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Court Finds that Boxer George Chuvalo Lacks the Capacity to Decide whether to Reconcile

He was a legendary boxer who fought over 93 fights throughout his 22-year career, including an infamous match against Muhammad Ali. Now, at 80 years old, George Chuvalo is still making headlines, but unfortunately not for his boxing career.

Recent media articles[1] have reported on Chuvalo’s significant cognitive decline and his children’s fight to recognize their father’s expressed wishes on his behalf. Specifically, over the last two years, Chuvalo’s children have been in a fierce legal battle against their stepmother, Joanne Chuvalo, wherein they commenced divorce proceedings on behalf of Chuvalo under a power of attorney.

Joanne seeks to remain married. In their Application, the children, on behalf of Chuvalo, reportedly raised allegations of kidnapping, brainwashing, extortion, and reckless spending and alleged that Joanne preyed on Chuvalo’s vulnerable mental state to “extort cash money”.[2]

The Trial

On January 8, 2018, a three-day trial began which centered on the issue as to whether Chuvalo had the capacity to decide whether to divorce or reconcile from Joanne.[3] At the outset of the trial, the parties agreed that the evidence demonstrated Chuvalo lacked the capacity to instruct counsel and the Office of the Public Guardian and Trustee was appointed his representative pursuant to rule 4(3) of the Family Law Rules.[4]

In her decision dated January 12, 2018, Justice Kitely ruled that Chuvalo “does not have capacity to decide whether to reconcile” with Joanne and further noted that she need not decide whether he has the capacity to divorce.[5]

Justice Kiteley relied on the expert opinions of Dr. Richard Shulman, a geriatric psychiatrist, and Dr. Heather Gilley, a geriatrician. Dr. Shulman set out the legal criteria applicable in assessing whether an individual possesses the requisite decisional capacity to make a particular decision:

  1. The ability to understand information relevant to making the decision; and
  2. The ability to appreciate the consequences of making the decision or not.

Dr. Shulman testified that earlier in the spring of 2017, Chuvalo was able to understand and appreciate what he was doing, why he was doing it, and whether he wanted to do it in regards to the divorce proceedings. He explained that Chuvalo had an adequate understanding that he was then separated and pursuing a divorce, and he consistently indicated that divorce, rather than reconciliation, was his preferred option.[6]

Later that year, in November of 2017, Dr. Shulman again assessed Chuvalo and noted that his cognitive ability had sharply declined and that he was no longer able to “appreciate the consequences of his choices in regard to the matrimonial proceedings” which involve a “realistic appraisal of outcome and justification of choice.”[7] Justice Kiteley accepted the evidence and expert opinion of Dr. Shulman.[8]

Analysis

Justice Kiteley began her analysis with a review of the decision in Calvert v. Calvert, which dealt primarily with the issue of whether the applicant wife had the capacity to form the intention to separate from her husband. In that case, the Court relied on the expert evidence of Dr. Molloy in finding that the applicant had capacity to separate from her husband. Dr. Molloy opined that to be competent to make a decision, a person must: understand the context of the decision; know his or her specific choices; and appreciate the consequences of the choices.[9]

Her Honour cited to Banton v. Banton and Re Sung Estate, for the following principles, respectively: “an individual will not have the capacity to marry unless he or she is capable of understanding the nature of the relationship and the obligations and responsibilities it involves”[10] and “a person must understand the nature of the marriage contract, the state of previous marriages, one’s children and how they may be affected.”[11]

Justice Kiteley also relied on the principle espoused in the recent decision of Hunt v. Worrod[12]:

The consensus of opinion from the medical experts and witnesses, evidence which I note was uncontradicted by other medical experts, is that Mr. Hunt 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 as a result of the injuries he sustained on June 18, 2011.

