Predatory Marriages: Recent Ontario Decision Endorses Test for Capacity to Enter into a Marriage

An Ontario court decision illustrates how quickly careful planning for the future can be destroyed when a vulnerable person gets married. While predatory marriages most often involve an elderly target (which constitutes elder abuse – a concern that both wills and estates and family lawyers are increasingly hearing about), individuals of all ages that are vulnerable for a wide variety of reasons can be at risk.

In this case, the vulnerable individual was a 50-year old man who had suffered a traumatic brain injury and who was subsequently coerced into marrying an ex-girlfriend who he had earlier broken up with because he did not want to marry her.

What Happened?

The man at the center of this dispute sustained a catastrophic brain injury on June 18, 2011, after which he remained in a coma for 18 days. He was eventually released into the care of his two sons in late October 2011. They received extensive training on how to care for the man and how to assist in his recovery.

Three days after the man was released into the care of his children, he disappeared from their home, without his medication. Understandably, they were very concerned and spent the day looking for him. By the time they were able to track him down, later that evening, they discovered the man had married his former “on again off again” girlfriend, with whom he had previously lived, but from whom he had split weeks before the accident.

While members of the woman’s family had attended the wedding, none of the man’s friends or family had been present at the ceremony and had not been notified that it was going to take place.

The man’s two sons brought this matter to court, on the grounds that the marriage was void ab initio because the man lacked the capacity necessary to enter into a marriage.

Mental Capacity for Marriage

The test for determining whether someone has the capacity to marry was summarized by the British Columbia Court of Appeal in Ross-Scott v. Potvin:

A person is capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and duties and responsibilities it creates.  The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs.  Delusional thinking or reduced cognitive abilities alone may not destroy an individual’s capacity to form an intention to marry as long as the person is capable of managing their own affairs.

In this case, the court noted that it had to strike a balance between preserving the man’s personal autonomy and his right to choose, versus the possibility that he did not fully appreciate how marriage would affect his legal status or contractual obligations.

The court additionally noted that there was a heavy burden on the applicants to ensure that his autonomy was respected, and that courts should only reject a person’s autonomy “in the clearest of cases” where the individual in question lacks a “clear, free and personal choice.” Where consent is an issue in the context of a marriage, a court will only annul that marriage if the individual does not understand the nature of the marriage contract and the duties flowing from it.

Capacity is a very fact-specific question and the relevant time period in determining an individual’s capacity to make a particular decision is the time at which the decision is made.

The Medical and Layperson Evidence

A significant amount of medical evidence around the man’s capacity was introduced at trial through expert evidence and medical reports of multiple physicians and medical professionals, as well as layperson evidence by the two sons and other friends and family members.

The court noted that:

  • The consensus of opinion from medical experts was that the man lacked the ability to understand the responsibilities or consequences arising from a marriage and also lacked the ability to manage his own property and personal affairs following the accident;
  • The pre-release medical summary prepared by the hospital where he was cared for following the accident noted that the mans’ brain injury affected his ability to recognize his cognitive impairments and that this impaired awareness made it difficult for him to fully experience what was happening around him and made it hard for him to infer the consequences of his actions;
  • A certificate of incapacity to manage property and personal care was issued, and the man’s sons ultimately became his guardians;
  • The evidence of the lay witnesses supported the opinions of the medical experts. For instance, one of the man’s friends testified that he took the man to Cuba following the accident to “give [the sons] a break”, and, while on the vacation, he had to make sure that the man did not wander away or forget to eat. He also testified that the man had to hold his left hand up and had to drag his foot when he tried to move.

The Decision on Capacity

The court noted that the evidence was clear that:

  • Before his accident, the man understood and appreciated the consequences and responsibilities of marrying the woman and had decided not to do so;
  • As early as December 16, 2010 (about six months prior to the accident), the man and woman had signed a “Property Settlement Agreement” which stated that the man would purchase the woman’s 50% interest in their matrimonial home;
  • The man did ultimately purchase the woman’s 50% interest in their matrimonial home;
  • Notwithstanding that the woman continued to live in the matrimonial home with the man because he was her surety following a drunk driving charge, the two did not reconcile after the Property Settlement Agreement was signed;
  • The pair had been sleeping in separate bedrooms as recently as 3 weeks prior to the man’s accident;
  • After the woman was arrested for breach of her recognizance in June 2011 (for consuming alcohol), her two daughters replaced the man as the woman’s surety; and,
  • One of the sons had been at the man’s home on the morning of the accident and noticed that none of the woman’s possessions were in the house at that time. The man told the son that “he would not be going back to her”.

The court noted that:

In my view, the evidence overwhelmingly supports a finding that [the man] had not only made up his mind not to marry [the woman] prior to the accident but also that he did not have the requisite mental capacity to marry [the woman] following his accident…

The court also rejected the evidence of the woman and her relatives about the man’s actions and behaviours on the wedding day. Their evidence was inconsistent with both the medical evidence and the observations of disinterested laypersons.

Ultimately, the court concluded that:

…[the man] did not have the requisite capacity to marry [the woman] on October 24, 2011.  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.  In the circumstances, I am declaring that the marriage is void ab initio.

At Duncan, Linton LLP in Waterloo, we have been providing exceptional legal services for over 150 years. We rely on our multidisciplinary focus and experience in both estates law and family law to provide guidance and advice to clients who find themselves in challenging disputes, including disputes where contentious matters such as elder abuse or questions about mental capacity may be in issue.

We pride ourselves on our reputation for achieving optimal results for our family law clients in a timely and cost-effective fashion. Our family lawyers guide our clients through Ontario’s legal system and work hard to protect their rights and interests. Call us at (519) 886-3340 or contact us online for a consultation.