Predatory Marriage: Hunt v. Worrod, 2017 ONSC 7397 (CanLII), http://canlii.ca/t/hpf5n
In Hunt v. Worrod[1], the Ontario Superior Court of Justice considered whether a man incapable of managing his property and personal care had the capacity to marry. The marriage in question took place between Mr. Hunt and his estranged ex-girlfriend, Ms. Worrod (the “Respondent”), just months after Mr. Hunt suffered a catastrophic brain injury rendering him incapable of managing his property and personal care.
The Application was brought on behalf of Mr. Hunt by his two sons, Brad and Justin (the “Applicants”), who are also his guardians of property and of the person. The following issues were put before the Court:
- Whether Mr. Hunt had the capacity to marry Ms. Worrod on October 24, 2011;
- Whether Ms. Worrod had any entitlement to the home by Mr. Hunt; and,
- Whether the Court should make an order permanently prohibiting any contact and communication between Ms. Worrod and Mr. Hunt.
This case comment focuses on the factual circumstances and law as they relate to the issue of whether Mr. Hunt possessed the requisite decisional capacity to marry Ms. Worrod on the date of marriage as well as the factors Justice Koke considered in determining whether a permanent non-contact order was necessary.
Factual Background
On June 19, 2011, at the age of 50, Mr. Hunt sustained a catastrophic brain injury following an ATV accident. He was transported to the hospital, where he remained in a coma for 18 days. Eventually, after five months in the hospital and undergoing extensive occupational and physiotherapy, Mr. Hunt was released to his home into the care of two of his sons, Brad and Justin (the Applicants).[2]
Prior to his accident, Mr. Hunt and Ms. Worrod were involved in an on-and-off again relationship. At the time of the accident, Ms. Worrod was subject to a recognizance in relation to impaired driving and breach of recognizance charges. One of the conditions of her bail was to live with her sureties, who were her two daughters.[3]
In the early morning of October 24, 2011, three days after Mr. Hunt was released from the hospital, he was secretly picked up from his home by Ms. Worrod’s uncle—without the knowledge of his sons—and was brought to Blue Mountain to be married to Ms. Worrod. The Applicants were deeply concerned when they found their father missing, especially since they had received extensive training in caring for him and he did not appear to be in the company of anyone trained to look after his medical needs.[4]
Later that day, the Applicants were able to track down their father’s whereabouts using his credit card history. The police were notified and they located Mr. Hunt at the hotel. Upon attending at the hotel, Justin discovered that his father had been brought to the hotel to marry Ms. Worrod and the wedding had already taken place. Only members of Ms. Worrod’s family were present at the wedding. None of Mr. Hunt’s family or friends, including his sons or his best friend, had been notified about the wedding. Mr. Hunt was brought home by Justin.
Evidence of Mr. Hunt’s Incapacity to Marry
Justice Koke thoroughly examined the significant amount of evidence dealing with the issue of capacity presented at trial. This evidence came both in the form of expert medical testimony and medical reports as well as the oral testimony of lay witnesses.
A number of medical professionals had found that prior to the marriage and shortly after, Mr. Hunt demonstrated the following severe cognitive and physical impairments, including:
- Significant impairments to his executive functioning, such as his ability to make decisions, organize and execute tasks;
- A neurologically based lack of awareness of his deficits and impairments, making it difficult for him to experience fully what is happening around him as well as to infer consequences of events which might jeopardize his personal safety;
- He demonstrated little emotional reactivity as well as apathy, demonstrated by a lack of initiation and motivation;
- He should not be left alone and continued to need supervision for safety reasons as well as to remind him to take his medications;
- His driver’s license was revoked;
- He had difficulty initiating conversation and needed cuing to provide additional information; and,
- He had limited range of motion in his left shoulder, difficulties with balance, some residual left neglect, and his ability to walk was impaired when he performed more than one task at a time.
