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  • Writer's pictureJared Davies, Lawyer

Capacity and marriage, pursuant to Tanti v Tanti, 2021 ONCA 717

Manipulation or true love? When an 89-year-old marries a much younger individual, most people are probably a little suspicious. However, the Court of Appeal concluded that the 89-year-old had capacity at the time of marriage and there was no reason to doubt its validity. In other words, the Court did not feel he was being manipulated for his property. In deciding this, the Court looked at the parties’ relationship prior to marriage, evidence of cognitive capacity leading up to and just after marriage, the views or opinions of the individuals at the wedding ceremony, and professionals who interacted with the individual at or around the time of marriage.

In determining legal capacity, Courts must balance individual autonomy against the vulnerability that can come with age or disability (Hunt). In other words, there are two competing forces at play when individuals start to experience cognitive decline; the Court’s desire to leave people with their independence and the Court’s desire to protect those same individuals from decisions that may ultimately hurt them.

The issue was whether the husband had the capacity to marry. The threshold capacity to marry is typically characterized as being lower than the capacity to make a Will or Power of Attorney. This is not terribly surprising. There are obvious policy reasons to ensure that people, no matter what level of capacity they have, are free to love who they wish. But the parties must understand the nature and consequences of the marriage contract, and the responsibilities flowing from it—this being a situation specific analysis, requiring a look into the facts (Chertkow v. Feinstein & Hunt). Finally, this is decided on balance.

The trial judge based their decision off four main considerations in the fact-driven analysis, as mentioned above. The husband and wife knew each other for at least five years before marriage and held themselves out as boyfriend and girlfriend for at least one year before marriage. The husband was living independently prior to marriage, and he signed a Power of Attorney just after marriage. None of the witnesses or the marriage officiant expressed concern about the husband’s capacity. Finally, the lawyer who performed the husband’s Power of Attorney, days after the wedding, found that the husband had the capacity to sign his PoA.

The Court of Appeal found there was no reason to interfere with this decision. Notably, the trial judge was right to give little weight to expert medical evidence because none were contemporaneous with the marriage. It was apparent that the husband’s cognitive abilities started to decline only after the marriage. But the Court is not looking for a party’s capacity after marriage, they are looking for capacity at the time of marriage or shortly thereafter.

Obvious takeaways? It is naïve to assume that all cases of a major age difference between spouses are predatory in nature.


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