Capacity to marry: the case of Tanti v Tanti et al.

April 16, 2021 | Jennifer A. N. Corak

In the case of Tanti v Tanti et al., the Ontario Superior Court of Justice was tasked with determining whether Paul Tanti was capable of marrying his “much-younger, live-in companion”, Sharon Joseph.[1]

In 2014, Paul went to a community organization looking for help with small jobs at his home. Sharon subsequently attended at Paul’s home to assist with some exterior painting.  They became friends and, around 2017, they began to refer to one another as “companions” with family, friends, and professionals. Paul and Sharon spent time together and with friends and family. In early 2018, Sharon moved into Paul’s house after he expressed a desire for a more intimate relationship with her.

Paul had a son, Raymond, who visited once a week to drop off groceries, exchange Paul’s laundry and check in on him.  Raymond did not like Sharon and pressured Paul to end the relationship with her. In February 2018, Raymond took Paul to see a gerontologist, who found that Paul had cognitive impairment of a moderate degree but that he could live independently with assistance.  Raymond did not speak with Sharon about Paul’s dementia or capacity.

Next, we fast forward to Paul’s 89th birthday in January 2019 when Paul asked Sharon to marry him. Sharon was hesitant as she was worried that Raymond would be angry.  Paul, however, did not give up. In June 2019, he asked Sharon to marry him again, expressing his concern about losing her and his hope that Raymond would stop bothering them if they were married.  Paul bought Sharon an engagement ring later in June, and the couple took steps to plan their wedding.

On July 27, 2019, Paul and Sharon were married. There were five people in attendance.  A Reverend performed the ceremony, Sharon’s cousin, Avril, was a witness, and Paul was able to answer the questions asked by the officiate clearly. Afterwards, Avril said that Paul told her how much he loved Sharon and how happy he was to marry her. In wedding photos, Paul seemed happy.

A few days later, on July 30, 2019, Raymond visited Paul. Upon finding out about the marriage he became verbally abusive, leaving after the police were called.  He returned to Paul’s house the next day and demanded to know Paul’s plans for his property and estate; once again, Raymond only left once the police were called.  Later that day, Paul and Sharon attended at a law office. The lawyer met with Paul alone, took his instructions, explained the implications of signing a power of attorney, and concluded that Paul had capacity to grant a power of attorney in favour of Sharon.

On August 10, 2019, Sharon departed for a previously scheduled trip to visit her extended family for 16 days. While Sharon was away, Paul was alone in his home in Toronto, but Sharon’s friend and a caregiver checked in on him, and Sharon’s daughter helped Paul with groceries.  Raymond attended at Paul’s bank within days of learning of Sharon’s trip, and was advised that he could no longer access his father’s accounts since Sharon was now Paul’s attorney for property. Raymond proceeded to take his father for an urgent assessment, and the gerontologist (the first doctor) found Paul’s cognitive reasoning was impaired and that he lacked the capacity to handle his financial and medical affairs. The first doctor referred him to another doctor for a second opinion. A one-hour psychogeriatric assessment was completed by the second doctor on September 11, 2019 and it was found Paul lacked capacity to appoint an attorney.

Prior to obtaining the second opinion, and prior to Sharon’s return home, Raymond:

  1. moved Paul into Raymond’s home and started looking into long-term care homes (Sharon returned home from her trip to changed locks and a letter from Raymond’s counsel indicating that Paul was living with Raymond); and
  2. brought an application (the “Application”) seeking, amongst other things: (a) a declaration that Paul was incapable of managing property and personal care; (b) guardianship of Paul’s property and person; (c) custody of Paul; (d) an order permitting him to lease and eventually sell Paul’s home; (e) an order freezing all bank accounts jointly held by Paul and Sharon; and (f) an order suspending the power of attorney granted by Paul to Sharon.[2]

On December 29, 2019, a third doctor completed an independent assessment of Paul’s capacity, concluding that Paul lacked the capacity to manage property.

By September 2020, three doctors had assessed Paul’s capacity, however none of them had opined on Paul’s capacity to marry. All three were all asked to provide a retrospective opinion on Paul’s capacity to marry. The first doctor refused to do so. The second doctor, when pressed to do so at his examination, said that Paul could not have had the requisite capacity because Paul had told both the first doctor and the second doctor that he could not recall the marriage. The third doctor stated that Paul likely did not have the capacity to marry, in part, because he did not seem to have any recollection of the marriage. These retrospective opinions were not afforded much weight for a number of reasons, including that they were not contemporaneous with the marriage, were based on a single interaction with Paul, were fundamentally premised on Raymond’s unproven allegations regarding Sharon, and were too heavily influenced by Raymond’s unproven allegations about the relationship.[3]

To have the capacity to marry Sharon, Paul had to understand the nature of the marriage contract, and the duties and responsibilities flowing from it. As capacity is situation specific, Justice Mandhane had to assess Paul’s capacity to marry Sharon. Ultimately, it was found that, on July 27, 2019, Paul had the requisite capacity to marry her.  In coming to this conclusion, Justice Mandhane considered the following factors:

  1. the couple’s relationship prior to the marriage;
  2. Paul’s cognitive capacity leading up to and immediately after the marriage;
  3. Paul’s understanding of the marriage ceremony and vows, and the obligations it created; and
  4. Paul’s interactions with professionals contemporaneous to the marriage.

