DATE: 20041105

DOCKET: C40117

COURT OF APPEAL FOR ONTARIO

RE:

QI LI FENG (Applicant) (Appellant) – and – THE ESTATE OF KAM YUEN, deceased, JANE YEUNG, EVIN SUNG, TIMMY SUNG, JIMMY SUNG, TONY SUNG (Respondents)

AND RE:

THE ESTATE OF KAM YUEN SUNG, deceased, JANE YEUNG, KEVIN SUNG, TIMMY SUNG, JIMMY SUNG and TONY SUNG (Applicants) – and – QI LI FENG (Respondent)

BEFORE:

DOHERTY, WEILER and SIMMONS JJ.A.

COUNSEL:

J. Reed Hunter (Q.C)

for the appellant

Bill Wong

for the respondents

HEARD & RELEASED ORALLY:

November 2, 2004

On appeal from the judgment of Justice Susan E. Greer of the Superior Court of Justice dated April 28, 2004.

E N D O R S E M E N T

[1] The main issue on this appeal is whether the trial judge erred in holding that the deceased did not have the capacity to enter into marriage with the appellant.

[2] In holding that the deceased lacked the capacity to enter into the marriage, Greer J. accepted the evidence that the deceased‘s health rapidly declined in August. The appellant was extremely ill with terminal cancer. He required the full time assistance of a care-giver. He used a respirator to breathe, was taking massive amounts of medication on an hourly schedule, and, in the latter part of August had to be transported in a wheelchair. He had been given chemotherapy and tired easily. In addition he had Parkinson’s disease and had lost control of his bowels.

[3] On August 21, one week after the deceased had been to see his solicitor about entering into a marriage contract, he went to the emergency department of the hospital because he was coughing up blood. At this time the deceased was also found to have pneumonia. He returned to the hospital again on August 28 and September 1 in the same condition. He was too weak to pick up a pen to sign his discharge papers on September 1.

[4] Alicia Sung, the deceased’s daughter-in-law, who sat with the deceased for three hours in the emergency room at the hospital on August 21, testified that the deceased’s mind was “cloudy all over. He…was very weak and I don’t know that he was that clear in his mind.” She also testified that Sung sat with his head drooped the entire time and that he really wasn’t speaking.

[5] The deceased’s son Tim testified that his father wasn’t very responsive. Sometimes when asked a question he would not respond. He would just sit there with a blank stare. Sometimes he would answer just one word answers.

[6] Dr. Lodenquai, the deceased’s family physician, testified that in the physical and mental state the deceased was in, he was unable to think clearly or logically at the time. His condition could fluctuate but most of the time he would be in a poor mental state. (He also testified that the appellant would have been unable to consummate the marriage not only because of his illness but because he suffered from erectile dysfunction.)

[7] As further evidence that the deceased lacked the capacity to enter into marriage on the day in question the respondent relies on the fact that Sung did not tell his children that he was about to be married although he was very close to them and saw one of his sons on the day of his marriage.

[8] In our opinion, while the case is a close one, it was nevertheless open to the trial judge to make the finding of incapacity that she did.

[9] In view of our conclusion, we need not address the trial judge’s other findings relating to fraud, duress and undue influence, nor the issue of whether these would render the marriage only voidable as opposed to void.

[10] The appeal with respect to costs at trial was not pursued.

[11] The appeal is dismissed. The order of Greer J. of the Ontario Superior Court of Justice dismissing the appellant’s application for monetary relief under the Family Law Act and the Succession Law Reform Act is affirmed. Costs of the appeal are to the respondent fixed in the amount of $10,000 all inclusive.

“Doherty J.A.”

“Karen M. Weiler J.A.”

“Janet Simmons J.A.”