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Yet Another May-December Marriage

Tanti v. Tanti[1] is the latest in what has become a long list of cases involving a marriage in which one spouse is much younger than the other. Typically, a child of the older spouse seeks to have the marriage set aside on the ground that the older spouse lacked capacity to marry. In the process, he makes allegations of predation and “gold-digging”. However, Tanti was not a predatory marriage case.

Paul Tanti was an elderly man, who married his much younger live-in companion, Sharon Joseph. They met in 2014 when Paul went to a community organization looking for volunteer assistance with small jobs at his house. Sharon came to help him with some exterior painting. The two became friends, visited tourist sites together and spent time with family and friends. By 2017 they began to refer each other as “companions” when speaking with family, friends, and professionals. In early 2018 Sharon moved into Paul’s house when he expressed a desire for a more intimate relationship. Eventually Paul asked Sharon to marry him when he was 89 years old. Sharon was hesitant initially but later agreed and they were married in July 2019. Witnesses who attended the ceremony testified that Paul was able to answer the minister’s questions clearly and that Paul let them know that he loved Sharon and was happy to be married to her. A photo confirmed the couple’s happiness.

Paul’s son, Raymond came to the house in late July 2019. He disliked Sharon and when he learnt of the marriage he became verbally abusive. He left after the police were called, but he returned again the next day and was still abusive. He left again after the police were called. On the same day Paul and Sharon attended at the office of a solicitor, who met with Paul alone and took instructions about drafting powers of attorney in favour of Sharon. The solicitor determined that Paul had capacity to grant the powers.

Two weeks after the marriage Sharon left for Grenada on a planned two-week trip to visit her extended family. When Raymond learnt that Sharon was away, he met with Paul’s banker who told him that Sharon was now Paul’s attorney,[2] so that he could no longer access his father’s accounts.

Paul then took his father for an urgent assessment by a gerontologist. She found that Paul’s cognitive reasoning was impaired and that he now lacked the capacity to manage his financial and medical affairs. She did not give an opinion on Paul’s capacity to marry, but referred him to another specialist for a second opinion. That gerontologist found that Paul lacked capacity to grant a power of attorney, but did not opine about his capacity to marry. Later this gerontologist gave a retrospective opinion that Paul lacked capacity to marry because he told both gerontologists that he could not recall the marriage. Raymond then got a third opinion from another gerontologist, who opined that Paul lacked capacity to manage his property. Later, in a retrospective opinion, he concluded that Paul probably lacked capacity to marry, since he did not seem to recollect the marriage. The first gerontologist refused to provide a retrospective opinion about Paul’s capacity to marry.

On August 20 2019, Raymond moved Paul to his home out of Toronto and a week later, while Sharon was still out of the country, he brought an application for:

(a) a declaration that Paul was incapable of managing his property and his personal care;

(b) guardianship of Paul and his property;

(c) custody of Paul;

(d) an order permitting him to lease and sell Paul’s house;

(e) an order freezing all bank accounts held jointly by Paul and Sharon; and

(f) an order suspending the power of attorney granted by Paul to Sharon.

In support of his application Raymond alleged that Paul had “become subject to manipulation and perhaps loss and misappropriation of funds at the hands of a hired caregiver, Sharon Joseph”. Raymond also changed the locks on Paul’s house.

Justice Harris granted Raymond’s application in September 2019. After Sharon returned to Canada, she brought a motion to set that order aside. Meanwhile, a section 3 counsel was appointed for Paul and Sharon was added to the application as a party. Paul’s counsel did not take a position on the validity of the marriage, but everyone agreed that by this time Paul lacked capacity to instruct counsel or otherwise to participate in the application.

Mandhane J. presided over a video conference hearing in November and December 2020 to determine the validity of the marriage. She found that there was “absolutely no evidence” that Sharon was a hired caregiver for Paul. In fact, she was employed by a local school board. Nor was there any evidence that supported Raymond’s allegation that Sharon manipulated Paul into entering into a relationship with her. Further, she ever abused or mistreated Paul. And she never stole from Paul or misappropriated his funds.

In discussing the law on capacity to marry, Justice Mandhane referred to some of the recent cases on the matter, as well as other authority.[3] Her Honour also repeated the well-known principles that the test for capacity to marry is a simple one and that understanding the marriage contract does not require a high degree of intelligence. She also recognized that capacity for various purposes is decision, time, and situation specific.

