Please Enjoy, 

Kimberly A. Whaley
Whaley Estate Litigation

1. Will Challenge Proceedings and Estates List Directions

In Toronto, estate practitioners using the Estates List are also governed by the Practice Direction for Estates: link

As many are aware, in Toronto, since November 2013, the Estates List, traditionally part of the Civil List, has been largely managed by the Commercial List, apart from Consent and Capacity Board Appeals which have remained as part of the Civil List.

On March 27, 2014, the Honourable Mr. Justice David Brown, released his Reasons for Decision in the Matter of the Estate of Ireni Traitses, Deceased: link to copy of decision

In the Matter of the Estate of Ireni Traitses, deceased, 2014 ONSC 2102

Date: 2014-03-27, per Justice D.M. Brown J.

The Reasons for Decision apply to Will Challenges (and arguably other directions sought in estates matter). The Reasons reference and implement principles elicited from the recent decision of Hryniak http://canlii.ca/t/g2s18, respecting summary judgment motions (see blogs re Hryniak on WEL site), and Orders for Directions generally.

The Reasons for Decision in the Irene Traitses Estate address many issues that the estates practitioner practising in Toronto ought to be aware of.

Summary:

Brown J., speaks to the proportionality principles laid down by the Supreme Court of Canada in Hryniak, http://canlii.ca/t/g2s18, as applying to the drafting of orders for directions in Will Challenge Proceedings.

Justice Brown conveys his view that the standard practice, as it relates to Estates List orders for directions, must now incorporate the Hryniak principles of proportionality.

In that regard Brown J., in his Reasons for Decision delivered orally with appendices attached to his handwritten endorsement, ordered that two related proceedings be transferred to the Estates List and heard together. 

Justice Brown furthered ordered that he would seize himself of both proceedings for the purposes of case management.

In the Reasons for Decision, Justice Brown orders the productions and discovery in the Traitses Estate to include disclosure orders for the release and production of medical notes and records; financial records; the solicitors' records and notes; and a waiver of privilege respecting the estate disclosure, so ordered.

In his reasons, Justice Brown refers to the Traitses Estate as "of a modest estate" by Toronto standards, and refused to order any pre-hearing oral examination-for-discovery, including cross-examination for the following reasons:

"(i) First, the only asset of the deceased was a house worth $600,000.00  to $800,000.00. By Toronto standards, this is a modest estate and costs must be kept in check; and

(ii) Second, the issue pleaded in challenge to the Will is undue influence by Julie.  The affidavits of Julie and Stephanie disclose conflicting evidence. Out-of-court cross-examinations will be of limited utility in assisting the judge on credibility issues. Viva voce cross-examination at the hearing would be more appropriate."[1]

Instead of pre-hearing oral examinations-for-discovery, Justice Brown proposes that each party in the Traitses Estate submit written interrogatories of up to fifty questions and specifically with each sub-question constituting a question. Justice Brown ordered that written interrogatories be delivered on a time-table and provided for both the dates of the exchange and the written responses.

Importantly, Justice Brown made note of the order specific to the Traitses decision that the applicant in this case, would pay the interim cost of the disclosure or associated with the disclosure orders with the ultimate responsibility for payment reserved to be determined by the hearing judge. 

Justice Brown spoke of his vision that there would be a two-day hybrid final hearing in the Fall of this year for the Traitses Estate.

Notably, and importantly, as our population continues to age rapidly, Justice Brown makes reference to the frequency of the sorts of disputes coming before our courts and the importance that the court must adjudicate them quickly.

In this particular matter, Justice Brown ordered that evidence-in-chief would be given by the affidavits on the written record already filed and viva voce, time-limited cross-examinations on those affidavits would take place at the ultimate hearing.

In respect of cross-examinations, Justice Brown, instead of setting time limits for the cross-examinations, directed that the parties would book a one-hour case conference before Justice Brown after 3:00 p.m. during certain weeks to discuss the pre-hearing progress made and the format and timing of the final hearing.

Justice Brown referenced his "Standard Case Management Directions". Notably, these Standard Case Management Directions are attached as Schedule "B" [link] to the attached Reasons for Decision.  Justice Brown stated that he started to use these Standard Case Management Directions on the Commercial List close to two months ago.

I will review the Standard Case Management Directions in greater detail below.

Justice Brown gave directions to counsel in the Traitses Estate including specifically that in each case conference in a proceeding, counsel ought to be prepared to discuss the following three issues:

(i) "What  do  the  parties  require  in  order  to  begin  meaningful  settlement discussions?

(ii) Applying the principle of "viva voce evidence when necessary, but only as much viva voce evidence as is necessary", what form of final hearing on the merits is best suited to the characteristics of this case- a Summary judgment motion? Hybrid trial? Fulltrial?

(iii) Can a date for the final hearing on the merits now be set?"[2]

Justice Brown made directions as to how the parties could book 9:30 appointments or case conferences before himself. The Reasons for Decision speak to Justice Brown's availability as usually within 24-28 hours through a 9:30 appointment.  Justice Brown cautions counsel "not to let problems fester or build up"[3]

Justice Brown also stated in his Reasons for Decision, that counsel could book an appointment before him and if the Estates List office indicates there are no appointments for the next two months, His Honour notes "that is wrong". Justice Brown directs counsel to phone Joe DiPietro at the Commercial List office to book a 9:30 appointment with him within 24-28 hours.

Schedule B to Justice Brown's Reasons for Decision and Endorsement dated March 27, 2014.

Standard Case Management Directions for Proceeding - case managed by D.M. Brown J.  [link]

In these case management directions which are self-explanatory, counsel ought to be familiar with Justice Brown's directions on the following events:

  2. The conduct of case managed litigation;

  3. Pleadings brief;

  4. Standing agenda items or any case conference;  

  5. 9:30 appointments and case conferences;

  6. Discovery issues including:

a. E-discovery;

b. Undertakings;

c. Refusals/under advisements

  7. Friday morning discovery hearings;

  8. Motions generally;

  9. Summary judgment motions; and

10. Service

Brown J's. directions under each heading above are very specific.

