Court Details and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211014 DOCKET: C69056

Lauwers, Harvison Young and Sossin JJ.A.

BETWEEN

Raymond Tanti Applicant (Appellant)

and

Paul Tanti and the Public Guardian and Trustee Respondents (Respondents in Appeal)

and

Sharon Joseph Respondent (Respondent in Appeal)

Counsel: Kevin Scullion, for the appellant, Raymond Tanti Marek Z. Tufman, Gregory Tufman and Joy Nwawe, for the respondent, Sharon Joseph M. Kathleen Kinch, for the respondent, Paul Tanti

Heard: October 1, 2021 by video conference

On appeal from the judgment of Justice Renu J. Mandhane of the Superior Court of Justice, dated December 22, 2020, with reasons reported at 2020 ONSC 8063.

Reasons for Decision

[1] This appeal concerns the capacity of a person to enter into a marriage.

[2] Paul Tanti and Sharon Joseph were married on July 27, 2019.

Overview

[3] On September 12, 2019, Paul Tanti’s son, Raymond Tanti, sought a guardianship order with respect to his father’s property and person. Harris J. of the Superior Court of Justice granted that order on the basis that Paul Tanti was incapable of personal care and managing property.

[4] The Office of the Public Guardian and Trustee appointed counsel for Paul Tanti in November 2019. His counsel does not take a position on the validity of the marriage.

[5] Ms. Joseph subsequently brought a motion to set aside the guardianship order. On July 31, 2020, Shaw J. ordered that she be added as a party to the guardianship proceedings. Shaw J. also ordered the issue of the validity of the marriage of Paul Tanti and Ms. Joseph to be determined as a threshold issue in the application.

[6] After a trial on the issue of the marriage’s validity, Mandhane J. determined that the marriage was valid by judgment dated December 22, 2020.

[7] Subsequently, on May 27, 2021, Trimble J. of the Superior Court granted a stay of the guardianship proceedings pending disposition of the appeal of the order of Mandhane J. Ms. Joseph attempted to appeal the order of Trimble J. to this court (C69521), and brought a motion to expedite that appeal. On July 13, 2021, Benotto J.A. dismissed the motion, holding that the order of Trimble J. was procedural and interlocutory and that no appeal lies to this court. This court upheld that decision: Tanti v. Tanti, 2021 ONCA 607.

[8] Here, the only issue before this court is Mandhane J.’s decision on the validity of the marriage.

[9] For the reasons that follow, we dismiss the appeal.

The Trial Decision

[10] The trial judge described the issue being tried before her as follows:

[37] Raymond’s sole basis for attacking the validity of the marriage is his argument that Paul did not have the requisite capacity to marry Sharon in July 2019.

[38] In the face of a legal marriage, Raymond has the burden of satisfying me that Paul lacked capacity to marry Sharon: Hunt v. Worrod, 2017 ONSC 7397 at para. 13; Re McElroy, [1978] 2 O.R. (2d) 381 (Surr. Ct. J.). 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, 58 W.W.R. 87 at p. 90-91 (B.C.S.C.).

[11] The trial judge instructed herself on the relevant law relating to a person’s capacity to marry:

[40] In determining legal capacity, courts are asked to balance individual autonomy against the vulnerability that can come with age or disability: Hunt v. Worrod at para. 10. The overarching goal is to ensure that people retain decisional autonomy in as many domains as possible, even if they must be protected from harm in others: Kimberly Whaley et al., Capacity to Marry, (Aurora: Cartwright Group, 2010), at p. 101. Indeed, people with mild cognitive impairment, dementia or Alzheimer’s disease can be capable decision-makers depending on the situation: Kenneth Shulman et al., “The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity” (2020) Can J Psychiatry 1.

[41] The determination of legal capacity is fluid: it is decision, time, and situation specific: Hunt v. Worrod, at para. 13. Medical-legal capacity is a social construct that requires the trier of fact to take into account factors that go beyond simple medical assessments of capacity: Whaley, at p.99.

[42] The requirements of legal capacity vary significantly as between different areas of law and must be applied to the specific decision, act or transaction at issue. For example, it is generally agreed that the capacity required to marry is lower than the capacity required to execute a will or grant a power of attorney for property or personal care: Whaley, at pp. 45-46.

