. The court stated at para. 50:

• 50 I am satisfied on the evidence before me that Feng pressured Sung into marrying her by telling him that she would abandon him and not take care of him. Given Sung's frail health and the fact that he was dying, Sung did not have either the physical or mental strength to resist this and tell his children what Feng was doing. Further, Feng's rapacious behaviour and utter greed, caused her to literally drain Sung's bank account without both before his death and shortly thereafter.

23 Counsel for the claimant in the case at bar noted the unique circumstances in Sung where the court had to find the marriage void ab initio, rather than voidable given the death of the husband and the fact that the action was being brought by the estate. Nevertheless, Sung was cited for the basic reasoning respecting duress and the application of the principles described in S.(A.), and the question was whether or not duress of the nature described in the cases, inter alia in Scott, applied.

24 The court in Sung considered the issue of duress as it related to annulment of a marriage and concluded using the words of the court in Scott that the party must be actually in a state of "mental incompetence" to resist pressure brought to bear, thereby vitiating consent. Relying on Scott, the court restated that public policy stipulates that marriages should not lightly be set aside. Furthermore, the question is not whether the party is a person of ordinary courage or not, nor is the question whether the fear is reasonably entertained or not. The question becomes: is the party actually "in a state of mental incompetence to resist the pressure improperly brought to bear"?

25 In Parihar v. Bhatti (1980), 17 R.F.L. (2d) 289 (B.C.S.C.) [Parihar], MacKinnon L.J.S.C. refused an annulment in a situation where the plaintiff had married only "by reason of pressure brought by her family and fear of the consequences if she went against their wishes" (see para. 1). The circumstances being an arranged marriage where the parties did not live together nor did they consummate the marriage. In refusing to grant the annulment, and even though the court accepted that incredible pressure had been brought to bear upon the plaintiff, MacKinnon L.J.S.C., at page 291, found that:

• 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 nature that her powers of volition were so affected, it really was no consent.

While the courts recognize varying degrees of coercion, the question remains: does the coercion reach a degree that it vitiates consent to the marriage?

26 In Kecskemethy v. Magyar (1961), 2 F.L.R. 437 [Kecskemethy], a decision from New South Wales referred to by the court in S.(A.), the plaintiff underwent the marriage ceremony in circumstances where she had only married the defendant after he threatened to commit suicide. He even showed bloodstained clothes as evidence that he had indeed attempted suicide. She testified she had married him for fear of what would happen to him. The defendant even agreed to divorce the plaintiff following the ceremony if they did not "understand" one another. The court found it of note that some months had passed between the threat of suicide and the ceremony, but even though the plaintiff testified she continued to fear for the life of the defendant and testified she married only as a consequence of this duress, the court did not grant the annulment.

27 In Kawaluk v. Kawaluk, [1927] 3 D.L.R. (3d) 493, the plaintiff wife, barely 15 at the time of the marriage ceremony, sought an annulment on the basis of duress. She lived with the defendant for a number of years but her evidence was that she had only done so at the request of her father, and following his death, she only lived with the defendant for another three months. Still the action was dismissed. The trial judge found it incredible that she would ratify the marriage and remain.

28 Accordingly, it can be summarized that there are several factors the court must examine to determine if the applicant'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.


• (a) Personal Circumstances of the Claimant

30 R.H. gave evidence that he had emigrated from Jamaica to Ottawa in August 1986 when he was five years of age. He was born in 1981. He was the youngest child of three children and until 2007, he lived with his family in Ottawa, attending school, and later a post-secondary education at Algonquin College from which he graduated in 2004 from a three year business administration program. In 2007, he travelled to Vancouver, B.C. and became a self-employed labour consultant, assisting people wanting to come to Canada for employment, and also helped place those individuals with people seeking caretakers in Canada.