Notably, Justice Brown advises that self-represented parties and counsel are expected to practice the "three C's" of the Commercial List:

1. Cooperation;
2. Communication; and
3. Common sense.

In particular, Brown J., wants counsel to pick up the phone and have a "live" discussion.

Importantly, five (5) days before a case conference, counsel for each party shall file on the Commercial List, to the attention of Justice Brown, a brief containing the following:

(ii)  the notice of application; and

(iii) the main applicant's affidavit/main respondent's affidavit.

At each case conference counsel ought to be prepared to discuss settlement discussions, the principles of viva voce evidence; and the form of the final hearing on the merits as is best suited to the characteristics of the particular case, including but not limited to a summary judgment motion; hybrid trials; full trials; and whether or not the final hearing on the merits can now be set.

9:30 case conferences can also be conducted by teleconference by Skype or GoToMeeting.

Note that 9:30 appointments can start as early as 8:00 a.m. at counsel's request.

Before the 9:30 appointment or earlier as the case may be, the day before any 9:30 appointment, counsel should send to the Commercial List office a short email or fax identifying the issues that counsel wish to discuss, or a case conference memorandum. Case conferences take a minimum of 30 minutes.  Justice Brown is prepared to conduct these conferences from 8:00 a.m. to 9:30 a.m. or after 3:00 p.m. through to 6:00 p.m.

Regarding discovery, Justice Brown invites counsel to explore creative ways to ensure e-discovery cost remain proportionate to the complexity of the issues and the amount of money at stake in the case.

Regarding undertakings, refusals and advisements, Justice Brown encourages the parties to review and use Rule 34.12(2) of the Rules of Civil Procedure. If the parties do not elect to use Rule 34.12(2) of the Rules of Civil Procedure, counsel must select one of the options which Justice Brown describes as follows:

Option  B: I  will deal  with a  motion involving  up to  eight (8)  key  refusals (not categories, but actual refusals) at a 30-minute "Friday Morning Discovery Hearing"-see paragraph 10 below.  However, parties must understand that if they proceed by way of motion, I shall approach the costs of that motion on an "amount per refusal" basis, specifically $1,500.00  per refusal, payable within 30 days.  That is to say, if a party moves on 8 refusals, but succeeds only on two, it may risk adverse cost consequences of up to $6,000 (i.e. success on 2 refusals (+$3,000) less failure on 6 refusals (-$9,000), or a "net" adverse cost award of $6,000).  In addition, in assessing the costs of the motion I shall take into account the refusal of a moving party to have accepted an offer by the other side to use Rule 34.12(2) on the examinations. By communicating my approach to costs to the parties in advance of bringing a refusals motion, I wish to afford parties an opportunity to a take a sober look at exactly how many refusals are material for a fair determination of the issues at trial or final hearing and therefore require adjudication by this Court.  If a refusals motion will involve more than eight (8) refusals, it most likely will be referred to a Commercial List Master for hearing. 

Option C: The parties may identify those refusals in respect of which they wish to use Option A and those in respect of which they wish to proceed with a motion under Option B.  I offer this third option recognizing that in some actions important, proper questions may well be wrongfully refused on an examination and that fairness requires an adjudication of those refusals in advance of the trial so that the actual disclosure of specific information occurs before trial, rather than simply relying on the drawing of an adverse inference.  The number of such material refusals in any action usually is quite small and the cost consequences outlined in Option B should operate to confine the number of argued refusals only to very material issues". 

Justice Brown holds brief 30-minute hearings on discovery related disputes on Friday mornings between 8:30 a.m. and 9:30 a.m..

Importantly, if the hearing deals with refusals, no more than 8 refusals in aggregate will be dealt with at the hearing and the materials must be delivered no later than 5:00 p.m. on the Tuesday preceding the hearing date.

In respect of all other discovery-related matters, counsel must submit a joint letter, no later than 12:00 noon on the Thursday preceding the hearing date. Note that the letter should not exceed five (5) pages in length.

Encouraging counsel to use the 3 "C's" as referenced above, Justice Brown notes that preparation of a case for a final hearing on its merits without resorting to interlocutory motions represents the gold standard for hearing preparation.

Regarding interlocutory motions, an initial discussion of the procedural problem at a 9:30 attendance ought to proceed by the moving party presenting a draft of the notice and a draft of the order sought, and the responding party presenting a proposed resolution which would obviate the need for the motion.

If a scheduled motion will involve a hearing of three or more hours, Justice Brown prefers such a hearing to proceed on a "paperless" hearing.  

Counsel are directed to prepare electronic copies of the motion materials in accordance with the Toronto Region Commercial List e-Delivery Pilot Project Guidelines for Preparing and Delivering Electronic Documents requested by Judges found online. Click here to view. 

Counsel must also inform themselves of what Optical Character Recognition (OCR) is, with the pdf copies to enable text searching. Notably, imaged copies are not acceptable. 

Lawyers and their support staff, assistants, clerks and students, must all co-operate and file through the Commercial List Office, one USB key that contains the motion materials for all parties at least three (3) days before the hearing of the motion.

Finally, when requesting a date for summary judgment, counsel must demonstrate that they have engaged in the discussions contemplated by paragraph 73 of the Hryniak decision.

Paragraph 73 reads as follows:

"[73]  A motion for summary judgment will not always be the most proportionate way to dispose of an action.  For example, an early date may be available for a short trial, or the parties may be prepared to proceed with a summary trial.  Counsel should always be mindful of the most proportionate procedure for their client and the case".

Justice Brown emphasises that the Hryniak decision gives a judge the ability to reach a fair and just determination on the merits when, inter alia, the process is a proportionate, more expeditious and less expensive means to achieve a just result.  

