Predatory marriages have drawn a lot of attention in recent years. They are believed to be on the rise. For families with single, elderly family members, this phenomenon is alarming. For Ontario’s estate litigators, the governing legal principles are infuriating. Too often in the past, the predatory spouse has prevailed because the common law offers limited recourse; that is, until Hunt v. Worrod.[1] Released in December 2017, Hunt v. Worrod may just have changed the legal landscape of predatory marriage in Ontario.
To recap, a “predatory marriage” refers to a marriage entered into for the singular purpose of gaining access to an estate. The textbook example involves an interested party (e.g. a friend, neighbour, caregiver or former romantic partner) persuading an elderly and vulnerable individual (the “prey”) to marry. Often, the victim is dependant and suffering some degree of cognitive impairment.
The fall out of a predatory marriage can include:
- Revocation of a pre-existing will: Under Ontario’s Succession Law Reform Act (SLRA)[2] marriage revokes a pre-existing will, unless the will was made in contemplation of marriage.[3]
- Administration of the estate in accordance with the intestacy laws: With the previous will revoked by the marriage, the victim spouse’s estate will be administered in accordance with the intestacy provisions of the SLRA if the victim spouse lacks the capacity to execute a new will. The predator spouse may then elect to take under the intestacy laws or to receive an equalization payment under the Family Law Act.
- Depletion of assets: A predatory partner will use his or her status as a spouse to withdraw money from joint bank accounts, obtain ownership of assets and deplete the victim spouse’s assets. The predator spouse will rearrange the victim spouse’s financial affairs for their sole benefit to the detriment of the victim spouse and his or her beneficiaries.
Unfortunately, in Ontario, neither the SLRA nor the Marriage Act offers substantial protection from a predatory marriage. In Alberta, British Columbia and Quebec, marriage does not revoke an otherwise valid will.
In the absence of legislative protection, family members of a victim spouse turn to the Courts in the hopes of having the marriage declared void ab initio, that is, void from the outset. The difficulty they face, however, is that the common law has developed a low threshold for the capacity necessary to marry. Capacity to marry has been equated to capacity to separate, the latter being described as having the “lowest level of understanding” in the hierarchy of capacity.[4]
The traditional view of capacity to marry only requires that a person be able to understand the nature of the marriage contract and the duties and responsibilities it creates.[5] In Hunt v. Worrod, the Court adopted and applied a test that also requires a person to be able to manage themselves and their affairs. If other Courts adopt the test applied in Hunt v. Worrod, the common law threshold for capacity to marry will be significantly raised.
Overview of Hunt v. Worrod
Kevin Hunt and Katherine Worrod were involved in an “on again off again” relationship, with no intention to marry, at least on the part of Mr. Hunt. In mid-2011, Mr. Hunt sustained a catastrophic brain injury. After four months of extensive rehabilitation in a hospital, he was released into the care of his two sons, James and Justin Hunt.
Soon after being released home, and unbeknownst to his sons, Mr. Hunt was picked up by Ms. Worrod’s uncle under the pretense that Mr. Hunt, a formerly self-employed landscaper, was required to price out a foundation job. A surreptitious marriage took place that same day, without any notice to Mr. Hunt’s family.
On behalf of their father, as his court-appointed guardians, James and Justin Hunt commenced an application to have the marriage between their father and Ms. Worrod declared void ab initio.
During the trial, a significant amount of evidence was dedicated to the issue of Mr. Hunt’s capacity to marry. The consensus of a number of medical professionals was that Mr. Hunt suffered from numerous cognitive impairments impacting on, amongst other things, his judgment, his ability to understand the consequences of his behaviours, and a number of executive functions. On a MoCa test,[6] he scored 22/30 (a score of less than 26 is indicative of cognitive impairment). Capacity assessments concluded that he was incapable of managing his finances and incapable of some personal care decisions.
The Court heard from numerous lay witnesses, including Mr. Hunt himself. Mr. Hunt’s testimony revealed that he recalled the wedding but did not know why he wanted to marry Ms. Worrod. He could not recall who picked him up on the day of his wedding nor how he proposed. He confirmed that he was not involved in the wedding planning.
In considering the issue of whether Mr. Hunt had the mental capacity to marry, Justice E.J. Koke relied on the test for capacity set out in by the British Columbia Supreme Court[7] in Ross-Scott v. Groves Estate [Groves Estate]:
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 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. …[8]
This passage in Groves Estate purports to add another component to the traditional test for capacity to marry; to be capable of marrying, a person must also be able to manage themselves and their affairs. Justice Koke adopted this expanded articulation of the test,
“The test for capacity, as set out in Ross-Scott v. Groves Estate, supra requires that persons entering into a marriage contract understand the duties and responsibilities which a marriage creates and have the ability to manage themselves and their affairs.[9] “(emphasis added)
Ultimately, Justice Koke found that Mr. Hunt did not meet the test for capacity to marry. His Honour distinguished Mr. Hunt’s consent and desire to marry Ms. Woodward from his capacity. Great weight was placed on the uncontradicted opinion evidence from the medical experts and witnesses. The marriage between Mr. Hunt and Ms. Worrod was declared void ab initio.