31 I find that R.H. is a sophisticated businessman. He had the requisite knowledge and ability to establish his own successful business. He created a parent company and a sub-company with a brand name as a vehicle to conduct his business. He incorporated the business in 2004 and brought it with him from Ottawa when he established residence in British Columbia. The company was an internet-based business enabling him to fluidity transfer operating from Ontario to British Columbia. He was earning, he testified, $15,000 net a month. His business was so successful that in 2008 he purchased a home in Surrey for $478,000. He later purchased a further home in Vancouver. He had leased a $80,000 BMW vehicle as well as having a Jeep. He worked hard at his business, he testified, working six days a week, no less than eight hours a day, and sometimes up to as much as 14 hours. He testified that through his business he managed to have savings in the order of $40,000. I accept his evidence on these background points.

32 R.H.'s relationship with R.T. began in early 2008. R.T. was from the Philippines. He met her through a foreign worker from Egypt who he had placed here in the Lower Mainland and befriended. The woman he knew from Egypt had advised him that she had a friend (R.T.) whom she met when they were working in Taiwan. Thereafter, R.H. and R.T. started a relationship through text messaging. A flirtation developed which, he testified, at first surprised him, but he began to see her and they commenced dating. At the time, R.T. was working as a live-in caregiver. He, in fact it turned out, had placed her in the home of her employer in February 2008.

33 At that time R.H. questioned the respondent as to why she was working as a live-in caregiver when she had indicated to him that her family was well off in the Philippines and that she did not, in fact, need to work. R.T. indicated to R.H. that she personally had three businesses in the Philippines, one of which was a rice production and wholesaling business, the other businesses being a silversmith business and a currency exchange business. R.T. further told R.H. that she owned all of these businesses herself. She also stated that, together with her family, they had a resort business. He understood that the businesses were profitable and that things were going very well for her, financially, in the Philippines.

34 In the fall of 2008, R.H. testified that R.T. moved in with him. They lived at his home in Vancouver. At that time, the Surrey property was rented out and that rental income was meeting the mortgage payments for that house. At first, everything went well; however, in the spring and summer of 2009, he described there being an increasing pressure being placed on him by R.T. to become involved in her Philippines businesses. She had wanted him to stop his own business and to join her. He testified he did not want to stop his business. However, he indicated that in 2009 she became stronger with her demands, but by the same token, she became more generous with her offers to R.H. respecting her businesses. She offered to share the businesses, giving him 100% of the currency exchange business as a gift, and being a half-owner of the rice wholesaling and silversmithing businesses in exchange for his quitting his own business. He felt this was more fair, and he testified they discussed these business arrangements a number of times. I accept R.H.'s evidence in this regard. Put into evidence was R.T.'s notes commencing July 2009 detailing the sale proceeds for the rice wholesaling business on a daily basis.

35 Additionally admitted into evidence was a more detailed review of the rice business in R.H.'s handwriting, indicating the amount that was obtained daily from the business in Philippine pesos. In his view, it appeared to be a profitable business. He testified that in July 2009 he felt sufficiently comfortable about R.T.'s businesses in the Philippines that he agreed to assist her with running these businesses. Accordingly, in the first week of September 2009, he stopped spending time on his business as he believed he would be helping R.T. run her rice, silversmith, and currency exchange businesses. He testified, and it was argued, he had performed his due diligence for R.T.'s businesses.

36 Little evidence was called on the exact nature of R.H.'s duties in respect of running these businesses. I do not find the duties anything of the same nature as those that R.H. had done for his own immigration consulting business. The only evidence, as to his duties in support of the Philippines businesses, was one phone call a day to inquire about the ongoing sales for the rice business, and this was the only time that R.H. devoted to this enterprise.

37 In any event, by the first week of September 2009, R.H. had stopped his own business and accordingly the only income he now had was the remaining credits in his account stemming from earlier transactions, which had began to dwindle and dried up entirely by December 2009. However, I do not find that because he willingly gave up his business and let it go dormant, that this fact alone makes him vulnerable to such an extent that he meets the criteria necessary to take away his consent to the marriage. He willingly became a partner, after negotiation, and after performing what was argued to be due diligence on these businesses.