Accordingly, Justice Brown directs that any party seeking a date for a summary judgment motion should file in advance of the request, a copy of the proposed notice of motion in the form prescribed in Schedule "A" to George Weston Ltd. v Domtar Inc., 2012 ONSC 5001. 

http://canlii.ca/t/fskln  

If a party opposes setting down a summary judgment motion, that party must file a brief letter proposing a means to which to determine the case on the merits which may be more proportionate, expeditious, and less expensive than a summary judgment motion.

With respect to service requirements, Justice Brown directs that the Commercial List E-Service Protocol applies to Will challenge proceedings as is directed at paragraph 18 of the Reasons for Decision.

The e-service protocol can be found online by clicking here.

2. Family Court of Australia - Oliver (Deceased) & Oliver , [2014] FamCA 57

http://www.austlii.edu.au/au/cases/cth/FamCA/2014/57.html

Capacity to Marry/Predatory Marriages:

A lawyer by the name of Micheal Webb, from Sydney, Australia, was kind enough to provide me with a copy of the decision rendered in the Family Court of Australia last week.  I send my gratitude to Michael Webb for providing me with a copy of this case, so that I can add it to my information collated on predatory marriages.

This case was recently decided two months ago.

The judge cited only two cases:

Babich & Sokur and Anor [2007] FamCA 236

Turner v Meyers, erroneously referred to as Turner [1808] EngR 163; (1808) 1 Hag Con 414

The facts are similar to Turner v Meyers, which decision is reviewed in my last "Capacity to Marry" paper as updated and appears on our website, WEL publications. [link]

The facts of the Family Court of Australia are all too familiar.

In this case, the marriage of Mr. Oliver and Ms. Oliver solemnized on April 2011, was declared as void in accordance with the Marriage  Act 1961 (Cth), Section 23B(1)(d)iii). The provision is excerpted as follows:

MARRIAGE ACT 1961 - SECT 23B

Grounds on which marriages are void

(b)  the parties are within a prohibited relationship;

(c)  by reason of section 48 the marriage is not a valid marriage;

(d)  the consent of either of the parties is not a real consent because:

(i)  it was obtained by duress or fraud;

(ii)  that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii)  that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

(e)  either of the parties is not of marriageable age;

The proceedings involved a declaration under the Family Law Act as to the validity of the marriage between Mr. Oliver deceased, and his wife, Ms. Oliver, the Respondent.

Overview of Facts:

• The marriage was celebrated in late April 2011 when the deceased was aged 78 and the Respondent was 49 years old.
• The deceased died in September 2013.
• The Applicant in the proceedings is the granddaughter of the deceased.
• The granddaughter contends that the marriage is invalid as the consent of the deceased to the marriage was not a real consent because at the time of the marriage he was mentally incapable of understanding the nature and effect of the marriage ceremony as provided for in section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).
• At the commencement of the proceedings, the deceased was still alive and a resident in a retirement village and required full-time care, as a result of immobility, general health and diminished cognitive capacity.
• At that time the financial affairs of the deceased were under the care of the New South Wales Trustee and Guardian following guardianship proceedings in August 2011. Prior to the guardianship, the deceased's affairs had been managed under Power of Attorney since 2005.
• The deceased, from at least 2001, had issues related to his mental capacity, other medical conditions and a long-standing abuse of alcohol.
• The deceased had been under the care of a specialist geriatrician from early 2001.
• The deceased was admitted to a hospital in April 2001, diagnosed with pneumonia, gait and balance disorder, cognitive impairment, postural hypotension, urinary incontinence and alcohol excess.
• The hospital records in relation to cognitive impairment spoke to problems with short term memory, probably mixed mild Alzheimer's and alcohol related, delirium, paranoid delusions and confused.
• The Applicant's evidence in her case is set out at paragraphs 17 -72 and interesting to understand the context of the cognitive concern as well as the circumstances of the marriage.

This case too, like many predatory marriages or predatory spousal-like relationships, was accompanied by the family receiving no notification of the marriage until after it had taken place.

The marriage and its circumstances are set out in paragraphs 73-94 and are all too familiar circumstances as we have come to know them in predatory relationships.

Suffice is to say that prior to the marriage, the respondent/wife attended with the deceased upon the deceased's solicitor and signed a new Will in contemplation of marriage leaving the whole estate to his wife.

The civil ceremony took place without notice to the granddaughter, and to any of the deceased's family. None of the neighbours and friends of the deceased were notified. The ceremony was only attended by the respondent's sister, parents, and the photographer.

In this case, the wife had been a paid carer for the deceased and his late wife since 2006.  Outside of her employment with the deceased, she was otherwise employed as a cleaner, and ceased working after she moved in with the deceased.

The court undertook a thorough review of the evidence from various family members, the deceased's family doctor, the wedding celebrant, the wife, the deceased medical history, the expert, a clinical neural psychologist, and the court summarized the evidence in a discussion excerpts as follows:

200.         Section 23B(1)(d) of the Marriage Act sets out grounds under which a marriage can be declared void. It is the Applicant's contention that, adopting the words of sub-subparagraph (iii) of that section that the deceased's consent was "not real consent" because he was "mentally incapable of understanding the nature and effect of the marriage ceremony".

201.      The relevant point of time in proving mental incapacity is the time of the marriage ceremony, not some other time before or after the ceremony.

202.      A history of the development of the law in Australia was set out by Mullane J in Babich & Sokur and Anor [2007] FamCA 236:

238.      The case law background to the English law has been considered more recently in a series of decisions by Justice Mumby of the Family Division of the High Court, particularly in Sheffield City Council v E & Anor. [2004] EWHC 2942 (Fam) 15 December 2005.

239.      Prior to 1959 in New South Wales there was no statutory test. In Mathieson (falsely called Perry) v Perry (1939) 56 WN (NSW) 89, Boyce J applied English case law as to the test of mental capacity and said:

Here I believe that the respondent knew he was getting married, but I do not think that at the time he was in such a condition that he appreciated and understood the real effect of the ceremony. The evidence before me has satisfied me that he had not a real appreciation of the engagement apparently entered into and was to all intents and purposes, insane at that time. [Footnote omitted]

240.      In reported Australian decisions since Park v Park, even after the introduction of the legislative test in Australia, it seems to be assumed that the English case law is directly applicable to the Australian legislative test, whereas that is not necessarily so.

