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First Comes Love, Then Comes Marriage: Capacity to Marry, Separate and Divorce

By Rebecca Betel and Natalie Kodsi

The premise of Netflix’s “Love Is Blind” is simple: gather single strangers looking for love, have them date sight unseen, and then within 30 days of meeting have them marry. Easy. Other than providing hours of entertainment, Love is Blind puts the topic of capacity front and center as it relates to marriage, separation, divorce, and property. What follows is a brief high-level review of the law as it relates to capacity to marry, separate, and divorce.

In Canada, the bar for capacity to marry is low. Essentially, “to enter a marriage… there must be a minimal understanding of the nature of the contract of marriage. No party is required to understand all of the consequences of marriage.”[1] Put another way, “the contract of marriage is a very simple one, one which does not require a high degree of intelligence to comprehend.”[2]

More specifically, in Ontario, for a marriage to be valid it must have “formal validity” and “essential validity”, the former relating to the formalities/procedure of a marriage and the latter relating to requisite capacity to marry.[3] With respect to “essential validity”, section 7 of the Marriage Act[4] prohibits the issuance of a marriage license to, or solemnization of marriage of, any person where reasonable grounds exist to believe that said person lacks the requisite mental capacity to marry by reason of being under the influence of alcohol or drugs, or for any other reason.

Generally, there is a rebuttable presumption that all persons are deemed capable of making decisions at law.[5] Capacity is not static, and a finding of capacity (or incapacity, as the case may be) is premised on an analysis specific to the relevant decision, time, and situation.

With respect to capacity being situation-specific, the Courts are looking for the “cognitive ability to process, retain and understand the relevant information.”[6] The person in question should “be able to apply the relevant information to the circumstances, and be able to weigh the foreseeable risks and benefits of a decision or lack thereof.”[7]

Whether an individual has the capacity to form the intention to leave a marriage hinges on their overall capacity to manage his/her own affairs.[8] Furthermore, in cases where capacity fluctuates, or disappears altogether, courts have held that as long as a person had the requisite capacity at the time of separation from his/her spouse, and maintained the intention to remain separate and apart from his/her spouse while capable, then the entirety of the separation period could be counted for the purposes of a divorce, even if the person lost capacity during the period of separation.[9]

Note that someone may be incapable of managing their property and/or personal care yet remain capable of making personal decisions. With respect to separation, the Ontario Court of Appeal has opined that “[s]eparation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he/she does not want to live.”[10]

The capacity to divorce is the same as the capacity to marry and the court stated, is arguably higher than the threshold for capacity to separate. In Calvert (Litigation Guardian of) v. Calvert[11], the court opined that “[d]ivorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.”[12]

The threshold for capacity to marry, and therefore to divorce, is low. The British Columbia Court of Appeal in Wolfman-Stotland v. Stotland[13] provides that:

In order to enter into a valid marriage, each party must be capable, at the date of the marriage, or understanding the nature of the contract of marriage and the duties and responsibilities which it creates…The test does not, of course, require the parties to be capable of understanding all the consequences of marriage; as one English judge aptly noted, few (if any) could satisfy such a test…the common law test is probably only concerned with the legal consequences and responsibilities which form an essential part of the concept of marriage.  Thus, if the parties are capable of understanding that the relationship is legally monogamous, indeterminable except by death or divorce, and involved mutual support and cohabitation, capacity is present.[14]

Distilled to its simplest form, if someone has capacity to contract, they have capacity to marry, separate, and divorce. They do not need to understand the property rights associated with marriage, or the financial implications of matrimony. In short, you could meet someone on a tv show, know them for 30 days, never see their face, and get married—which makes for great TV and, for those of us dealing with capacity issues as a part of our legal practices, for great discussions.

The above is echoed and affirmed by the Ontario Court of Appeal in the recent decision Tanti v. Tanti[15].

In the case of Tanti v. Tanti, the Ontario Superior Court of Justice and later the Ontario Court of Appeal were tasked with determining, among other things, whether Paul Tanti could enter into a marriage with Sharon Joseph, his much younger live-in companion. The pair, who met at a community organization in 2014, developed a relationship which eventually saw them referring to each other as “companions” and living together. By 2019, at 89 years of age, Paul had asked Sharon to marry him. Although initially apprehensive, so as to not anger Paul’s son from a previous union, Raymond, Sharon agreed and the couple wed in July of 2019. A few days later, the couple attended at a lawyer’s office and Paul granted a power of attorney in favour of Sharon.