38 Nevertheless, R.H.'s income from his own business began to diminish. He awaited payments that he was promised would be forthcoming from the Philippines. He testified he was reliant upon R.T. to give him a couple of hundred dollars a week to have gas in the car and in order to have a small amount of money. He gave evidence that he accepted her version of the fact that wire transfers of money were not coming because of 9-11 terrorism and money laundering concerns. I find this evidence unreliable given the nature of his earlier business, and that he had been accepting wire transfers of funds from countries in numerous situations as part of his own business.

39 R.H. gave evidence that the respondent wanted to have children and that he was initially very enthused at the prospect. He wanted to become a father, and he wanted to have children. In the first few weeks of their living together, she advised him that she was pregnant, to which he responded that it was not a problem. After time, however, he began to question her whether she was in fact pregnant. On one occasion, when he was seeking verification, he testified that he indicated to her that she would have to "show me". He testified that he stood outside of the bathroom for about an hour while R.T. endeavoured to administer a home pregnancy test. However, the test results indicated that she was, in fact, not pregnant. I therefore do not find this behaviour indicative of someone who was enduring improper duress.

40 R.H. gave evidence that at this time, R.T. was placing increasing pressure on him to have a child. At this point, he indicated he did not want to have a child, after which she would become angry. There was also evidence given by R.H. that R.T. was seeking to have him sponsor her for Canadian citizenship, and again she would become enraged and angered in that regard. While I accept R.H.'s evidence that R.T. was exerting pressure on him, marriage for immigration purposes alone does not by itself warrant granting an annulment.

(b) The parties' emotional state -- vulnerability

41 R.H. testified that he was taking medication: Celexa and was additionally prescribed Seroquel in November 2009. He testified that he was feeling depressed, anxious, and having disturbing thoughts. He testified that he was not feeling like himself and was having trouble sleeping because of his concerns over the situation with R.T. He was concerned because she had control over everything, and he testified that she was increasing the pressure on him to have a baby. She was also, he testified, pressuring him to enter into a marriage at a time when he could not cover his monthly expenses. He testified his monthly expenses approximated $8,000, which amount included his business expenses. However, he testified that these monthly expenses lessened when his business went dormant in September 2009.

42 On December 18, 2009 he and the respondent married. He testified she had been pressuring him into marrying her for months but what finally prompted the marriage was her statement to him that "I will destroy you", which he interpreted to mean that she would destroy everything in his life were he not to follow through with marrying her. At this time, he testified that he no longer had any income, because she had complete control over the money from the Philippines, and he needed money from R.T. to pay his bills. He felt he could not walk away from his debts and was therefore trapped.

• (c) Medical Records

43 R.H. testified that he was overborne with depression at the time of the wedding ceremony. To support his claim, R.H. placed into evidence his medical charts from the medical clinic he attended. These charts were the only medical evidence before me at the trial and no physician was called nor was a medical report filed. While records exist respecting his admission at the hospital, they were not tendered as evidence. The medical charts were therefore consequently only admitted for the purpose of establishing that he attended the medical clinic and made certain complaints which are contained in the charts.

44 It is important to note the medical complaints of R.H. that he could not sleep are not new complaints arising from this matter.

45 On June 16, 2007 R.H. had attended the clinic advising the physician that he "can't sleep" and was "waking frequently". At that time he told the physician he had a fiancée and he complained the "fiancé (sic) snores in another room." He also attended the clinic in 2007 for some other matters not relevant to these proceedings.

46 The next time R.H. attended the clinic because of symptoms related to this matter was on January 9, 2009. This visit to the clinic was because his "wife," age 33 had not had her period for three months but the pregnancy test yielded a negative result. No other medical concerns were expressed during this visit to the clinic apart from his concern about R.T. and nothing that related to mood, depression or any other symptoms that could be construed as coercion were discussed with the physician.