241.      The legislative test was first introduced in Australia as part of S.18 of the Matrimonial Causes Act, 1959. It provided that a marriage was void if the consent of either of the parties "is not a real consent" because "that party is mentally incapable of understanding the nature of the marriage contract".

242.      That remained the test until the Matrimonial Causes Act 1959 was repealed by the Family Law Act 1975, and Sec.51 of that Act provided that a marriage that took place after commencement of that Act, is void if the consent of either party is not a real consent because "that party is mentally incapable of understanding the nature and effect of the marriage ceremony". [emphasis removed]

243.             The legislative test was subsequently moved by amendments in 1976 to subpara 23(1)(d)(iii) of the Marriage Act,1961. The same test is in subpara 23B (1)(d)(iii) of the Marriage Act, which was inserted in 1985.

244.    On the face of it the English common law test and the Australian statutory test are different, particularly because of the Australian test requiring that for a valid consent a person must be mentally capable of understanding the effect of the marriage ceremony as well as the nature of the ceremony. Whether in fact there is a difference in interpretation is another issue. [emphasis removed]

245.      In the 32 years since the legislative test has applied, there has not been a plethora of decisions of the Australian courts as to its interpretation. There are only 2 reported decisions that I was referred to and I located no others.

246.      The first of these is the decision of McCall J in Brown and Brown (1982) FLC 91-232, and the second is the decision of Chisholm J in AK and NC [2003] FamCA 1006; (2004) FLC 93-178. The current test of "mentally incapable of understanding the nature and effect of the marriage ceremony" was applied in both cases.

247.      In Brown and Brown both parties relied upon the dicta of Singleton LJ in In the Estate of Park quoted earlier. His Honour said, though:

The nature of the contract, and the responsibilities attaching to the particular marriage must vary from couple to couple. In the circumstances of this marriage the responsibilities were different to many others. The parties were, perforce, to live apart because of the husband's illness and the inability of the wife to properly care for him. It was a marriage in which the husband would, from then onwards, be confined to living in a hospital or nursing home situation where appropriate nursing home care was available to him. The wife, in the meantime, would continue to live in what had been their matrimonial home for fifteen years. The had during their time in Mandurah been regarded as husband and wife and the wife had apparently been known in that community as Mrs. Brown. Marriage, to them, did not involve living together. Nor did it involve undertaking any new responsibilities by either, or any change in an existing and long-standing relationship or situation. As the Reverend Barrett said in this context he assumed the husband knew what marriage was. The marriage was regularising a fact.

Although this man was not capable of writing or presumably looking after his own affairs which must have been left to the wife, in my view he nevertheless understood the step he was taking and the significance of it. I may not have come to this conclusion had this been a marriage between the husband and some person other than the wife. I accept the evidence that he knew his wife and he knew what he was doing, that is, that he was getting married. [Footnote omitted]

248. McCall J referred to no other decided case or other authority.

249. In AK and NC, Chisholm J held:

18. The relevant statutory provision, as applied to this case, is that the marriage will be void where the consent of the wife was not a real consent because she was mentally incapable of understanding the nature and effect of the marriage ceremony.

19. What does this provision require? In Park v Park the court held that the person in question was capable of understanding the nature and effect of the marriage, although he was not capable of making a valid Will. The court quoted a well-known remark by Sir James Hannan P:

"It appears to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between and man and a woman to live together and love one another as husband and wife, to the exclusion of all others."

20.          Both in law and in society, a marriage has a large variety of consequences. Few lawyers let alone non-lawyers would be able to make a comprehensive list of even the legal consequences. I note in this connection a reported exchange between an English judge and a medical witness as follows:

"Did you even know anybody who was in a condition to understand all the consequences of matrimony?

- No, my lord."

21.          It is clear from the authorities that the law does not require the person to have such a detailed and specific understanding of the legal consequences. Of course if there were such a requirement, few if any marriages would be valid.[4]

251. He then said:

24.          Reviewing these authorities, I agree with Dr Dickey that "mere awareness of going through a marriage ceremony is not enough; a person must also understand the nature and effect of the ceremony involved". (Anthony Dickey QC, Family Law (4th ed, 2002) at 175). This is illustrated by Mathieson v Perry, where Boyce, J said, granting a decree of nullity:

Here I believe the respondent knew he was getting married, but I do not think that at the time he was in such a condition that he appreciated and understood the real effect of the ceremony. The evidence before me has satisfied me that he had not a real appreciation of the engagement apparently entered into and was, to all intents and purposes insane at that time. I believe, in the words of [Dr N], he was unable to face ordinary marriage affairs. Part of the ceremony in the Church of England, where they were married, is a promise by the husband to forsake all others and to keep only unto her so long as both shall live; to such promise I believe he gave no rational assent.

And further:

28.          I am not aware of any other decision that so specifically identifies the required mental capacity with the particular circumstances of the parties. This approach is not really contemplated in the other authorities, so far as I am aware. The earlier authorities seem to have in mind a general understanding of the nature of marriage and the obligations it entails rather than the more specific consequences it might have for the individuals in question.

29.          It emerges from these authorities, I think, that a valid consent involves either a general understanding of marriage and its consequences, or an understanding of the specific consequences of the marriage for the person whose consent is in issue. It is not necessary, at least at this stage in the judgment, to rule on whether there is an inconsistency between these two approaches.

252.      The question arises whether under the Australian test there needs to be a general understanding of marriage and its consequences or an understanding of specific consequences of the marriage that the person is about to enter into.