Raymond was displeased with their union and alleged his father’s marriage to Sharon was invalid on the basis that his father did not have the requisite capacity to marry. Just a year prior, Raymond had taken Paul to a gerontologist who found some moderate cognitive impairment, however, noted no concern as to Paul’s ability to live independently with assistance. In September of 2019, however, Raymond returned Paul before the gerontologist who found Paul’s cognitive reasoning to be impaired. A second doctor confirmed Paul lacked capacity to appoint an attorney. A third confirmed Paul’s lack of capacity to manage his property, stating Paul also likely did not have capacity to marry.

At trial, citing the case of Hunt v. Worrod[16],  the Court found that Raymond had the burden of satisfying the judge that Paul lacked capacity to marry, which he ultimately failed to do. Instructing herself on the relevant law relating to a person’s capacity to marry, the trial judge had this to say:

In determining legal capacity, courts are asked to balance individual autonomy against the vulnerability that can come with age or disability: Hunt at para. 10. The overarching goal is to ensure that people retain decisional autonomy in as many domains as possible, even if they must be protected from harm in others: Kimberly Whaley et al., Capacity to Marry, (Aurora: Cartwright Group, 2010), at p. 101. Indeed, people with mild cognitive impairment, dementia or Alzheimer’s disease can be capable decision-makers depending on the situation…

The determination of legal capacity is fluid: it is decision, time, and situation specific: Hunt, at para. 13. Medical-legal capacity is a social construct that requires the trier of fact to take into account factors that go beyond simple medical assessments of capacity: Whaley, at p.99.

The requirements of legal capacity vary significantly as between different areas of law and must be applied to the specific decision, act or transaction at issue. For example, it is generally agreed that the capacity required to marry is lower than the capacity required to execute a will or grant a power of attorney for property or personal care: Whaley, at pp. 45-46.

The test for capacity to marry is a simple one. The parties must understand the nature of the marriage contract, and the duties and responsibilities that flow from it: Chertkow v. Feinstein, 1929 CanLII 513 (AB CA), 1929 CarswellAlta 23, 24 Alta LR 188, at p. 191. Understanding the content of the marriage contract does not require a high degree of intelligence; the parties must agree to live together and love one another to the exclusion of all others: Lacey v. Lacey (Public Trustee of), [1983] B.C.J. No. 1016 (S.C.).

The court in Ross-Scott v. Potvin, 2014 BCSC 435 at para. 200 noted that the inability to manage one’s financial affairs would “not necessarily impact a person’s ability to consciously consider the importance of a marriage contract. Nor do they necessarily impact formation of an intention to marry, a decision to marry, or the ability to proceed through a marriage ceremony.” A person may be capable of marrying despite having been declared mentally incompetent or having had a guardian for person or property: Whaley, at p. 45.

The Court of Appeal for Ontario in Knox v. Burton (2004), 6 E.T.R. (3d) 285, aff’d 14 E.T.R. (3d) 27 noted that the assessment of capacity must be time specific: Costantino v. Costantino, 2016 ONSC 7279 at para. 53. Expert examinations or assessments that do not state when the incapacity occurred, or are not contemporaneous with the giving of instructions, may be less probative than the evidence of the individual who took the person’s instructions at the time: Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (Ont. S.C.), at para. 4.

Finally, capacity is situation specific: Hunt, at para. 13. I must assess Paul’s specific capacity to marry Sharon, which makes the overall context of their relationship relevant.[17]

With respect to capacity to marry, the Court of Appeal concluded that “for a marriage to be valid, the parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it.”[18] Similarly, the thresholds for capacity to contract, generally, are to be able to appreciate the consequences of a decision.[19]

Ultimately, the latest restatement of the law surrounding capacity to marry leaves much to be desired with respect to protecting some of the most vulnerable in our society. If capacity to marry is akin to the mere capacity to contract, then predatory marriages will continue unencumbered by the law. In cases where capacity to marry is front and center, Judges have the opportunity to redirect and refine the law vis-à-vis predatory marriage. Unfortunately, it is not too often the case that this opportunity is acted upon. It has been suggested that the connection between capacity to manage property and capacity to marry ought to raise the bar for capacity to marry above that of capacity to contract.[20] Surely this would curb at least some of the egregious behaviour around predatory marriages.

