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Our Vancouver Elder Divorce, Remarriage and Baby Boomer Separation Lawyers who act across BC with offices in Vancouver, Kelowna, Surrey and Fort St John have seen the aging population in Vancouver and other parts of BC lead to new issues involving the older divorcing spouse. Late in life remarriage, separation and the potential for an elderly Vancouver spouse to be taken advantage of by “gold-diggers” are all the more frequent these days. Our aging population raises concerns about the protection of the elderly, including in family law matters. You need a lawyer experienced in the area of “grey divorce” or middle age remarriage protection strategies like the senior lawyers at the MacLean Law. Call us at 604 602 9000 to book an appointment or meet with our Zagat rated lawyers.

According to a recent research study done by Bowling Green State University in Ohio, the divorce rate among Baby Boomers, those 46 to 64 years of age, has jumped by more than 50 percent over the last two decades.

When an older adult marries late in life, or seeks a divorce after decades of marriage, capacity to marry or to divorce may become an issue and concerns may also arise over predatory marriages. When the elderly potential new spouse has a high net worth they can become targets for scheming parties looking to capitalize on this persons’ wealth.

Marriage can have a significant impact on estate matters. Under the British Columbia Wills Act, marriage generally revokes an existing will unless the will is specifically stated to be made in contemplation of marriage. Estate litigation may then result when, for example, adult children of the deceased find that their parent’s will has been to all effect cancelled, or that a new will had been done that results in the majority of the estate being left to a new spouse. The circumstances of late in life marriages may cause concerns, particularly when the ceremony has been sudden and unexpected to family members, and when an older adult has health issues that may render them vulnerable. Some people call these marriages where an elderly spouse is targeted for financial gain predatory others call the unscrupulous new spouse a “gold-digger”.

The issue of capacity to marry was addressed in a 1998 decision of the Ontario Court of Justice, Banton v. Banton.  Mr. Banton was in his nineties and living in a retirement home when, without informing his children, he married a 31 year old waitress at the home, and then made new wills leaving his whole estate to his new spouse. Following his death, his children attacked the validity of the new will and questioned whether their father had the capacity to enter into the marriage.

Even though it was held that Mr. Banton did not have testamentary capacity when he changed his wills, the Court held that he was nonetheless capable of entering into the marriage:

“It is well established that an individual will not have capacity to marry unless he or she is capable of understanding the nature of the relationship and the obligations and responsibilities it involves. The burden of proof on this question is on those attacking the validity of the marriage, and, in my judgment, it has not been discharged in this case. There is virtually nothing in the evidence to suggest that George Banton’s mental deterioration had progressed to the extent that he was no longer able to pass this not particularly rigorous test”.

When older spouses separate, particularly after a lengthy marriage, a challenge may be made as to whether the spouse who elected to leave the relationship had the capacity to make this decision.

The low level of capacity required to marry  or to decide to separate from a spouse has been cited in British Columbia decisions. For example, in A.B. v. C.D., a 2008 decision of the British Columbia Court of Appeal, the husband challenged his wife’s decision to leave the matrimonial home after 43 years of marriage, arguing that she did not intend to leave the marriage and suffered from a delusional disorder which he said led her to believe he was being unfaithful. The husband appealed the finding of the Supreme Court that the wife was competent and able to instruct her counsel. In making this finding, the Judge concluded that capacity to live separate and apart for the purpose of obtaining a divorce was similar to the capacity required to marry, referring to the Banton decision. The husband’s appeal was dismissed, with the Court of Appeal holding that “disordered or delusional thinking which may contribute to an individual’s intention to live separation and apart does not diminish that individual’s capacity to form that intention, provided it does not reach the level of incapacity that interferes with the ability to manage his or her own affairs and instruct counsel.”

In contrast, in the case of Wolfman-Stotland v. Stotland, 2011 BCSC 499, the 92 year old wife who resided in a care facility sought a declaration from the court that she and her 93 year old spouse had no reasonable prospect of reconciliation. A medical examination determined that the wife had mild to moderate cognitive impairment, and was at risk of financial abuse from others and had already been the victim of fraud by a personal caregiver.  Unlike in the case of A.B. v. C.D., it was found that Ms. Stotland has no ability to manage her own affairs, and lacked the capacity to obtain the declaration.

The case of L. (W.C.) (Guardian ad litem of) v. L. (A.J.) involved a  Husband, 82, and wife, 73, separating after 4-year marriage, with cohabitation period of less than 2 years.  The  Husband contributed almost all of the family assets of $96,400 to the relationship. The court awarded a 70/30 division in husband’s favour. The case points out the incapacity that often affects the spouses in these cases as the elderly husband had to to act through his litigation guardian to  seek a divorce after short-term marriage due to dementia. The Court found a breakdown of marriage and granted a divorce despite the wife’s assertion to the contrary, which the court held was motivated by her desire to retain use of the couple’s rapidly declining assets.

These cases indicate the importance of careful financial and estate planning, and expert evidence, where an older family member may be vulnerable to financial abuse including a late in life predatory marriage, or if cognitive impairment is a concern at the end of a long marriage.

The MacLean Family Law Group can assist you with elder and grey divorce family and estate litigation matters. If you would like a consultation with us, please contact our office at 604 602 9000.