253.      Dr Anthony Dickey QC has also expressed a view:

Although S.23B(1)(d)(iii) refers to a person being mentally incapable of understanding the nature and effect of the marriage ceremony, it would seem that there is in fact only one substantial requirement here, for an application of the nature of a marriage ceremony necessarily involves an appreciation of its general effect. (Such an approach was adopted by the majority of the Court of Appeal in In the Estate of Park (1954) p89 at 127 and 133, applied in Australia in Brown and Brown (1982) 60 FLR 212 at 222-223.)

254.    He has expressed a similar view elsewhere.

255.      It is not necessary in these proceedings to decide how wide the test in subpara. 23B(1)(d)(iii) is, but only whether it applies to the wife. But it is in my view significant that the legislation not only requires a capacity to understand "the effect" but also refers to "the marriage" rather than "a marriage". In my view taken together those matters require more than a general understanding of what marriage involves [emphasis added]. That is consistent with consent in contract being consent to the specific contract with specific parties, consent in criminal law to sexual intercourse being consent to intercourse with the specific person, and consent to marriage being consent to marriage to the specific person."

The court further discussed the evidentiary onus and opined that the nature of the marriage ceremony itself raised the presumption of regularity. The court opined that those asserting the marriage to be invalid must rebut the presumption on the balance of probabilities. In the end, the court identified the question to be determined as whether the deceased was mentally incapable of understanding the nature and effect of the marriage ceremony to the respondent wife.  On the balance of probabilities, the court was satisfied that the deceased had ongoing significant mental and cognitive incapacity, particularly in the 12-month period preceding the wedding ceremony. As such, the court concluded that the respondent would have to adduce evidence as to the deceased's capacity to understand the nature and the effect of the marriage ceremony at the time of the ceremony (Turner v Meyers).

Interestingly, the court concluded that the obligation cast upon the respondent spouse was to adduce such evidence as is reinforced by actual circumstances in the matter and the inferences arising therefrom, including but not limited to:

1. the age disparity between the parties to the marriage;
2. the nature of the previous relationship between the Respondent and the deceased in that the Respondent was a part-time carer of the deceased;
3. the significant financial disparity between the deceased and the Respondent;
4. the motivation of the Respondent in facilitating a change to the Will of the deceased with the effect of totally excluding family beneficiaries in her own favour should she survive the deceased;
5. the concessions made by the Respondent/wife as to her knowledge and observations of the deceased's behaviour evidencing cognitive incapacity and dementia over the 12 months preceding the wedding;
6. the evidence of concerns of others as to the Respondent's motives and whether she was in fact acting in the best interests of the deceased; and
7. the financial motivations of the Respondent in facilitating a marriage to the deceased.

Conclusion:

In the consequence, the court was satisfied that as at the date of the impugned ceremony, the deceased did not have the requisite capacity to understand the nature and effect of the marriage and declared the marriage to be invalid.

http://canlii.ca/t/g661r

The reasons for judgment of the Honourable Mr. Justice Armstrong of March 14, 2014, provide a recent addition to our law on the capacity to marry and predatory marriages.

This decision analyses the applicable law of marriages, voidable marriages, the capacity to marry and undue influence. 

This case is timely and topical not only with respect to the issue of the capacity to marry but the application of Hryniak, 2014 SCC 7, and the review of Justice Brown's decision in the Estate of Traitses per above and referenced in WEL Blogs (click to link):

1. Re Hyrniak
2. Re Traitses

The evidence of this summary trial application in accordance with the court's concluding summary, was exhaustive and fulsome.  The court applied Hryniak to conclude that resolving the action by summary trial was a suitable way to proceed in the circumstances of this decision.

The court was of the view that the issues in the dispute did not require a trial because the facts were thoroughly presented and cross-examinations on the relevant affidavits occurred before the application. The transcripts from each examination were placed into evidence, and the court assessed the relevant factors necessary to reach a conclusion in the matter.  The court further spoke to the appropriateness of the trial procedure given that the plaintiffs resided in Great Britain and many of the applicants would have been witnesses at the trial. Cross-examination of witnesses were conducted on the issues of both capacity and of undue influence. 

In its conclusion, the court was satisfied that the plaintiffs failed to meet the burden of proof that the marriage was invalid.  Notably, the court did find the challenges to the defendant's credibility and inconsistencies in her evidence did not affect the outcome of the application.

The court noted that the evidence was not equivalent to trial evidence but that it was sufficient to fairly resolve the dispute.

Summary of Facts:

• The deceased, Mr. Groves, was 77 years old when he married the defendant Suzanne Potvin, in November 2009, when she was age 56.

• Mr. Groves and Ms. Potvin were neighbours.

• Mr. Groves was isolated, lonely and not interested in socializing with other people.

• Mr. Groves did not appear to have friends or a social life.

• In November 2009, Mr. Groves and Ms. Potvin were married.

• Mr. Groves did in November 2010, leaving his nephew and niece, his only living relatives, other than the defendant, Ms. Potvin.

• Mr. Groves's niece and nephew attacked the validity of the marriage and Mr. Groves's 2010 Will.

• The deceased was a well-educated civil engineer who retired in 1986.

• The court had very little evidence about his life from 1986 through 2006, except that he was a reclusive man who kept to himself and had no friends ore relatives except the plaintiffs, niece and nephew.

• In 2007 he became acquainted with the defendant and they began socializing.

• In 2007, the deceased instructed his solicitor to prepare a Will and the observations of the solicitor were that the deceased was lonely, isolated and had no friends or family other than the plaintiffs.

• Mr. Groves did not proceed with making a Will at that time.

• In 2008, Mr. Groves instructed a new solicitor to prepare a Will and executed on the same month. The estate was to be divided equally between his nephew and his niece.

• Later in 2008, the deceased retained a new solicitor and prepared another Will, providing an equal division to his niece and nephew, the plaintiffs.

• In 2009, the deceased executed yet another Will, prepared by the same solicitor and divided the estate, one-quarter to each of the plaintiff niece and nephew, and one-half to the defendant.

