The Ontario Court of Appeal recently released a decision in the case of Tanti v. Tanti, 2021 ONCA 71, which was an appeal from a decision in large part on the test for capacity to marry. At the heart of the matter was a son who characterized his late father’s marriage to a younger woman as a “predatory marriage”, the court disagreed, and the Court of Appeal of Ontario upheld that decision.
A predatory marriage may be defined as one where one party may be vulnerable to abuse because of diminished capacity, whether due to advanced age or a diagnosis like dementia. If a person does not have the capacity to make the decision to marry, unscrupulous opportunists can prey on them for financial profit. If they marry, the opportunist can profit upon their spouse’s death, often to the exclusion of their spouse’s children or other family members and loved ones. These types of marriages have been a concern for many Elder Law practitioners as clients who suffer from cognitive impairment may be vulnerable to this type of abuse.
Court decisions on predatory marriage cases have been very rare, as historically the level of capacity that the court required, as set out in the Banton case, was quite low. In other words, the bar for incapacity is high and few litigants would have been confident there was sufficient incapacity for their argument to succeed. Justice Mandhane who adjudicated the lower court decision in Tanti, made this observation:
Somewhat surprisingly, only a handful of Canadian courts have considered the validity of such marriages. This is one of those cases, and it highlights emerging issues that lie at the intersection of family law, estates law, and elder law. It requires the court to answer deceptively simple questions that have serious implications for the parties.
A summary of the facts are as follows: Sharon Joseph (“Sharon”) and Paul Tanti (“Paul”) met in 2014. Paul expressed a desire to enter into a more intimate relationship with Sharon, so Sharon moved into Paul’s house in 2018. Paul’s son, Raymond Tanti (“Raymond”), did not like his father’s relationship with Sharon and encouraged him to end it. Nevertheless, Paul and Sharon were married on July 27, 2019 in a small ceremony that did not include Raymond. After the marriage, Sharon went on a trip and that is when Raymond sought guardianship over Paul. Raymond brought an application attacking the marriage on the basis that his father lacked the requisite capacity to marry.
In her decision, Justice Mandhane, laid out the legal framework for the test for capacity to marry:
The test for capacity to marry is a simple one. The parties must understand the nature of the marriage contract, and the duties and responsibilities that flow from it:Chertkow v. Feinstein (Chertkow), 1929 CarswellAlta 23, 24 Alta. L.R. 188 (Alta. C.A.), at p. 191. Understanding the content of the marriage contract does not require a high degree of intelligence; the parties must agree to live together and love one another to the exclusion of all others: Lacey v. Lacey,  B.C.J. No. 1016 (B.C. S.C.).
In coming to the conclusion that Paul did have the requisite capacity to marry Sharon, Justice Mandhane considered their relationship prior to marriage, Paul’s cognitive capacity leading up to and immediately after the marriage, Paul’s understanding of the marriage ceremony, vows and the obligations it created and Paul’s interactions with professionals contemporaneous to the marriage.
In the end, she found that Paul and Sharon were mature adults in a long term relationship who made the decision to get married free of any outside influence. Her Honour was careful to point out that there was no evidence to suggest that Sharon misappropriated Paul’s funds and that much of Raymond’s evidence against Sharon relied on damaging stereotypes about Black and Caribbean immigrant women.
Raymond appealed to the Court of Appeal for Ontario and that Court dismissed the appeal. Moreover, the Court of Appeal confirmed that the trial judge instructed herself properly on the test for the validity of marriage, thus confirming the test set out in the lower court’s decision.
In recent years, we have seen what could be considered a move to a test that might have been considered more rigorous than to the test set out in Banton. Specifically, in December 2017, the Ontario Superior Court of Justice ruled on Hunt v Worrod, 2017 ONSC 7397 (Hunt), wherein the family of a man suffering from a brain injury sought annulment of what the media called a “predatory marriage.” In that case, the court applied the legal test for capacity to marry set out in Ross-Scott v. Groves Estate, 2014 BCSC 435 at para 177:
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 Hunt v. Worrod, the court found the evidence showed that, prior to his accident, with full understanding of the legal ramification of marriage, Mr. Hunt had decided not to marry Ms. Worrod. Further, the court accepted the evidence provided by medical professionals involved in Mr. Hunt’s rehabilitation that showed that he ‘lacked the ability to understand the responsibilities or consequences arising from a marriage and that he lacked the ability to manage his own property and personal affairs’ at the time of the marriage.
Since 2017, some in Elder Law noted a slight shift in the legal test for the capacity to marry, which moved away from the lower threshold of merely understanding the nature of the contract and seemingly added the additional requirement of being capable to manage one’s own affairs. Coupled with the change to the Succession Law Reform Act which will come into effect in January which removes the section that revokes a Will on marriage, it seemed that there was a shift towards implementing measures to protect those who were vulnerable to predatory marriage.
It therefore, can be seen as a step backwards, for the Ontario Court of Appeal to confirm that the capacity to marry revolves around a simple question of whether one can understand the nature of the marriage contract. A low threshold test for the capacity to marry can be seen to encourage perceived predatory marriages. The question remains whether the law can find a balance between the need to protect vulnerable people, while ensuring personal autonomy.
If you are an Elder Law practitioner considering whether or not to adjudicate a potential case involving predatory marriage you must be very careful to be as detailed as possible in understanding the facts surrounding the impugned marriage, as these types of cases are very fact driven. However, a review of the recent cases would reveal that parties who were successful on their annulment claims on the basis of incapacity have almost always relied on a comprehensive expert report. It does not appear to be enough to have simply a doctor’s evidence, the court will require an expert to speak on the doctor’s diagnosis and specifically how the person’s cognitive impairment relates to the legal test for annulment.
From a family law perspective, this decision reminds practitioners that when advising their clients on bringing claims to annul a marriage on the basis of incapacity, it is wise to consider alternatives. It may be prudent to include arguments in the alternative such as an unequal division of property claim or an unjust enrichment claim or an equalization payment under section 5(3) of the Family Law Act to avoid improvident depletion of net family property so that you can protect the vulnerable person’s assets in the event that you are unsuccessful in your attempt to invalidate the marriage.