Ideally, what is needed are immediate and cogent legislated protections surrounding predatory marriages, such as a Predatory Marriages Prevention Act, as contemplated and drafted by Albert H. Oosterhoff, Professor Emeritus. [21] Such an Act would, among other things, provide strengthened statutory definitions of marriage and capacity to marry, enable interested persons (as delineated by the Act) to contest the validity of a predatory marriage and to file a caveat to prevent the issuance of a marriage license and the solemnization of a marriage, and disentitle predatory parties to a marriage from making a claim against the victims’ property whether under a Will, intestacy, or pursuant to an equalizing claim under the Family Law Act. Recently, the Succession Law Reform Act, was amended to provide that marriage no longer automatically revokes a Will in Ontario,[22] addressing one of Professor Albert H. Oosterhoff’s chief concerns within the proposed Act.

Ultimately, capacity is a fluid concept, and one’s ability to marry must be assessed regarding all the relevant circumstances. While the landscape around capacity to marry may alter our discourse surrounding more difficult matters such as predatory marriages,[23] it may also interestingly recontextualize how we view (and binge) the latest trend in reality TV.

[1] Kim Whaley & Heather Hogan, “Legal Capacity to Marry, Co-Habit, Separate and Divorce and Predatory Marriages”, Canadian Elder Law Conference, November 13, 2015 (Vancouver, BC).

[2] Durham v Durham (1885), 10 P.D. 80 at 82.

[3] See Anthony v Anthony, 2019 ONSC 650 at paras 15-32.

[4] R.S.O. 1990, c. M.3.

[5] Palahnuk v Palahnuk Estate, [2006] O.J. No. 5304 (QL), 154 A.C.W.S. (3d) 996 (S.C.J.); Brillinger v Brillinger-Cain, [2007] O.J. No. 2451 (QL), 158 A.C.W.S. (3d) 482 (S.C.J.); Knox v. Burton (2004), 6 E.T.R. (3d) 285, 130 A.C.W.S. (ed) 216 (Ont. S.C.J.).

[6] Per Major J. in Starson v Swayze, Starson v. Swayze, [2003] 1 S.C.R. 722 at para 78 [emphasis added]

[7] Ibid.

[8] See A.B. v. C.D. (2009), BCCA 200 (CanLII), leave to appeal to S.C.C. denied October 22, 2009, [2009] 9 W.W.R. 82, p. 272.

[9] O. (M.K.) (Litigation Guardian of) v C. (M.E.) 2005 CarswellBC 1690 (B.C.S.C.) at para 40.

[10] Calvert (Litigation Guardian of) v Calvert (1997), 32 O.R. (3d) 281 (Div. Ct), at 294, aff’d (1998), 37 O.R. (3d) 221 (CA), leave to appeal ef’d [1998] SCCA No. 16.

[11] Ibid.

[12] Ibid at para 57.

[13] 2011 CarswellBC 803, 2011 BCCA 175, [2011] B.C.W.L.D. 3528, [2011] W.D.F.L. 2593, 16 B.C.L.R. (5th) 290, 333 D.L.R. (4th) 106, 97 R.F.L. (6th) 124, 303 B.C.A.C. 201, 512 W.A.C. 201.

[14] Ibid, citing Professor Robertson’s Mental Disability and the Law in Canada pages 253-254 [emphasis added].

[15] 2021 ONCA 717, affirming Tanti v Tanti et al, 2020 ONSC 8063 [Tanti v. Tanti].

[16] Hunt v Worrod, 2017 ONSC 7397 at para 13.

[17] Tanti v Tanti (ONSC) at paras 40-46.

[18] Supra note 15 at para 21.

[19] Royal Trust Co v Diamant, [1953] (3d) DLR. 102 (BCSC); Bank of Nova Scotia v Kelley, (1973), 41 DLR (3d) 273 (PEI SC).

[20] See Cullity J.’s discussion in Banton v Banton 1998 CanLII 14926 (ON SC) at paras 145-159.

[21] See Albert H. Oosterhoff, “Curbing the Scourge of Predatory Marriages by Legislation”. http://welpartners.com/blog/2019/11/curbing-the-scourge-of-predatory-marriages-by-legislation/

[22] See Accelerating Access to Justice Act, 2021, Schedule 9, SO 2021, c 4 – Bill 245.

[23] See Kimberly A. Whaley and Albert H Oosterhoff on Predatory Marriages: https://welpartners.com/resources/WEL-Advocates-Quarterly-Predatory-Marriages.pdf


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