Setting Aside Fraudulent Consent Orders

A shocking BC family law case involving fraud and impersonation was recently ruled on by the BC Supreme Court. The setting aside fraudulent consent orders decision in Zant v. Zant 2022 BCSC 2023  deals with the setting side of consent orders for an Annulment of a marriage. The Application to set aside the consent order was commenced by the Pension plan of Mr. Zant, the Operating Engineers’ Pension Plan, B.C. Reg. No. 85512-1, on the basis that the Annulment Order was obtained by an abuse of process, fraud, perjury, or a deliberate attempt to mislead the court.

Vancouver family lawyer, Eleanor Surajballi goes through the unusual fact pattern where a family Consent Order was set aside.

Setting Aside Fraudulent Consent Orders

The parties, Warren Thomas Zant (the Claimant) and Gina Elizabeth Zant (the Respondent) had separated. In 2017 a separation agreement was drafted and this included the following terms:

1. Warren Zant will continue full dependent coverage on the Pension Plan for Gina Zant, which is to include B.C. Medical, dental care and extended health benefits for the lifetime of Warren Zant;
2. Gina Zant will remain as beneficiary on all pensions received by Warren Zant from the Pension Plan and the Canada Pension Plan; and
3. Neither party will make a claim for spousal support or pension splitting at any time following the signing of the agreement.

On November 3, 2021, Mr.  Zant filed a notice of application in this family law case (the “Annulment Application”). The Annulment Application sought the following orders:

1. An order annulling the marriage between Warren Thomas Zant and Gina Elizabeth Zant;
2. An order for a 50/50 division of property and assets;
3. An order removing Gina Elizabeth Zant from being a beneficiary under Warren Zant’s pension and benefits plans; and
4. An order requiring Gina Elizabeth Zant to stop using the “Zant” surname.

Dirty Tricks and Courtroom Imposter!

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An application response was submitted in which the Respondent, Ms. Zant purportedly consented to all the terms of the Orders sought as well as provided some additional comments about the parties’ marriage not being a legal marriage, amongst other comments. At the hearing of the Annulment Application, and individual who portrayed herself as Gina Zant appeared by remote audio connection, confirmed her agreement with the Order sought in Mr. Zant’s notice of Application. As a result, the following Orders were made:

1. an order annulling the marriage between Warren Thomas Zant and Gina Elizabeth Zant;
2. an order that Warren Zant’s pension benefits from the Pension Plan were not divisible and that Gina Elizabeth Zant could not be a designated beneficiary on Warren Zant’s plan; and
3. an order that the survivor benefits of Warren Zant’s pension benefits from the Pension Plan be allocated to Maryna du Plessis Baylis as a designated beneficiary.

(the “Annulment Orders”).

In adjudicating on the Pension plan’s application to set aside the Annulment Orders considered section 200(2) of the FLA and the inherent jurisdiction of the Court, citing the Court of Appeal case of in Racz v. Mission (District), [1988] B.C.J. No. 19 (C.A.) which endorsed the law relating to setting aside a consent order as summarized by Fraser and Horn, Conduct of Civil Litigation in British Columbia, Vol. 2.

[8] The law relating to the setting aside of a consent order is summarized by the editors of Fraser and Horn, Conduct of Civil Litigation in British Columbia, vol. 2 at p. 1064 (January 1985):

27.11 Order Obtained by Consent.

An order entered by consent is in effect an agreement of compromise and such an order may be set aside on any ground which would invalidate a contract. In all other respects the judgment has full force and validity. A separate action must be brought to set aside a final order. Where the order is interlocutory however, a motion may be made to set it aside.

Grounds upon which a consent order may be set aside include lack of authority of counsel, common mistake, fraud, collusion, duress and illegality.

Annulment Set aside – Setting Aside Fraudulent Consent Orders 1 877 602 9900

The Court held that the Annulment Orders should be set aside on the basis that there were sufficient grounds to set aside orders made where an imposter appeared at an application representing themselves as being the party, without the actual consent of the party. The Court was also satisfied that the Annulment Orders, which was made by consent, should be set aside on that basis.

A further interesting point to note, was the consideration of credibility. In reviewing the evidence, the Court found Mr. Zant’s credibility as being highly questionable. The Court received evidence about: how Mr. Zant had made enquiries and representations to the Pension Plan prior to the Annulment Application and Annulment Order being made; evidence he filed in support of the Annulment Application, and other representations that he made that there was a Cease and desist order and the Canadian Embassy was sending an “international human rights person”. These representations worked negatively against Mr. Zant and resulted in little weight being given to his evidence.

If you have questions concerning setting aside fraudulent consent orders in a family or estate case, contact us immediately across BC and in Calgary.