Justice Koke found that evidence of the lay witnesses called by the Applicants supported the opinion of the medical experts as to Mr. Hunt’s cognitive and physical impairments.[5]
Before his release, Mr. Hunt was assessed by Bill Sanowar, a capacity assessor on two separate occasions. On August 5 2011, Mr. Sanowar found Mr. Hunt to be incapable of managing his property. On October 19, 2011, five days before the marriage, Mr. Sanowar found Mr. Hunt to be incapable of making personal care decisions with respect to the areas of health care, nutrition, shelter, and safety.[6]
Evidence of the Respondent
All of the witnesses Ms. Worrod called to testify were members of her family with the exception of Mr. Hunt and the reverend who performed the marriage ceremony. The Respondent did not call any medical experts.
Justice Koke found that the “picture of Mr. Hunt’s behavior painted by Ms. Worrod and the relatives she called to testify on her behalf was one of almost complete normalcy.”[7] Ms. Worrod and her daughter testified that on the date of marriage, they had not noticed any changes to Mr. Hunt’s personality or any physical limitations. They both stated that he was in good spirits, was joking around with everyone at the wedding, and have a speech thanking people for coming.
Mr. Hunt testified that he was confused as to whether he was still married to Ms. Worrod and thought his sons considered his marriage invalid because they were married at a ski hill and not at a church. He did not remember the names of Ms. Worrod’s two daughters. He said he did not tell any of his family about the wedding, he was not involved in the planning, and he did not remember how he proposed.
The Application
At the heart of the application was the question of whether Mr. Hunt possessed the requisite decisional capacity to enter into the marriage as at the date of the marriage. At the same time, the Court was asked to consider Ms. Worrod’s conduct prior to and following the accident in order to determine whether Mr. Hunt would be safe in the care of Ms. Worrod.
Justice Koke thoroughly analyzed the evidence before him and ultimately concluded that Mr. Hunt did not have the requisite decisional capacity to marry as at the date of marriage. As such, his marriage to Ms. Worrod was set aside and declared void ab initio. His Honour also found that, based on the evidence, a permanent order prohibiting all contact and communication between Ms. Worrod and Mr. Hunt was necessary in the circumstances.
Legal Capacity to Marry
Justice Koke began his analysis by noting that section 7 of the Marriage Act, RSO 1990, c. M. 3, in Ontario restricts persons from issuing a license or solemnizing a marriage of any person who, based on what he or she knows or has reasonable grounds to believe, lacks mental capacity.[8]
His Honour relied on Ross-Scott v. Potvin, 2014 BCSC 435 (“Ross-Scott”), 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 the 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.[9]
In applying the law to the specific facts of the case, Justice Koke observed that “the tension in the analysis 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 and contractual obligations.”[10]
Justice Koke noted that the Applicants bore a heavy burden to ensure that their father’s autonomy was respected. Specifically, His Honour relied on Ross-Scott in outlining that “a court can only annul a marriage due to absence of consent if an individual does not understand the nature of the marriage contract and the duties flowing from it.”[11]
Justice Koke noted that capacity is decision, time and situation specific and one is presumed capable unless and until the presumption is legally rebutted.[12]
His Honour reiterated the necessary distinction between the consent to marry versus capacity to marry, as outlined in Banton v. Banton, 1998 CarswellOnt 3423, 164 D.L.R. (4th) 176 (Ont Gen Div) and reaffirmed in Sung Estate: “a person may consent to marry, but if he or she lacks the capacity to enter into the contract of marriage, the marriage is void ab initio.”[13]
The onus of establishing that Mr. Hunt did not possess the requisite capacity to marry rested with the Applicants, who challenged the marriage.[14]
With respect to the credibility of Ms. Worrod and the evidence she put forward, Justice Koke concluded: “I reject in its entirety this evidence of Ms. Worrod and her relatives with respect to Mr. Hunt’s actions and behaviours on his wedding day. It is inconsistent with all of the medical evidence and the observations of the disinterested witnesses…”[15]
Relying on the evidence presented at trial, Justice Koke found:
[84] In my view, the evidence overwhelmingly supports a finding that Mr. Hunt had not only made up his mind not to marry Ms. Worrod prior to the accident but also that he did not have the requisite mental capacity to marry Ms. Worrod following his accident.