Her Honour admitted the opinions of the three gerontologists, but concluded that they did not carry much weight, because none provided a contemporaneous opinion on Paul’s capacity to marry and their assessments of his capacity to manage his property were largely irrelevant to the issue of capacity to marry. Moreover, she did not give the retrospective opinion of two of the three gerontologists that Paul probably lacked capacity to marry much weight.

Justice Mandhane concluded that Paul had the requisite capacity to marry based on the following factors, which she derived from direct evidence about Paul’s capacity:

(a)     the couple’s relationship before the marriage;

(b)     Paul’s cognitive ability leading up to and immediately after the marriage;

(c)     Paul’s understanding of the marriage ceremony and vows, and the obligations it created; and

(d)     Paul’s interactions with professionals contemporaneous with the marriage.

The parties were in a long-term relationship that developed and deepened over a five-year period. Raymond’s allegations of predation on the part of Sharon were not proved. Paul’s decision to marry Sharon was rational and the fact that Sharon stood to benefit financially from the relationship was irrelevant in the absence of evidence of duress. Further, there was no cogent evidence that Paul lacked the necessary cognitive ability to make decisions about his daily affairs and living arrangement. The evidence showed that Paul understood the marriage ceremony, his vows, and their implications. On the other hand, the evidence of the gerontologists was largely irrelevant. In contrast the evidence of the solicitor to whom Paul gave instructions about powers of attorney in favour of Sharon within four days of the marriage was cogent and proved that Paul was capable of instructing counsel and understood the consequences of his decision to grant the powers of attorney for property and personal care.

Her Honour discounted Sharon’s claim for costs because her approach to the litigation unreasonably increased her costs. However, she did award Sharon full-indemnity costs against Raymond because of his egregious conduct. Her Honour left open the possibility of costs against Raymond’s counsel personally if Sharon wished to pursue that claim.

While the facts did not disclose evidence of predation and I believe that Justice Mandhane correctly found on the evidence that Paul had capacity to marry, this case, like many before it, does highlight the fragility of the capacity to marry “test”. In other contexts, I and others have argued that the test makes it too easy to validate a marriage and this is problematic in modern society in which surviving spouses are granted extensive property rights over the estates of the first spouse to die.[4] I do not question the propriety of such rights, but they can easily be abused by the surviving spouse if she is a predator. For that reason, I drafted legislation that seeks to introduce a stricter test, to abolish the statutory rule that automatically revokes a will when the testator marries, and to curb predatory marriages. I disseminated the draft among a number of law reform bodies and other interested parties. Because various persons continued to express interest in it, I attached it as a Schedule to a blog I posted in 2019 and refer them to that blog.[5]

[1] 2020 ONSC 8063.

[2]The reasons for judgment say that she was Paul’s “power of attorney”, thereby repeating the egregious solecism that has become endemic in the estates world. A power of attorney is a piece of paper in which the grantor appoints a person as his attorney. To call the attorney the grantor’s “power of attorney”, as so many unfortunately do, actually says that she is but a piece of paper!

[3]E.g., Hunt v. Worrod, 2017 ONSC 7397; Ross-Scott v. Potvin, 2014 BCSC 453; and Kimberly Whaley, et al., Capacity to Marry and the Estate Plan (Aurora, Ont., Canada Law Book, 2010). It is somewhat surprising that she did not refer one of the first cases on this kind of marriage, Banton v. Banton (1998), 164 D.L.R. (4th) 176, 1998 CarswellOnt 3423 additional reasons (1998), 164 D.L.R. (4th) 176, 1998 CarswellOnt 4688 (Gen. Div.), in which Cullity J. gave an exhaustive discussion of the test for capacity to marry. Nor did her Honour refer to other important recent cases, such as Devore-Thompson v. Poulain, 2017 BCSC 1289, additional reasons 2018 BCSC 97.

[4] See, e.g., Albert H. Oosterhoff, “Consequences of a January/December Marriage: A Cautionary Tale” (1999), 19 E.T.P.J. 261; Albert H. Oosterhoff, “Predatory Marriages” (2013), 33 E.T.P.J. 24; Kimberly A. Whaley and Albert H. Oosterhoff, “Predatory Marriages – Equitable Remedies” (2014), 34 E.T.P.J. 269; Kimberly A. Whaley and Albert H. Oosterhoff, “Predatory Marriages” (2018), 48 Adv. Q. 253.

[5]“Curbing the Scourge of Predatory Marriages by Legislation”. http://welpartners.com/blog/2019/11/curbing-the-scourge-of-predatory-marriages-by-legislation/ . Posted 12 November 2019.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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