• In 2009 the deceased married the defendant.

• After the marriage, the deceased made some transfers to his wife.

• In 2007 the deceased's health began to deteriorate with some mental concerns and it had deteriorated significantly by 2010, suffering from cognitive difficulties.

The Issues:

By way of summary, the plaintiffs sought a declaration annulling the marriage because the deceased's consent was procured by undue influence. In the alternative, the plaintiffs argued that the marriage was a sham, or that the deceased lacked the capacity to marry.

Additionally, the plaintiffs argued that the Wills in 2008, 2009 and 2010 occurred under suspicious circumstances and that the defendant unduly influenced the deceased to favour her in those Wills.

On the applicable law concerning the marriage, the following relevant paragraphs have been exerted from the judgment:

[33]        The Marriage Act includes the following requirement dealing with the validity of a marriage:

6.         Subject to this Act and any Act of Canada in force in British Columbia, the law of England as it existed on November 19, 1858 prevails in all matters relating to the following:

(b)        the validity of marriages;

(d)        the consent of guardians or parents, or any person whose consent is necessary to the validity of a marriage.

Void vs. Voidable Marriage

[34]        In Canadian Family Law, 5th Ed. Julien D. Payne and Marilyn A. Payne, the authors describe the distinctions between void and voidable marriages. At page 21, they say:

Marriages may be valid, void, or voidable accordingly to law. A void marriage is one that is null and void from its inception. It is regarded as though it had never taken place. A voidable marriage, on the other hand, is treated in law as a valid and subsisting marriage unless and until it is annulled by a court of competent jurisdiction. A voidable marriage can only be annulled on the petition of one of the spouses and the annulment must occur during the lifetime of both spouses. [...] A void marriage, however, is impeachable by third parties who "have an interest of some kind; for the object of the suit must be to procure the marriage to be voided on the ground that its validity may affect some right, or interest of the party promoting the suit". [... ]A void marriage may also be impugned collaterally after the death of one or both spouses.

[35]        The Court's authority to declare a marriage void is found in s. 5(1) of the Family Relations Act, R.S.B.C. 1996, c. 128:

The Supreme Court continues, subject to the Divorce Act (Canada), to have jurisdiction in all matters concerning the custody of access to and guardianship of children, dissolution of marriage, nullity of marriage, judicial separation, alimony and maintenance.

[Emphasis added.]

[36]        This proceeding was commenced under the former act and does not engage the Family Law Act, S.B.C. 2011, c. 25.

Capacity to Marry

[37]        The Adult Guardianship Act, R.S.B.C. 1996, c. 6 contains a presumption of capacity regarding an adult's decision:

Presumption of capability

3(1)      Until the contrary is demonstrated, every adult is presumed to be capable of making decisions about the adult's personal care, health care and financial affairs.

(2)        An adult's way of communicating with others is not grounds for deciding that he or she is incapable of making decisions about anything referred to in subsection (1).

[38]        The first question to be decided in this action is whether Mr. Groves had the capacity to marry the defendant.

[39]        Attacks on this marriage based on incapacity can only succeed if a preponderance of evidence demonstrates that Mr. Groves was incapable of forming the intent to marry the defendant. If he did not have the capacity to enter into a marriage, the marriage is void ab initio.

[40]        A party entering a marriage relationship must freely exercise the choice to marry and must understand the inherent marital obligations akin to a contractual relationship.

[41]        The Supreme Court of Canada in Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 (CanLII), 2002 SCC 83 described these obligations at paras. 199-201: [...]

[42]        Various decisions have addressed the issue of mental capacity and marriage. I will briefly summarize four decisions.

First, in Hart v. Cooper, [1994] B.C.J. No. 159 (S.C.),Lowry J. described the mental prerequisites for marriage at para. 30:

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.

[44]        In Hart, Lowry J. considered the elements necessary to challenge a marriage's validity because of mental incapacity. At para. 31, he said:

Where, as here, a marriage has, in form, been properly celebrated, the burden of proving a lack of mental capacity is born by the party who challenges the validity. What is required is proof on a preponderance of evidence. The evidence must be of a sufficiently clear and definite character as to constitute more than a "mere" preponderance as is required in ordinary civil cases: Reynolds v. Reynolds reflex, reflex, (1966), 58 W.W.R. 87 at 90-91 (B.C.S.C.) quoting from Kerr v. Kerr (1952), 5 W.W.R. (N.S.) 385 (Man. C.A.).

[45]        Second, in R.H. v. R.T., 2011 BCSC 678 (CanLII), 2011 BCSC 678 [R.H.] Maisonville J. considered the appropriate test to apply in assessing a claim of nullity based on an allegation of duress. She said at para. 78:

There is a presumption of the validity of the marriage, and the onus is on R.H. to establish complete lack of consent through duress. To establish duress:

Very clear and cogent evidence is needed to rebut the presumption of marriage where there is no evidence to the effect of the plaintiff's demeanour at the time of marriage showed stress or fear.

Davies, Family Law in Canada, Carswell 1984 at 69.

[46]        Third, in A.B. v. C.D., 2009 BCCA 200 (CanLII), 2009 BCCA 200 [A.B.], the Court considered the measure of capacity necessary for a spouse to be able to decide to live separate and apart; the Court concluded that the test was equivalent to the capacity to marry test. They affirmed the importance of considering a person's autonomy to make decisions about their lives. At para. 36, Smith J. summarized the Court's conclusions:

In summary, disordered or delusional thinking which may contribute to an individual's intention to live separate 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.

[47]        The Court also addressed the issue of the standard of capacity necessary to form the intention to marry. At paras. 27-28, Smith J. said:

27        It is significant that the parties agree with the chambers judge's adoption of Professor Robertson's characterization of the capacity to form the intention to live separate and apart as being the equivalent to the capacity to marry. They also agree with his view that both forms of capacity engage a lower standard than the capacity required to manage one's own affairs and instruct counsel. Thus, the capacity to form the intention to live separate and apart is subsumed within the capacity or competency of an individual to manage their own affairs and instruct counsel.

