As the Canadian population continues to age, our country is confronting a myriad of legal and health care issues, including the alarming phenomenon of predatory marriages. A predatory marriage often describes a situation where a younger person takes advantage of an elderly or vulnerable person for their finances. Advocates note that our elderly population has acquired massive wealth, largely from real estate, meaning there is large incentive to target older persons, especially with dementia or other mental conditions. Under estate law in Alberta, British Colombia, and Quebec, marriage does not immediately revoke a legal will, though it does in Ontario. Fortunately, a recent Ontario decision may provide enhanced protection for vulnerable and elderly persons subject to predatory marriages.
In 2011, 50-year-old Kevin Hunt suffered a catastrophic head injury following an ATV accident. Hunt was airlifted to a Sudbury hospital and put on life support. He was in a coma for 18 days and spent four months in the hospital. He was released into the care of his two sons. However, on October 24, 2011, three days after leaving the hospital, he made an unexpected decision to marry his former girlfriend Kathleen Anne Worrod at a motel in Novar, Ontario. On the day of the wedding, Hunt’s two sons called the police after they had unsuccessfully attempted to locate their father. By the time they found him, he was already married. There was a “secret wedding” and Hunt gave Worrod rights to his growing landscape business, his home, and his expected $1 million personal injury settlement. After marrying, the parties never lived together. Instead, Mr. Hunt lived with his two sons.
Ms. Worrod and Mr. Hunt had an on-and-off relationship prior to the accident. They met online in 2009 and bought a house together in 2010. Eight months later, the parties separated and signed a property settlement agreement giving Mr. Hunt sole ownership of the house. They had clearly separated at the time of the accident.
Mr. Hunt’s sons filed an application to void the marriage on the grounds that Mr. Hunt lacked the capacity to marry. Six years after the marriage, the matter came before Superior Court Justice Edward J. Koke. The relevant legislation is section 7 of Ontario’s Marriage Act, which indicates that no one shall solemnize a 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”. Where lack of capacity is established, the marriage is void – as if it never happened. The common law test for determining whether a person has capacity, summarized in a BC decision called Ross-Scott v Potvin, is whether an individual understands the nature of the marriage contract and the duties flowing from it. Justice Koke noted an important tension, namely that “in determining whether a person has the capacity to enter into a marriage contract, the tension is between preserving Mr. Hunt’s personal autonomy and the right to choose how to spend the balance of his life against the possibility that he did not fully appreciate how marriage affected his legal status or contractual obligations”. He further noted that a court should only reject a person’s autonomy in the clearest of cases, where an individual lacks a “clear, free and personal choice”.
Expert evidence was central to the case. Eighteen days before his release, medical experts and hospital staff reports indicated, inter alia, that Mr. Hunt showed significant impairments in his executive functioning, including his ability to make decisions, solve problems, plan, organize, and execute tasks. A clinical psychologist indicated that he had amnesia and experienced difficulties with impulse control and judgment. A doctor said he was increasingly malleable and easily influenced using cuing and emotional stimulation, including sexual relations. Mr. Hunt admitted to the doctor that much of the desire to spend time with Ms. Worrod was driven by his need for sexual relations with her. The doctor noted that, at the time of marriage, Mr. Hunt was “significantly cognitively impaired and unable to make decisions that would affect his life”. Ultimately, he was found by a capacity assessor to be incapable of managing property, health care, nutrition, shelter, and safety.
Lay persons also testified, including Ms. Worrod, who claimed that Mr. Hunt was not confused when the ceremony took place. Justice Koke rejected the testimony of Ms. Worrod and her relatives. Ultimately, he found that Mr. Hunt made up his mind not to marry Ms. Worrod before the accident and he did not have the requisite mental capacity to marry Ms. Worrod following the accident as he was incapable of caring for both his property and personal well-being.
Mr. Hunt’s family lawyer noted that this decision indicates that courts are recognizing the rights of vulnerable persons. Traditionally, Canadian case law has established that an individual will have capacity to marry if he or she has control over personal care. However, in coming to his conclusion, Justice Koke relied on a BC decision which considered a person’s ability to manage property as relevant to the capacity to marry. While this decision would seem to provide increased protections for elderly people subject to predatory marriages, will this elevated standard create barriers for persons with disabilities who are attempting to enter consensual marriages? To avoid these delicate human rights issues and contentious litigation, Ontario might be wise to implement estate legislation similar to other provinces in Canada.