Lorne N. MacLean, QC heads our team of skilled estate litigation and BC Predatory Capacity to Marry Lawyers. As people live longer and boomers acquire more assets through investments and the skyrocketing real estate values so too does the risk of predatory marriages involving wealthy and potentially infirm seniors. MacLean Law’s family and estate litigation lawyers handle grey divorces as well as high net worth disputes involving BC Predatory Capacity to Marry Lawyers and testamentary capacity disputes.
Our experienced family law and estate litigation lawyers act in all courts of BC and in the Supreme Court of Canada. Our offices are conveniently located in Vancouver, Surrey, Kelowna, Richmond, Fort St John and Calgary. Call our BC Predatory Capacity to Marry Lawyers today toll-free at 1-877-602-9900.
A recent case of note finding a marriage invalid was just released and it is of great importance to our BC Predatory Capacity to Marry Lawyers.
BC Predatory Capacity to Marry Lawyers 1-877-602-9900
Madam Justice Griffin handed down her reasons in Devore-Thompson v Poulain, 2017 BCSC 1289 and she provided a cogent summary of the law of capacity to marry as follows:
Capacity to Marry
[43] The starting point for understanding the test for capacity to marry is the notion that a marriage is a contract. Similar to entering into any other type of contract, the contracting parties must possess the requisite legal capacity to enter the contract.
[44] That said, the common law has developed a low threshold of capacity necessary for the formation of a marriage contract. The capacity to marry is a lower threshold than the capacity to manage one’s own affairs, make a will, or instruct counsel: see Wolfman-Stotland v. Stotland, 2011 BCCA 175(CanLII) at para. 26, leave to appeal ref’d [2011] S.C.C.A. No 242 (S.C.C.), [Wolfman-Stotland]; and A.B. v. C.D., 2009 BCCA 200 (CanLII) at para. 27[A.B.].
[45] In Hart v. Cooper, [1994] B.C.J. No. 159 (B.C.S.C.) at para. 30, Lowry J. described the prerequisites for marriage in the following manner, “a person is mentally capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and the duties and responsibilities it creates”.
[46] In A.B., the Court of Appeal addressed the issue of marriage capacity. The Court accepted the characterization of capacity to enter a marriage as being equivalent to the capacity to form an intention to live separate and apart, which was restated in Wolfman-Stotland. In Wolfman-Stotland, the Court remarked that the capacity to marry requires “the lowest level of understanding” in the hierarchy of legal capacities.
[47] In Wolfman-Stotland, the Court referred to Calvert (Litigation Guardian of) v. Calvert(1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281 (Ont. Gen. Div.), aff’d (1998), 1998 CanLII 3001 (ON CA), 37 O.R. (3d) 221 (Ont. C.A.), leave to appeal ref’d [1998] S.C.C.A. No. 161 (S.C.C.), which contains a useful discussion of the hierarchy of capacities:
[54] Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, 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.
[55] The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427. If marriage is simple, divorce must be equally simple. The American courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage: re: Kutchins, 136 A. 3d 45 (Ill., 1985).
[56] There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will: Park, supra, at p. 1426. …
[48] The authorities suggest that the capacity to marry must involve some understanding of with whom a person wants to live and some understanding that it will have an effect on one’s future in that it will be an exclusive mutually supportive relationship until death or divorce.
[49] I leave open the possibility that in some cases a marriage can take place without an immediate plan to live together, such as in a situation where two people work in different cities. But there is no suggestion in this case that the alleged Marriage was a long-distance one. Here Mr. Poulain claimed that he and Ms. Walker were living together.
BC Predatory Capacity to Marry Lawyers Can Help You Protect Yourself and A Loved One
So after Justice Griffin set out the law her next task was to apply the law to the facts of the marriage, in this case, to decide if it was valid and if it was not what the effect was on the estate division. Our BC Predatory Capacity to Marry Lawyers focus on the following key findings by the court:
The Marriage
[343] As of the date of the marriage ceremony, Ms. Walker was at a stage of her illness where she was highly vulnerable to others. She had no insight or understanding that she was impaired, did not recognize her reliance on Ms. Devore-Thompson and Ms. Devore-Thompson’s assistance, and was not capable of weighing the implications of marriage to Mr. Poulain even at the emotional level.
[344] The fact that Ms. Walker told some people that she had married Floyd Poulain does not overcome all of the evidence as to her disordered thinking. This does not mean she had any understanding of what it means to be married.
[345] It is also clear that Ms. Walker’s mental capacity had diminished to such an extent that by 2010 she could not have formed an intention to live with Mr. Poulain, or to form a lifetime bond. She did not understand, at that stage, what it meant to live together with another person, nor could she understand the concept of a lifetime bond.
[346] Ms. Walker did not have a grip on the reality of her own existence and so could not grip the reality of a future lifetime with another person through marriage.
[347] I find on the whole of the evidence, given her state of dementia, Ms. Walker could not know even the most basic meaning of marriage or understand any of its implications at the time of the Marriage including: who she was marrying in the sense of what kind of person he was; what their emotional attachment was; where they would be living and whether he would be living with her; and fundamentally, how marriage would affect her life on a day to day basis and in future.
[348] I conclude that Ms. Walker did not have the capacity to enter the Marriage.
[349] Since I have concluded that Ms. Walker did not have the capacity to enter the Marriage, the Marriage is void ab initio. Because the Marriage is void ab initio, s. 15 of the Wills Act does not apply and, therefore, the Marriage does not revoke the prior wills. It is unnecessary to consider other arguments as to why the Marriage might be void, including the possibility that Mr. Poulain was not divorced from his first wife.
Call Our BC Predatory Capacity to Marry Lawyers Now To Protect Yourself And Your Loved Ones
If you have concerns that a loved one isn’t able to understand the consequences of their new relationship or suspect less than pure motives on the part of a new beau then call our BC Predatory Capacity to Marry Lawyers right away at 1-877-602-9900 to find out how to protect your loved one from financial loss.