28        I agree with Professor Robertson's characterization of the different standards of capacity. His characterization differs from the articulation of the standard of capacity necessary to form the intention to leave a marriage that was adopted in the English decisions of Perry v. Perry, [1963] 3 All ER 766 and Brannan v. Brannan, [1973] 1 All ER 38. In these cases, the courts decided that when a spouse suffers from delusions that govern a decision to leave the marriage, the delusional spouse does not have the requisite intent to leave the marriage. This standard differs from that described by Professor Roberts, which focuses on the spouse's overall capacity to manage his or her own affairs.

[48]        Fourth, in Wolfman-Stotland v. Stotland, 2011 BCCA 175 (CanLII), 2011 BCCA 175, leave to appeal ref'd [2011] S.C.C.A. No. 242 [Wolfman], the Court also considered the capacity of a spouse to form the intention to separate (and to marry).

[49]        In that case, the wife was "cognitively impaired or that she is incapable of managing her financial affairs", and the Court adopted a framework from Calvert (Litigation Guardian of) v. Calvert 1997 CanLII 12096 (ON SC), 1997 CanLII 12096 (ON SC), (1997), 32 O.R. (3d) 281 (G.D.), aff'd 1998 CanLII 3001 (ON CA), 1998 CanLII 3001 (ON CA), (1998), 37 O.R. (3d) 221 (C.A.), leave to appeal ref'd [1998] S.C.C.A.  No. 161 for considering the capacity to make a decision to separate or to marry, para. 26:

A useful discussion of the hierarchy of levels of capacity is found in Calvert at paras. 54-56:

[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. (I note that Mr. Birnbaum felt that, in August 1994, he would have taken instructions for a will but for Dr. Hogan's concern about her ability to instruct counsel.) While Mrs. Calvert may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce.

[50]        There is a presumption of validity of a marriage and this presumption can only be displaced by very cogent evidence. This evidence must focus on the spouses'  ability to make personal decisions about the way that person wishes to live their life and must clearly identify features of the person's decision making powers that would establish the person did not understand the simple promises made and given at the time."

Undue Influence

On undue influence, the general principles of undue influence as applied to each of the categories of the issues set out above, were reviewed and exerted as follows:

[53]        In Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353 [Geffen], Wilson J. explained the indicia of undue influence of one person in a relationship with another. At 377, she said:

[54]        Dependency by one on the other can raise the presumption of undue influence: Bale v. Bale, [2008] O.J. No. 58 (O.N. Sup. Ct.).

[55]        In Ogilvie v. Ogilvie Estate, [1998] B.C.J. No. 722 (C.A.) [Ogilvie] at para. 7 the Court cited Allcard v. Skinner (1887), 36 Ch. D. 145 (C.A.) [Allard]:

These two considerations were addressed by Lord Justice Cotton in Allcard v. Skinner, supra, at 171:

[56]        The Court also highlighted the practical limitation on the doctrine:

What then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly? or is it that it is right and expedient to save them from being victimized by other people? In my opinion the doctrine of undue influence is founded upon the second of these two principles. Courts of Equity have never set aside gifts on the ground of the folly, imprudence, or want of foresight on the part of donors.

[57]        Where a pre pre-existing relationship of trust or confidence exists between a donor and recipient of property with the inherent ability of the recipient to influence the donor through manipulation or coercion or abuse of power the gift or the bequest will be set aside. If there are suspicious circumstances in the relationship between the two, an evidentiary presumption of undue influence arises and the burden shifts to the recipient to establish that the donor or testator made the gift without influence and as a result of their own full, free, and informed thought.

[58]        Setting these types of gifts aside is necessary to prevent the abuse of influence inherent in relationships between persons of unequal mental capacity and power: Allard; Geffen.

[59]        These relationships must be examined for the potential of domination inherent in the relationship or the measure of trust and confidence reposed by donor or to the recipient. Geffen at para 43.

[60]        Vulnerability of the donor is the hallmark of the relationship where the recipient is able to exercise undue influence for their own purposes."

The court's analysis on the capacity to marry appears at paragraphs 177 through 240, with the starting point of the analysis being that marriages are presumed to be valid in the absence of clear and cogent evidence to the contrary.  As stated above, the court rejected the plaintiffs' argument although noted there was evidence of the deceased's declining mental and physical health, but that the plaintiffs failed to prove on a balance of probabilities that he did not have the capacity to marry, or alternatively, was unable to consent to the union.

The court correctly identified the tension in the analysis as between preserving the deceased's personal autonomy and the deceased's right to choose how to spend the balance of his life against the possibility that he did not fully appreciate how marriage affected his legal status or his contractual obligations.

The court opined that a court can only annul a marriage due to the absence of consent if an individual does not understand the nature of the marriage contract and the duties flowing from it.

The court reviewed the evidence of the deceased's lawyers, medical evidence, and the evidence of the plaintiffs and the defendant.

Notably, the court opined at paragraph 188, that the phrase "incapable of managing one's affairs" can have a range of meanings inconsistent with the conclusion that, in this case, Mr. Groves was incapable of making the decision to marry.

The court determined that the deceased's marriage was a conscious act on his part.

The court found that the deceased was capable of understanding, that he was forming a union with the defendant that would benefit him for the balance of his life and would benefit the defendant through his estate when he died, and therefore ultimately concluded that the plaintiffs failed to meet the burden of proof that would permit the court to declare the marriage null and void.

Similarly, on the grounds stated respecting the allegation of undue influence to marry, the court concluded that the evidence was insufficient.

The court at paragraph 218 of its judgment opined as follows:

"it would be inappropriate to establish a principle that prevents elderly or functionally impaired persons from making decisions to marry a person who is also their current caregiver when he or she retains the required capacity to enter into a marriage contract. Different considerations might apply in cases where caregivers are paid to provide services to a disabled person but only in the context where duress exists...

