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Recent case highlights risk of predatory marriages

Our increasingly aging population raises questions about marriages for persons with a degree of incapacity. A recent case in which an Ontario court voided a couple’s marriage based on a claim of incapacity highlights the risk that predatory marriages can pose to families and the complexities they can raise for pension and benefit plan administrators.

Ontario court applies revised test for void marriages

In Hunt v. Worrod, the court heard the claim of a 50-year-old applicant who had suffered a traumatic brain injury as the result of an ATV accident. After recovering from a coma, he was released to the care of his two sons, as he still suffered significant cognitive and physical impairment.

Prior to sustaining the injury, the applicant had been involved in what the court described as an “on again, off again” relationship with the respondent. Three days after returning home from the hospital, he was picked up outside his home by the respondent’s uncle. The applicant’s sons were able to trace his whereabouts to a hotel in another town. When they found their father that evening, they discovered that he had married the respondent earlier on the same day.

The court declared the marriage void from the beginning, finding that the applicant did not have the mental capacity to consent to a marriage. The court stated that capacity to marry requires the capacity to understand the nature of the contract and the duties and responsibilities it creates. A capacity assessment will be informed in part by the person’s ability to manage themselves and their affairs.

The court relied on extensive medical evidence supporting the applicant’s claim of physical and cognitive incapacity, including the evidence of several expert witnesses. In the period between the applicant’s injury and the marriage, the applicant showed significant impairments in his executive functioning, including his ability to make decisions, solve problems, plan, organize and execute tasks. Further, his hospital treatment team observed that the injury had affected his ability to recognize his own cognitive impairments. His driver’s license was revoked and his caregivers advised he should not be left alone.

The court also heard that, immediately prior to his sustaining the injury, the couple had not been cohabiting and the applicant had made the decision not to marry the respondent.

While the applicant was ultimately able to nullify the marriage, he and his family were first required to undertake a costly and lengthy legal process that lasted for six years. The court recognized the toll this proceeding took on the applicant and his family, noting that the applicant had funded his litigation using insurance money intended for his care and rehabilitation, and decided to order the alleged spouse to pay a significant portion of the applicant’s legal costs. However, since the alleged spouse did not appear to have any assets, Legal Aid Ontario was required to pay a portion of the cost award.


Comment

While marriage is not primarily about property rights, marriage has a dramatic effect on an individual’s financial circumstances and estate planning. A marriage voids prior wills in most Canadian provinces, although prior beneficiary designations remain in place. Furthermore, pension legislation provides for pre- and post-retirement death benefits for both married and common law spouses of plan members. A married spouse also has rights to a member’s estate if there is a death without a will and has claims to property earned during a marriage.

Employees who have access to an Employee Assistance Program like the one offered through LifeWorks by Morneau Shepell can obtain support and referrals to deal with family members who require support upon incapacity, as well as those who find themselves in predatory marriages or victims of other forms of elder abuse.

While family members may be diligent in their attempts to protect their loved ones from predatory marriages and other forms of elder abuse, it may be impossible to fully protect them. These situations may also raise dilemmas for plan administrators and others who face suspicious circumstances and dubious claims for benefits. In such circumstances, legal advice is appropriate.


News & Views - May 2019 (PDF)