The decision states that this was neither a rush to the altar, nor a predatory marriage. There was no evidence that Sharon was a hired caregiver.[4] Paul and Sharon were mature adults in a long-term relationship that unfolded and deepened over the course of five years, with marriage being a rational next step. Prior to the marriage, Paul had neither been diagnosed with dementia, nor was he found incapable of managing his property or person. Neither the officiate nor any of the witnesses to the wedding expressed concerns about Paul’s ability to understand the marriage vows or the ceremony. It was found that Paul appreciated the consequences of marriage a few days after the wedding, as seen during his interactions with his son at the end of July 2019, as well as during his meeting with the lawyer to make Sharon his attorney for property. Weight was also given to the opinion of the lawyer with whom Paul met to prepare a power of attorney, who stated that Paul gave him coherent instructions and that Paul understood the implications of signing a power of attorney on July 31, 2019.

Different areas of law involve different considerations when determining capacity. The test for capacity to make a Will, for example, is different than that to marry.  In fact, it is generally agreed that the capacity to marry is lower than that required to execute a Will or grant a power of attorney.[5]

One’s marital status has implications on the areas of estate planning and estate administration.  As of the date of this article, subsection 15(a) and section 16 of the Ontario Succession Law Reform Act[6] (“SLRA”) provide that a marriage after the date of a Will revokes the Will (subject to certain exceptions). Therefore, the finding of whether or not a person had capacity to marry could mean the difference between whether or not a person’s Will was revoked.

Bill 245, Accelerating Access to Justice Act, 2021, which has now passed Third Reading in the Legislative Assembly of Ontario, proposes to repeal the above-noted sections of the SLRA.[7] The effect of the repeal of these sections will have the effect that marriage will no longer revoke a Will. Although a welcome change (particularly in light of the existence of predatory marriages, which this was found not to be), this will not change the importance of determining whether someone is legally married.  Someone could have capacity to marry while not having capacity to make a Will. If a person has capacity to marry, but does not have capacity to make a Will, it is conceivable that an existing Will would not include the new spouse (something the testator lacking capacity to make a Will might have wanted).

Further, the question of whether someone is legally married is relevant to how their estate will be distributed if they die intestate (i.e., without a Will). In Ontario, if a person dies without a Will and is legally married at their death, and if the deceased left no children or more remote issue surviving, the SLRA provides that the deceased’s assets would pass to their surviving spouse.[8] If, however, the deceased was survived by their spouse and one or more children,[9] the surviving spouse would be entitled to a preferential share in an amount prescribed by regulation[10] plus a portion of the balance.[11] Therefore, the question of whether there was capacity to marry could, in some instances, mean the difference between inheriting something or nothing.

Overall, the case of Tanti v Tanti et al., in addition to reminding us of the test for capacity to marry, reminds us of the relevance of marital status in estates law and, to quote Justice Mandhane, “it highlights emerging issues that lie at the intersection of family law, estates law, and elder law.  It requires the court to answer deceptively simple questions that have serious implications for the parties.”[12]

[1] 2020 ONSC 8063 [Tanti].

[2] The Application was granted and the following month Sharon brought a motion to set it aside. Please see paragraphs 6 to 14 of the judgment for more information regarding the proceedings.

[3] For more detail about Justice Mandhane’s analysis regarding whether to admit the expert evidence and how much weight to afford it, please see paragraphs 47 to 55 of the judgment.

[4] In support of the Application, Raymond indicated that it appeared likely that Paul had become subject to manipulation and perhaps loss and misappropriation of funds at the hands of a hired caregiver. Justice Mandhane found, however, that there was no evidence supporting these allegations.

[5] Tanti at para 42, referencing Kimberly Whaley et al., Capacity to Marry, (Aurora: Cartwright Group, 2010) at pp. 45-46.

[6] R.S.O. 1990, c. S. 26 [SLRA].

[7] For more information about the proposed reforms to estates law please see the article by our legal team with the title Reform on the horizon in Ontario estates law

[8] SLRA at section 44.

[9] Or more remote issue.

[10] Currently, per O.Reg 54/95, $200,000 for the estates of persons who die before March 1, 2021 and $350,000 for the estates of persons who die on or after March 1, 2021.

[11] SLRA at sections 45-47.

[12] Tanti at para 2.


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