The Court concluded that the requirement that an individual understand and appreciate the consequences of making or not making a decision to reconcile were consistent with the medical parameters outlined in Dr. Shulman’s report as well as the jurisprudence (as outlined above).[13]

Justice Kiteley found that Chuvalo expressed a wish to live with his wife, but explained that “there is no evidence that he understood whether there would be consequences to a decision to ‘live with’ his wife. Indeed, there are consequences such as changing the financial status quo between them . . . There are other consequences such as the emotional impact if the attempted reconciliation fails.”[14]

Counsel for Joanna submitted that there was no evidence that Chuvalo ever intended to separate. The Court held that by finding that Chuvalo lacked the capacity to decide whether to reconcile, it was implicit that there was a separation. Her Honour did not decide whether Chuvalo did separate from Joanna, and held that if it was an issue, it would be addressed in a future trial.

In early March, the parties will attend a case conference to discuss the next steps in the proceeding. At the close of trial, Justice Kiteley encouraged the parties to focus on Chuvalo’s best interests and “bury the hatchet and co-operate to develop a plan that will work in the best interests of George in his remaining years while he continues to experience inevitable decline.”[15] Her Honour found that Joanne was not successful and was not entitled to costs.

In a separate proceeding, Joanne seeks guardianship of her husband and disputes the validity of the power of attorney granted to Chuvalo’s two children.[16]

Commentary

Chuvalo’s circumstances are not unfamiliar, particularly in a population that is aging rapidly. With age and longevity comes an increase in the occurrence of medical issues affecting cognition, such as dementia and other conditions involving reduced functioning and capability. Chuvalo is part of a growing population whose capacity to marry or divorce may become contested. The issue of capacity to marry and divorce is one that is evolving in the law.

Historically, courts have viewed marriage as a ‘simple’ contract, not requiring a high degree of intelligence to comprehend. This same threshold for capacity to marry has been equated with the capacity to divorce.[17]

The issue of capacity to marry and divorce is of increasing importance, particularly since marriage and divorce carry with them significant financial and property implications. A more recent stream of cases,[18] some of which are outlined above, appear to be moving in the direction of developing a more fulsome test for capacity to marry which reflects and accords with the real-life financial implications of marriage or divorce.

[1] The Toronto Star: “The fight over boxing legend George Chuvalo”, [“Boxing Legend George Chuvalo”] & The Toronto Star: “George Chuvalo lacks capacity to decide on his marriage, judge rules”,  [“Chuvalo Lacks Capacity to Decide on Marriage”]

[2] Boxing Legend George Chuvalo

[3] Chuvalo v. Chuvalo, 2018 ONSC 311, para. 16 [Chuvalo]

[4] Chuvalo, paras. 4-5

[5] Chuvalo, paras. 16-17.

[6] Chuvalo, para. 34.

[7] Chuvalo Lacks Capacity to Decide on Marriage; Chuvalo, paras. 33, 35.

[8] Chuvalo, paras. 44-48.

[9] Chuvalo, para. 52.

[10] Chuvalo, para. 55.

[11] Chuvalo, para. 56.

[12] Hunt v. Worrod, 2017 ONSC 7397

[13] Chuvalo, para. 59.

[14] Chuvalo, paras. 60-61.

[15] Chuvalo, para. 69.

[16] Chuvalo Lacks Capacity to Decide on Marriage

[17] Calvert (Litigation Guardian of) v. Calvert, 1997 CanLII 12096 (ON S.C.), at paras 57-58, aff’d 1998 CarswellOnt 494; 37 O.R. (3d) 221 (C.A.), leave to appeal to S.C.C. refused May 7, 1998; A.B. v. C.D., 2009 BCCA 200, leave to appeal to SCC refused in 2009CarswellBC 2851; Wolfman-Stotland v. Stotland, 2011 BCCA 175

[18] Banton v. Banton, 1998 CarswellOnt 3423, 164 D.L.R. (4th) 176 (Ont Gen Div); Barret Estate v. Dexter (2000), 34 E.T.R. (2d) 1, 268 A.R. 101 (Alta Q.B.); Feng v Sung Estate, (2003) 1 ETR (3d) 296, 37 RFL (5th) 441 (Ont SCJ), affd 11 ETR (3d) 169, 2004 CarswellOnt 4512 (ONCA);  Devore-Thompson v. Poulain, 2017 BCSC 1289; Hunt v. Worrod, 2017 ONSC 7397

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