47 R.H. attended the clinic again in October 2009, but this visit was not relevant to anything before the court.

48 On November 17, 2009 R.H. presented with decreased sleep and stated his mood was "sometimes happy occasional tearfulness" but "no suicidal thoughts or plans". Occasionally he reported feeling down. He reported having a "successful business". He reported that he had relationship anxiety and that he has had counselling for anxiety years ago but that "his girlfriend doesn't want to go." He was prescribed medication and he was to come back. He reported, "I like to spend time on my own".

49 On November 21, 2009 R.H. went back to the clinic and described himself as an immigration consultant and complained of "insomnia longstanding." A new medication was prescribed and at a subsequent visit to the clinic his medication was adjusted.

50 In December 2009 R.H. again attended the clinic. These visits to the physician immediately preceding the marriage ceremony are important because they assist with assessing R.H.'s mental state at this time. On December 11, 2009 he attended the clinic with the chief complaint being that he had a physical problem that was interfering with his ability to be intimate with his partner. His medication was consequently adjusted. He advised the physician that he started taking Celexa for S.A.D. (which I understand to be seasonal affective disorder) and he complained this medicine had side effects which resulted in this dysfunction and was not related to depression. During this visit, no other complaints were noted. Accordingly, it is difficult to reconcile this evidence with the claimant's testimony that he was a reluctant partner to R.T. No explanation was offered by R.H. in respect of this and I do not find the claimant's evidence reliable that he did not want a physical relationship with the respondent, R.T.

51 On December 20, 2009 two days after his marriage to R.T. no complaint is made relating to this matter nor his mood.

52 On December 22, 2009 there was again a sleep complaint in which R.H. complained of decreased mood because of decreased sunlight for which he tried using a sunlamp. He had "zero suicidal thoughts and plans" according to his complaints noted in the charts. He reported insomnia. He also had another visit to the clinic in December but this visit does not bear on the matters before the court.

53 R.H. saw the doctor again on January 5, 2010. At this time, and for the first time, he mentioned his mood was down and had been since September or October of 2009 and that he has worsening thoughts and was feeling depressed; however, he stated, "I like my life" even though he complained of low energy and low motivation.

54 On January 6, 2010 R.H. returned to the clinic stating he was quite unhappy and advised the physician of a secondary complaint that was related to "relationship stuff".

55 On February 20, 2010 R.H. stated to his doctor that he "still lives in the house with his wife."

• (d) Marriage Ceremony

56 R.H. arranged for the wedding and for a marriage commissioner to conduct the ceremony at his home. The two witnesses to his marriage were his friends, however, they were not called in this matter and the court was advised they were in South America. Nor was the marriage commissioner called. No evidence was led that the claimant displayed any unusual emotions during the ceremony or that anything eventful occurred during that ceremony. Accordingly, I find his emotional state, based on the claimant's own evidence, to have been normal during the marriage ceremony.

57 When assessing R.H.'s vulnerability or dependence on R.T., at this time one factor to bear in mind is the extent of his assets, including the house in Surrey and the home in Vancouver. Amongst these was $40,000 he had in savings. R.H. additionally had a line of credit and personal credit card. R.H. also testified that he felt he had no choice except to marry R.T. because it was either that or "go to the streets". However, I do not accept this evidence reliable as it is not a realistic, and I have no evidence before me that the assets did not remain in his possession.

58 R.H. testified that R.T. would do strange things. For example, when he was leaving the house, she would grab his ankles and hold him really tight so that he could not leave. He felt he could not retaliate or escape from this because he had fears that she would go to the police. He testified he felt humiliated and ashamed by the fact that she was abusing him and because of their difference in size, his being 190 lbs. and her being 120 lbs., he could not do anything by way of self-defence as he felt he might hurt her. Again, this, however, does not detract from his consent given at the marriage ceremony.

59 Ultimately, he testified, creditors began calling in December 2009 because he missed two mortgage payments for the house in Surrey by January 2010. Previously, the rent had been covering the mortgage payments but R.H. needed that money now, particularly in January and February 2010 to meet his ongoing expenses. Gradually his debt increased and approached $30,000. He used his personal credit card to pay for $10,000 of that debt, but he was accruing more and more debt.