Analysis
The test articulated by Justice Koke in Hunt has four parts. To be capable of marrying, a person must:
- understand the nature of the contract;
- understand the duties and responsibilities a marriage creates;
- be capable of managing him or herself; and
- be capable of managing his or her affairs.
The additional requirement of having an ability to manage oneself and one’s affairs has been recognized in English jurisprudence,[10] but had not previously gained traction with Canadian Courts. The closest consideration of this elevated test arose in the seminal case of Banton v. Banton.[11] However, in that case, Justice Cullity understood the English jurisprudence to stand for the proposition that in order for a person to be incapable of marriage, there had to be a finding of incapacity to understand the nature of the contract as well as a finding of incapacity to manage one’s property and person. If a person was only incapable of managing his/her property then s/he could still have the capacity to marry.[12] As a result, despite articulating what would, at the very least, be an elevated dual test for capacity to marry, and despite a finding of Mr. Banton’s incapacity to manage property, Justice Cullity held that Mr. Banton had the capacity to marry and upheld the marriage.
The test articulated by Justice Koke in Hunt is different from that recited by Justice Cullity in Banton. Whereas Justice Cullity’s test set out the prerequisites for a finding of incapacity to marry, Justice Koke’s rendition set out the requirements for capacity to marry. Applying Justice Koke’s test, a finding of incapacity to manage property, by itself, would render a person incapable of marrying.
Justice Koke’s articulation of the test for capacity to marry significantly elevates the traditional threshold for capacity to marry. Will it reduce the risk of exposure to predatory marriages? Yes, but perhaps only to an extent. One cautionary observation is that the elevated test makes no mention of testamentary capacity[13]. For those that recognize a “capacity hierarchy”, with testamentary capacity at the top, the test may fall short in rare circumstances. If one accepts that testamentary capacity requires the highest level of capacity, as is endorsed by some Courts and academics, a person may have the ability to manage themselves and their affairs, and thus have the capacity to marry, yet remain incapable of executing a will. Therefore, even under this elevated test, some forms of predatory marriage could theoretically survive.
The true extent to which this elevated test will protect families from predatory marriages remains to be seen. Nevertheless, it is a leap in the right direction and will be applauded by many. Notably, since its release in December 2017, the test in Hunt has already been cited once in Chuvalo v. Chuvalo.[14] At the very least, Hunt has accelerated the evolution of the law on this issue.
[1] 2017 ONSC 7397 (“Hunt”)
[2] R.S.O. 1990, c. S. 26,
[3] Succession Law Reform Act, R.S.O. 1990, c. S. 26, s. 16
[4] Wolfman- Stotland v. Stotland 2011 BCCA 175 at para. 27; Calvert (Litigation Guardian of) v. Calvert 1997 CarswellOnt 581 (Gen. Division) at para. 55, aff’d (1998), 37 O.R. (3d) 221 (Ont. C.A), leave to appeal ref’d [1998] S.C.C.A. No. 161 (SCC); Moyer v. Kelemen, 2006CarswellOnt8479 at para. 4
[5] Banton v. Banton 1998 CarswellOnt 3423 at paras. 115-116; Devore-Thompson v. Poulain 2017 BCSC 1289 at para. 45
[6] The MoCa (Montreal Cognitive Assessment) was designed as a rapid screening instrument for mild cognitive dysfunction.
[7] In Hunt, Justice Koke erroneously refers to the Groves Estate decision as having been decided by the British Columbia Court of Appeal. In fact, this is a Supreme Court decision. It was never appealed.
[8] 2014 BCSC 435
[9] Hunt, supra note 1, at para. 83
[10] See Browing v. Reane (1812) 161 E.R. 1080. See also Spier v. Bengent [1947] W.N. 46 (Eng. P.D.A.)
[11] 1998 CarswellOn4688 (Ont. Gen. Div)
[12] Ibid at para. 111, 114, 119, 125. Notably, Justice Cullity also was of the view that the English Jurisprudence was decided on the ground that the deceased had a sufficient ability to understand the obligations and responsibilities of marriage, and not on the extended test.
[13] “Managing one’s affairs” is traditionally accepted to mean “managing one’s property”. See Banton v. Banton 1998 CarswellOnt 3423 at para. 123
[14] 2018 ONSC 311.