Marriages between the elderly can give rise to specific concerns, as adult children may question the validity of the marriage, such as whether the individuals had the capacity to decide to marry. This can be significant, since cognitive impairments can render individuals vulnerable to abuse, including predatory marriages, where one seeks to benefit from the impairment, whether from age, dementia, or other conditions.

Individuals are Presumed to be Capable to Marry

Section 7 of the Marriage Act addresses mental capacity and states that “no person shall issue a licence to or solemnize the marriage of any person who, based on what he or she knows or has reasonable grounds to believe, lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason”. Tanti v. Tanti et al. revolved around the issue of the husband’s capacity, following his adult son’s allegations about the nature of the marriage. Paul and Sharon met in 2014. In January 2019, on his 89^th birthday, Paul asked Sharon to marry him. Paul’s son, Raymond, was unsupportive of the couple’s relationship, and Sharon was hesitant to marry Paul, worried that Raymond would be angry. In June 2019, Paul again asked Sharon to marry him, and this time she agreed, and the pair were married in July. In August, while Sharon was outside of the country, Raymond brought an application that sought, among others, a declaration that Paul is incapable of managing property and personal care and guardianship of Paul’s property and person. Raymond claimed that Paul had been manipulated and that his hired caregiver, Sharon, had misappropriated his funds.

Raymond’s attack on the validity of the marriage is based on his claim that Paul does not have the capacity to marry. Courts have accepted that “one is presumed capable unless and until the presumption is legally rebutted”. In the face of a legal marriage, he had the burden of establishing that Paul lacked capacity at the time of the marriage. In Reynolds v. Reynolds, the court discussed that there needed to be more than a mere preponderance of evidence and that it needed to be sufficiently clear and definite. Additionally, here Justice Mandhane explained that in the absence of any allegation of fraud or duress, Sharon’s motivations for pursuing a relationship with Paul were irrelevant.

Courts Must Balance Individual Autonomy Against the Vulnerability of Age

Regarding capacity, the judge explained that courts “are asked to balance individual autonomy against the vulnerability that can come with age or disability”. In Hunt v. Worrod, the judge explained that an individual’s autonomy needs to be respected, and that this autonomy should only be rejected “in the clearest of cases, where an individual lacks a ‘clear, free and personal choice”. Additionally, Tanti recognized that the capacity is fluid and is “decision, time, and situation specific”. This is because the court in Costantino v. Costantino made clear that a person’s level of capacity can fluctuate over time. The relevant point in time for evaluating an individual’s capacity is the time when the decision is made. Additionally, the threshold for legal capacity varies across different areas of law and must be applied to the specific decision at issue. As Justice Mandhane noted, courts have held that the legal capacity that is required to marry is lower than the capacity needed to execute a will or grant a power of attorney.

The judge looked to Chertkow v. Feinstein for the test to determine whether an individual has the capacity to enter into a marriage. That case confirmed that a person must understand the nature of the marriage contract and the duties and responsibilities that it creates. Moreover, the threshold of understanding of the marriage contract is not onerous and does not require a high degree of intelligence to comprehend. As the court in Lacey v. Lacey (Public Trustee of) noted, the parties need to agree to live together and love one another to the exclusion of all others. In addition, individuals with cognitive impairments can still be competent to marry. In one case, Justice Armstrong stated that an inability to manage one’s financial affairs does “not necessarily impact a person’s ability to consider the importance of a marriage contract consciously”. While an individual may be unable to make certain life decisions, they may still form an intention to marry and have “the ability to proceed through a marriage ceremony”. Justice Mandhane explained that the overall context of their relationship was relevant to assessing Paul’s capacity to marry Sharon.

Judge is Cautious on Relying on Expert Evidence

Raymond sought to rely on evidence from several doctors who assessed Paul after the marriage. However, the judge first cautioned that because dementia is a progressive disease in which individuals lose their abilities over time, it was necessary to approach retroactive assessments of Paul’s capacity with caution. On that basis, the judge excluded the evidence of the May 2020 assessment, since that was not “sufficiently connected in time” to the marriage. However, other assessments occurred within six months of the marriage, making them relevant. Yet, Sharon argued that the evidence from the three different doctors who conducted the assessments should not be given much weight. Justice Mandhane agreed, noting that the experts’ opinions were not contemporaneous with the marriage.

In some cases, their retrospective assessments occurred more than a year after the marriage and were based on a single interaction. There was also concern that their capacity assessments were influenced by Raymond’s unproven allegations about the relationship and that Sharon had misappropriated funds. The judge concluded that the expert evidence about Paul’s marriage capacity should not carry any weight.

Husband Understood the Nature of the Marriage Contract

Given the lack of reliable expert evidence about Paul’s capacity, Justice Mandhane looked to several factors relating to capacity in the period of time leading up to and immediately after the wedding. The first consideration was the couple’s relationship before their marriage. She easily concluded that this was not a case of a “rush to the altar”. The pair had been in a long-term relationship for over five years and identified themselves as a couple to their friends. Raymond portrayed Sharon unfavourably, alleging she was a hired caregiver who misappropriated Paul’s funds. But there was no evidence to support those allegations. This was not a case of a predatory marriage. Without any evidence of duress or proof that Paul was pressured into the marriage, the fact that Sharon benefited financially from the relationship was irrelevant to Paul’s capacity to marry.

The second factor concerned Paul’s cognitive capacity, leading up to and immediately after the marriage. Importantly, he was not diagnosed with dementia before the marriage, nor was he found to be incapable of managing his property or looking after himself. He was still living independently in his home. There was no firm evidence to indicate that his cognitive capacity was diminished during the marriage, such that he could not make decisions about his day-to-day affairs or living arrangements. Instead, the evidence showed that Paul’s capacity was beginning to diminish, but not to the extent that Raymond claimed. The judge also considered Paul’s understanding of the marriage ceremony, the vows and their implications. Under this factor, the judge recognized that neither the officiant nor any witnesses at the ceremony showed any concern about Paul’s ability to understand the marriage. There were also indications he appreciated the consequences of the marriage. After the marriage, he adjusted his affairs to be consistent with Sharon becoming his life partner.

The last factor is Paul’s interactions with professionals contemporaneous with the marriage. Days after the marriage, Paul had a lawyer prepare a power of attorney in favour of Sharon. The lawyer met with Paul alone, took his instructions, and concluded that Paul had the capacity to sign the power of attorney and understood the consequences of his decision. Justice Mandhane placed significant weight on this evidence. Overall, there was no evidence that Sharon was ever Paul’s hired caregiver. The judge concluded that Raymond did not have sufficient evidence to show that it was more likely than not that Paul could not marry and instead found that the marriage was valid.

Change in Marital Status Has Significant Consequences

The party who is challenging a marriage has the burden of establishing that the spouse lacked the capacity to marry. Marital status will be relevant to how their estate is administered. This case illustrates how family law, estate law, and elder law can intersect with significant consequences, including an impact on an individual’s autonomy.

NULaw: Trusted Toronto Family and Estate Lawyers

Matters involving the capacity to marry require a careful balancing of an individual’s personal autonomy against the vulnerability that can accompany age or cognitive impairment, with significant consequences for both family law and estate planning. If you are concerned about a family member’s capacity to enter into a marriage, or if you need to protect a marriage that is being challenged, the dedicated legal team at NULaw in Toronto can provide the guidance you need. We excel in navigating these complex intersections of family and estate matters. You can reach us online or at 416-481-5604 to book a consultation today.