[91] 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.
[104] For the above reasons, I find that Mr. Hunt did not have the requisite capacity to marry Ms. Worrod 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.
With respect to the issue as to whether the Court should make a permanent Order prohibiting any and all contact and communication between Mr. Hunt and Ms. Worrod, Justice Koke concluded that the Applicants’ devotion to the care of their father was in sharp contrast with the actions and behaviours of Ms. Worrod.[16]
His Honour concluded that “any communication, direct or indirect, would be detrimental to Mr. Hunt’s health and recovery for a number of reasons” and made an Order permanently prohibiting all contact between Mr. Hunt and Ms. Worrod, both direct and indirect, and including but not limited to telephone conversations, social media communications and communications through third parties.”
Remarks
Unlike the majority of predatory marriage cases which make it to trial, this case is markedly different since Mr. Hunt is not an older person and he is still living. This meant that, while clearly vulnerable, a consideration of his personal autonomy and his safety and wellbeing moving forward was necessary.
Due to the nature and extent of Mr. Hunt’s injuries from his accident, extensive medical evidence for the period surrounding the marriage was available to the Court. Of particular importance were the contemporaneous capacity assessments with respect to property and personal care which had been conducted and were available to the Court. This is unusual, as predatory marriage cases often involve an older adult who may not require regular medical attention. As a result, there is often limited medical evidence from the period surrounding the marriage available.
Alienation is another common element of predatory marriages, where the unscrupulous opportunist chooses to wedge him or herself in between the older adult and their friends and family. While Ms. Worrod did attempt to alienate Mr. Hunt from his sons and influence his actions, since Justin and Brad are his guardians, they were able to do what they could to protect him and continue to make decisions in his best interest.
—
[1] Hunt v. Worrod, 2017 ONSC 7397 (“Hunt”)
[2] Hunt, para. 1.
[3] Hunt, para. 2.
[4] Hunt, para. 3.
[5] Hunt, para. 99.
[6] Hunt, paras. 20-21.
[7] Hunt, para. 100.
[8] Hunt, para. 8.
[9] Hunt, paras. 9, 83.
[10] Hunt, para. 10.
[11] Hunt, para. 11.
[12] Hunt, para. 13.
[13] Hunt, para. 14.
[14] Hunt, para. 15.
[15] Hunt, para. 102.
[16] Hunt, paras. 147-148.
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Written by: WEL Partners
Posted on: February 15, 2018
Categories: Commentary, WEL Newsletter
Predatory Marriage: Hunt v. Worrod, 2017 ONSC 7397 (CanLII), http://canlii.ca/t/hpf5n
In Hunt v. Worrod[1], the Ontario Superior Court of Justice considered whether a man incapable of managing his property and personal care had the capacity to marry. The marriage in question took place between Mr. Hunt and his estranged ex-girlfriend, Ms. Worrod (the “Respondent”), just months after Mr. Hunt suffered a catastrophic brain injury rendering him incapable of managing his property and personal care.
The Application was brought on behalf of Mr. Hunt by his two sons, Brad and Justin (the “Applicants”), who are also his guardians of property and of the person. The following issues were put before the Court:
This case comment focuses on the factual circumstances and law as they relate to the issue of whether Mr. Hunt possessed the requisite decisional capacity to marry Ms. Worrod on the date of marriage as well as the factors Justice Koke considered in determining whether a permanent non-contact order was necessary.