60 R.H. testified that one night, on February 20, 2010, he woke up and found that R.T. was not at home. He drove around the neighbourhood looking for her. He looked in typical places where she might be. He ultimately went to the police to report her as a missing person. Instead of simply taking his report, the police took R.H. to Vancouver General Hospital where he was held for psychiatric observation overnight. When he was released from the hospital the following day, he found R.T. was at the residence. He demanded that she show him all of the business records for the Philippines businesses. He further told her that she would have to set the matters straight, and come clean on her promises to pay him from the businesses. He advised her he would have to pursue the truth on these businesses. He had to get to the "bottom of the situation." He advised her that they were going to the Philippines in order to review the businesses.

61 Accordingly, R.H. bought a ticket and testified he thought she, too, had purchased a ticket; however, just before leaving, she indicated that she had no such ticket to fly to the Philippines. He re-booked the flight for the following Saturday, and when Saturday came, she still did not have a ticket. He testified she tried to dissuade him from going, indicating the country could be dangerous. He remained adamant about the trip and left for the Philippines without her.

62 R.H. testified he was intercepted in Manila by one of her friends; however he still continued on to the village where her family was. At which point, R.H. was advised that R.T. had let the businesses close. The businesses had failed, he was led to understand, before the marriage ceremony. He saw that the currency business and the rice business were closed. He testified he did not see the silversmith business.

63 When R.H. returned to Vancouver, he told R.T. that she had one hour "to fix this". As she was unable to do so, he directed her to leave within the hour, and so she left.

64 R.H. felt that she tricked him and that she was very secretive throughout the relationship. He is seeking an annulment because he says "this is not the way that relationships are supposed to go". He felt as if he was put into this marriage because he had his back against the wall and that he was backed into a corner and he had no choice but to marry her. He testified he had strength to tell her to leave because he was already destroyed. However, there is no evidence he lost any assets other than incurring debt that fall of 2009. He testified he felt tricked and had no choice nonetheless but to marry her.

65 R.H. has not been in contact with R.T. since she left the home in Vancouver apart from a few email exchanges.

• (e) The claimant's emotional state -- analysis

66 I accept R.H.'s evidence that he felt pressured and that he was suffering emotionally from abusive comments from R.T. As a consequence of her pressure and also as a consequence of his becoming a business partner I accept that he felt tremendous pressure to marry R.T. I do not find or accept, however, that the pressure was such as to vitiate his ability to consent to the marriage. He arranged for the ceremony to occur in his living room and arranged for the marriage commissioner to be there. He arranged for two of his friends to come to attend the marriage ceremony and witness the marriage. While there was pressure, this pressure did not amount to a level that it vitiated his consent to the marriage. R.H.'s circumstances are unlike the plaintiff in S.(A) and the circumstances in Sung or Scott.

67 In respect of vulnerability of the claimant, as noted, he held and continues to hold significant assets. There was no evidence led respecting his business being permanently closed, although dormant. The claimant, I find, was a successful businessman enjoying a net income, according to his testimony of $15,000 monthly. In these circumstances, I find the claimant's evidence unreliable that he was vulnerable to such a nature as to equate with the factors pointing to consent being vitiated.

68 In S.(A), the wife married the husband when she was 16 years of age. Her evidence, accepted by the court, was that her mother and stepfather had pressured her into marrying him in exchange for a sum of money. The court in S.(A.) noted that cases in which annulment is granted are relatively few stating, "A court is, indeed, required to exercise care and circumspection to ensure that the ground alleged as duress has been established." The court in S.(A.) referred to the decision in Thompson v. Thompson (1971), 4 W.W.R. 383 (Sask. Q.B.) [Thompson] where the relief of annulment was denied in circumstances very similar to the matter before the court. In Thompson, the plaintiff, severely depressed from having been rejected by another man went through with a marriage ceremony because she was unable to find the courage to cancel the plans. While the court found that the mother had exerted influence on the plaintiff it was insufficient to ground a basis for duress of such a nature as to vitiate consent.