And at paragraph 219, the court further opined:

"that the obvious risks of abuse might be inherent in these types of relationships, the decision to marry and the reasons for the decision are varied, and such a decision may be crucial to the elderly or functionally impaired person's autonomy. It would be unsafe for courts to interfere by compelling these parties to obtain independent legal advice before considering marriage as suggested by the plaintiffs."

Conclusions:

The court did find that the deceased was vulnerable at the time of the marriage. The evidence further revealed that the deceased did have worries and concerns that he would not be able to remain in his home for the balance of his life, but nothing in the evidence revealed that the defendant threatened or coerced the deceased in any way.

The court in this regard concluded that the defendant did not initiate the marriage and did not threaten the deceased with abandonment if not given large gifts or made to be a spouse.

Finally, the court did not find any evidence of actual undue influence and any evidence of weight insufficient to demonstrate a lack of free will or clear intention to meet the high test necessary to annul a marriage.

Since the court dismissed the issue of undue influence as not a factor in the proceedings, it is unknown whether or not, if the court found that undue influence existed, whether the court would have been prepared to set aside or annul, void or invalidate the marriage on the grounds of undue influence. This would have been instructive.

The only further comment the court made regarding undue influence in relation to the marriage was at paragraph 240, in which it was stated:

"I have concluded that the burden of proof regarding a challenge to a marriage based on a claim of undue influence is the same as the burden of proving a lack of capacity. The plaintiffs must prove that the defendant's actual influence deprived the deceased of free will to marry or refuse to marry Ms. Potvin. The plaintiffs have failed to meet the burden of proving that Mr. Groves was not able to assert his own will."

It would seem that the court may have been prepared to entertain that the marriage could be challenged on the grounds of undue influence had the burden of proof on a balance of probabilities been established.

The court decision further includes an analysis and reasons on the matter of undue influence as it relates to the testamentary dispositions and I leave it to you to review the decision in this regard.

1. STEP Canada - Toronto Branch

April 17, 2014

Building Your Competencies Beyond Your Professional Skills: How to Support a Grieving Client

Featured Speaker: Kimberly Whaley

http://www.step.ca/programs.asp?b=Toronto

2. OBA, Trusts and Estates Law

April 22, 2014

Dinner with Your Honourable Estate List Judges

Chair, Ameena Sultan

http://www.cbapd.org/details_en.aspx?id=ON_14TRU0422T

April 29, 2014 - Responsibility of Solicitors Facing Undue Influence

Speaker:  Kimberly Whaley

http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE14-0040701

4. STEP Canada - Toronto Branch

May 8, 2014

Estate Trustee Liability

Speaker: TBA

http://www.step.ca/programs.asp?b=Toronto

5. Senior Practitioner's Forum, Estate Planning and Litigation Forum

May 12-14, 2014

Langdon Hall, Cambridge, Ontario

Speaker: Kimberly Whaley, Predatory Marriages

http://www.eplforum.ca/

6. OBA

May 15, 2015

Real Estate and the Elderly Client 

Speaker: Ameena Sultan 

7. NICE Knowledge Exchange

May 21, 2014

Law and Aging - The Rasouli Case at the Supreme Court:  Now Who Gets to Decide End of Life? Panel Discussion

Kimberley Whaley, LLM,  Mark Handelman, LLB, MHSc(bioethics) and Marshall Swadron, LLB

http://www.nicenet.ca/ke-home

8. World Congress on Adult Guardianship

2014 Arlington, Virginia USA

May 28, 2014 - May 30, 2014

www.WorldCongressGuardianship.org

9. B'Nai Brith Seminar

June 2, 2014 - Rasouli Case and the issues arising from same: Review of the Court's Role Under HCCA

Speaker:  Kimberly Whaley

10. Osgoode Professional Development, Webinar

Estate Litigation Arising from  Later  Life Partnerships

June 5, 2014

Presenters: Kimberly Whaley, Heather Hogan 

Toronto

June 16-17, 2014

http://www.step.ca/2014conference.asp  

12. Baycrest Foundation, Professional Advisory Group

June 17, 2014, Elder Care and/or Estate Planning

Speaker:  Kimberly Whaley and Dr. Gordon

baycrest.org/give

13. CBA Webinar

Protecting Older Adults from Financial Abuse: Are We Doing Enough?

June 18, 2014

Speaker: Kimberly Whaley and Heather Hogan

14. 2014 CBA Elder Law Legal Conference

St. John's, Newfoundland

August 15-17, 2014 Until Death Do Us Part? Estate Claims Arising Out of Re-Partnerships:

A Cross-Provincial Perspective

Speakers: Kimberly Whaley and Heather Hogan

http://www.cba.org/newfoundland/main/Home/

15. Osgoode Professional Development, Webinar

September 11, 2014   

Fiduciary Accounts: Preparing, Passing, and Reviewing

Presenters: Saara Chetner, Heather Hogan, Birute Lyons

16. Practice Gems: The Administration of Estates 2014

September 23, 2014

Chair: Kimberly Whaley

Speakers: Clare Burns;  Archie Rabinowitz and David Lobl;   Jordan Atin;  Laura Tyrrell; Gwen Benjamin; Lee  Ferrier , Hershel Gross, Tara Stead, and Barbara Krever

17. STEP Winnipeg

October 23, 2014

Speaker: Kimberly Whaley , Predatory Marriages

18. LSUC Estate and Trust Summit  2014

November 3, 2014

Speaker: Kimberly Whaley

19. STEP, Global Congress , Miami

Mandarin Oriental Miami

November 6-7, 2014

Kimberly Whaley, Attendee

http://www.stepglobalcongress.com

20. STEP Canada

February 11, 2015

Financial Abuse: Detection and Intervention

Chair: Kimberly Whaley  

This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Marylin Tait 

Legal Assistant

(416) 355-3255

Leigh Wallace 

Legal Assistant

(416) 355-3253

Francesca Latino

Legal Assistant