Factual Background
On June 19, 2011, at the age of 50, Mr. Hunt sustained a catastrophic brain injury following an ATV accident. He was transported to the hospital, where he remained in a coma for 18 days. Eventually, after five months in the hospital and undergoing extensive occupational and physiotherapy, Mr. Hunt was released to his home into the care of two of his sons, Brad and Justin (the Applicants).[2]
Prior to his accident, Mr. Hunt and Ms. Worrod were involved in an on-and-off again relationship. At the time of the accident, Ms. Worrod was subject to a recognizance in relation to impaired driving and breach of recognizance charges. One of the conditions of her bail was to live with her sureties, who were her two daughters.[3]
In the early morning of October 24, 2011, three days after Mr. Hunt was released from the hospital, he was secretly picked up from his home by Ms. Worrod’s uncle—without the knowledge of his sons—and was brought to Blue Mountain to be married to Ms. Worrod. The Applicants were deeply concerned when they found their father missing, especially since they had received extensive training in caring for him and he did not appear to be in the company of anyone trained to look after his medical needs.[4]
Later that day, the Applicants were able to track down their father’s whereabouts using his credit card history. The police were notified and they located Mr. Hunt at the hotel. Upon attending at the hotel, Justin discovered that his father had been brought to the hotel to marry Ms. Worrod and the wedding had already taken place. Only members of Ms. Worrod’s family were present at the wedding. None of Mr. Hunt’s family or friends, including his sons or his best friend, had been notified about the wedding. Mr. Hunt was brought home by Justin.
Evidence of Mr. Hunt’s Incapacity to Marry
Justice Koke thoroughly examined the significant amount of evidence dealing with the issue of capacity presented at trial. This evidence came both in the form of expert medical testimony and medical reports as well as the oral testimony of lay witnesses.
A number of medical professionals had found that prior to the marriage and shortly after, Mr. Hunt demonstrated the following severe cognitive and physical impairments, including:
Justice Koke found that evidence of the lay witnesses called by the Applicants supported the opinion of the medical experts as to Mr. Hunt’s cognitive and physical impairments.[5]
Before his release, Mr. Hunt was assessed by Bill Sanowar, a capacity assessor on two separate occasions. On August 5 2011, Mr. Sanowar found Mr. Hunt to be incapable of managing his property. On October 19, 2011, five days before the marriage, Mr. Sanowar found Mr. Hunt to be incapable of making personal care decisions with respect to the areas of health care, nutrition, shelter, and safety.[6]
Evidence of the Respondent
All of the witnesses Ms. Worrod called to testify were members of her family with the exception of Mr. Hunt and the reverend who performed the marriage ceremony. The Respondent did not call any medical experts.
Justice Koke found that the “picture of Mr. Hunt’s behavior painted by Ms. Worrod and the relatives she called to testify on her behalf was one of almost complete normalcy.”[7] Ms. Worrod and her daughter testified that on the date of marriage, they had not noticed any changes to Mr. Hunt’s personality or any physical limitations. They both stated that he was in good spirits, was joking around with everyone at the wedding, and have a speech thanking people for coming.
Mr. Hunt testified that he was confused as to whether he was still married to Ms. Worrod and thought his sons considered his marriage invalid because they were married at a ski hill and not at a church. He did not remember the names of Ms. Worrod’s two daughters. He said he did not tell any of his family about the wedding, he was not involved in the planning, and he did not remember how he proposed.
The Application
At the heart of the application was the question of whether Mr. Hunt possessed the requisite decisional capacity to enter into the marriage as at the date of the marriage. At the same time, the Court was asked to consider Ms. Worrod’s conduct prior to and following the accident in order to determine whether Mr. Hunt would be safe in the care of Ms. Worrod.
Justice Koke thoroughly analyzed the evidence before him and ultimately concluded that Mr. Hunt did not have the requisite decisional capacity to marry as at the date of marriage. As such, his marriage to Ms. Worrod was set aside and declared void ab initio. His Honour also found that, based on the evidence, a permanent order prohibiting all contact and communication between Ms. Worrod and Mr. Hunt was necessary in the circumstances.