69 As noted, "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, it really was no consent." (Parihar, 291).

70 Nor was R.H. in a situation similar to the husband in Sung, who while dependent on his caregiver and suffering from the effects of chemotherapy treatment to help him fight cancer, married her under the pressure that she would otherwise abandon him.

71 It was also noted by the court in Kecskemethy, as in the case here, there was no evidence presented of her appearance or demeanour at the marriage ceremony that the party's will was overborne. The only evidence presented by the claimant in the case at bar was that the witnesses at the ceremony were out of the country in South America and that the ceremony, performed by a marriage commissioner, was very hastily arranged possibly only a day in advance of the ceremony. No evidence was called that at the marriage ceremony itself there were any difficulties at all.

72 The case of Williams v. Williams, [1966] V.R. 60 (S. Ct.) [Williams] cites from the headnote of Kecskemethy at 62, as follows:

• The strongest evidence is necessary to rebut the presumption of consent arising from going through the ceremony of marriage without complaint or apparent reluctance. In order to hold such a ceremony not binding, it would be necessary to infer as a fact one of two things -- either that one party was so perturbed by terror as to unhinge the mind and did not understand what he or she was doing; or, though understanding what he or she was doing, the powers of volition were so paralyzed that the words used and the acts done merely gave expression not to such party's own will, but to the will of the coercing party.

73 In Williams the threat was that unless the parties married there would be prosecution for unlawful carnal knowledge of the petitioner. The trial judge accepted the petitioner's testimony, in the case which was undefended. However, he found that even though the petitioner was in fear that he would be criminally prosecuted and scandalized that was insufficient to equate with the necessary level of duress required for an annulment. In Williams the trial judge with regret refused the annulment.

74 I have no evidence before me that at the time of the marriage ceremony R.H. was experiencing difficulties equivalent to the circumstances noted in Scott, to vitiate his consent.


75 I find that while R.H. was depressed and certainly experiencing acute difficulties in February 2010, this did not accurately reflect his emotional state when the marriage ceremony was performed. The medical charts surrounding that time do not reflect a man being coerced by duress into a relationship. Indeed during the period leading up to the marriage, it is clear that R.H. was attending the physician to ensure he could maintain marital relations with his partner. There was no evidence before me that the marriage was not consummated. Indeed R.H. and R.T. lived as husband and wife following the marriage ceremony albeit not for a lengthy time.

76 I accept there was coercion exercised on R.H., but I do not find it disabled him from freely consenting to the marriage. I accept R.H.'s evidence of his depression. I accept R.T. was verbally abusive and said she would "destroy" R.H. at some time preceding the ceremony. I accept that in February of 2010, he was having such emotional and psychiatric difficulties that he was held overnight in the hospital; however, there was no evidence that he was of unsound mind so paralyzed by fear that he did not consent willingly to the marriage at the time of the marriage ceremony. His will was certainly strong when he went to the Philippines and further when he told R.T. she had one hour to rectify the situation or she was required to leave, which in fact occurred. He equally was able to verify whether R.T. was pregnant. He felt he had been able to sufficiently checkout R.T.'s businesses to such an extent that he freely became a willing partner.

77 I can empathize with R.H. when he articulated his reason for seeking an annulment, as opposed to a divorce, on the basis that according to him "this is not the way relationships are supposed to go." Further he may be concerned that he will have to one day relate that he is divorced and does not want to have to discuss the reasons. However, this is not a basis for an annulment.

78 There is a presumption of the validity of the marriage, and the onus is on R.H. to establish complete lack of consent through duress. To establish duress:

• Very clear and cogent evidence is needed to rebut the presumption of marriage where there is no evidence to the effect of the plaintiff's demeanour at the time of marriage showed stress or fear.

• Davies, Family Law in Canada, Carswell 1984 at 69.

79 I find that in all the circumstances R.H. has not met the heavy onus upon him required to rebut the presumption of a valid marriage.

80 The claim for an annulment is dismissed.


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