Legal Capacity to Marry
Justice Koke began his analysis by noting that section 7 of the Marriage Act, RSO 1990, c. M. 3, in Ontario restricts persons from issuing a license or solemnizing a marriage of any person who, based on what he or she knows or has reasonable grounds to believe, lacks mental capacity.[8]
His Honour relied on Ross-Scott v. Potvin, 2014 BCSC 435 (“Ross-Scott”), 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 the 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.[9]
In applying the law to the specific facts of the case, Justice Koke observed that “the tension in the analysis 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 and contractual obligations.”[10]
Justice Koke noted that the Applicants bore a heavy burden to ensure that their father’s autonomy was respected. Specifically, His Honour relied on Ross-Scott in outlining that “a court can only annul a marriage due to absence of consent if an individual does not understand the nature of the marriage contract and the duties flowing from it.”[11]
Justice Koke noted that capacity is decision, time and situation specific and one is presumed capable unless and until the presumption is legally rebutted.[12]
His Honour reiterated the necessary distinction between the consent to marry versus capacity to marry, as outlined in Banton v. Banton, 1998 CarswellOnt 3423, 164 D.L.R. (4th) 176 (Ont Gen Div) and reaffirmed in Sung Estate: “a person may consent to marry, but if he or she lacks the capacity to enter into the contract of marriage, the marriage is void ab initio.”[13]
The onus of establishing that Mr. Hunt did not possess the requisite capacity to marry rested with the Applicants, who challenged the marriage.[14]
With respect to the credibility of Ms. Worrod and the evidence she put forward, Justice Koke concluded: “I reject in its entirety this evidence of Ms. Worrod and her relatives with respect to Mr. Hunt’s actions and behaviours on his wedding day. It is inconsistent with all of the medical evidence and the observations of the disinterested witnesses…”[15]
Relying on the evidence presented at trial, Justice Koke found:
[84] In my view, the evidence overwhelmingly supports a finding that Mr. Hunt had not only made up his mind not to marry Ms. Worrod prior to the accident but also that he did not have the requisite mental capacity to marry Ms. Worrod following his accident.
[91] 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.
[104] For the above reasons, I find that Mr. Hunt did not have the requisite capacity to marry Ms. Worrod 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.
With respect to the issue as to whether the Court should make a permanent Order prohibiting any and all contact and communication between Mr. Hunt and Ms. Worrod, Justice Koke concluded that the Applicants’ devotion to the care of their father was in sharp contrast with the actions and behaviours of Ms. Worrod.[16]
His Honour concluded that “any communication, direct or indirect, would be detrimental to Mr. Hunt’s health and recovery for a number of reasons” and made an Order permanently prohibiting all contact between Mr. Hunt and Ms. Worrod, both direct and indirect, and including but not limited to telephone conversations, social media communications and communications through third parties.”
Remarks
Unlike the majority of predatory marriage cases which make it to trial, this case is markedly different since Mr. Hunt is not an older person and he is still living. This meant that, while clearly vulnerable, a consideration of his personal autonomy and his safety and wellbeing moving forward was necessary.
Due to the nature and extent of Mr. Hunt’s injuries from his accident, extensive medical evidence for the period surrounding the marriage was available to the Court. Of particular importance were the contemporaneous capacity assessments with respect to property and personal care which had been conducted and were available to the Court. This is unusual, as predatory marriage cases often involve an older adult who may not require regular medical attention. As a result, there is often limited medical evidence from the period surrounding the marriage available.
Alienation is another common element of predatory marriages, where the unscrupulous opportunist chooses to wedge him or herself in between the older adult and their friends and family. While Ms. Worrod did attempt to alienate Mr. Hunt from his sons and influence his actions, since Justin and Brad are his guardians, they were able to do what they could to protect him and continue to make decisions in his best interest.
—
[1] Hunt v. Worrod, 2017 ONSC 7397 (“Hunt”)
[2] Hunt, para. 1.
[3] Hunt, para. 2.
[4] Hunt, para. 3.
[5] Hunt, para. 99.
[6] Hunt, paras. 20-21.
[7] Hunt, para. 100.
[8] Hunt, para. 8.
[9] Hunt, paras. 9, 83.
[10] Hunt, para. 10.
[11] Hunt, para. 11.
[12] Hunt, para. 13.
[13] Hunt, para. 14.
[14] Hunt, para. 15.
[15] Hunt, para. 102.
[16] Hunt, paras. 147-148.
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