[43] The test for capacity to marry is a simple one. The parties must understand the nature of the marriage contract, and the duties and responsibilities that flow from it: Chertkow v. Feinstein, 1929 CarswellAlta 23, 24 Alta LR 188, at p. 191. Understanding the content of the marriage contract does not require a high degree of intelligence; the parties must agree to live together and love one another to the exclusion of all others: Lacey v. Lacey (Public Trustee of), [1983] B.C.J. No. 1016 (S.C.).

[44] The court in Ross-Scott v. Potvin, 2014 BCSC 435 at para. 200 noted that the inability to manage one’s financial affairs would “not necessarily impact a person’s ability to consciously consider the importance of a marriage contract. Nor do they necessarily impact formation of an intention to marry, a decision to marry, or the ability to proceed through a marriage ceremony.” A person may be capable of marrying despite having been declared mentally incompetent or having had a guardian for person or property: Whaley, at p. 45.

[45] The Court of Appeal for Ontario in Knox v. Burton (2004), 6 E.T.R. (3d) 285, aff’d 14 E.T.R. (3d) 27 noted that the assessment of capacity must be time specific: Costantino v. Costantino, 2016 ONSC 7279 at para. 53. Expert examinations or assessments that do not state when the incapacity occurred, or are not contemporaneous with the giving of instructions, may be less probative than the evidence of the individual who took the person’s instructions at the time: Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (Ont. S.C.), at para. 4.

[46] Finally, capacity is situation specific: Hunt v. Worrod, at para. 13. I must assess Paul’s specific capacity to marry Sharon, which makes the overall context of their relationship relevant. [Emphasis added.]

[12] Based on four days of evidence and testimony from eight witnesses applied to the test as set out above, the trial judge found Paul Tanti possessed the requisite capacity to marry. She found that this marriage was not “a rush to the altar” but rather reflected a long-term relationship between mature adults.

[13] While there was some indication of Paul Tanti’s cognitive decline prior to the marriage, the trial judge found no persuasive evidence that, at the time of the marriage, his cognitive status had diminished to the point that he was unable to make decisions regarding his day-to-day affairs or living arrangements.

[14] The trial judge further held that whether or not Ms. Joseph stood to benefit financially from the marriage was irrelevant to the question of the marriage’s validity in the absence of evidence of duress.

[15] The trial judge rejected or discounted the evidence of several experts given on behalf of the appellant but relied on the direct evidence of a lawyer Paul Tanti consulted, Desmond Brizan, who testified that Paul Tanti was able to provide him with coherent instructions to prepare a power of attorney over property at the time of the marriage.

[16] The trial judge concluded, “[o]verall, I find that Raymond has not adduced sufficient evidence to satisfy me it is more likely than not that Paul lacked the capacity required to marry Sharon on July 29, 2019. Paul and Sharon’s marriage is valid.”

The Standard of Review

[17] The standard of review for questions of law determined by the trial judge is correctness. For intervention on questions of fact or mixed fact and law, it is necessary to demonstrate that the trial judge committed a “palpable and overriding” error.

[18] Further, this court should be reluctant to interfere with the exercise of the trial judge’s discretion unless the trial judge has exercised his or her discretion arbitrarily, capriciously, or the decision was based upon a wrong or inapplicable principle of law: Kostopoulos v. Jesshope, 50 O.R. (2d) 54 (C.A.) at pp. 69-70, leave to appeal refused [1985] S.C.C.A. No. 93.

Issues

[19] The appellant raises five grounds of appeal:

i. The trial judge applied the wrong test to determine Paul Tanti’s capacity to marry; ii. The trial judge relied on her own research without allowing the parties to make submissions on the point; iii. The trial judge failed to accept certain expert evidence; iv. The trial judge accepted the evidence of a lay witness without permitting meaningful cross-examination; and v. The trial judge demonstrated a reasonable apprehension of bias necessitating a new trial.

[20] Each issue is addressed below.

(i) The trial judge applied the correct test for the capacity to marry

[21] We are satisfied that the trial judge instructed herself properly on the test for the validity of a marriage. She correctly stated that, for a marriage to be valid, the parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it. She properly emphasized that the inquiry into the validity of a marriage is situation specific.

[22] The appellant argues that the degree of capacity needed for a valid marriage exceeds that for a power of attorney over personal care and akin to a power of attorney over property.

[23] It is not necessary to address the relative degrees of capacity for different determinations in light of the trial judge’s finding on the evidence that, in this case, Paul Tanti possessed the requisite capacity to enter into the marriage; he understood the nature of the marriage contract and the duties and responsibilities that flowed from it.

[24] For example, the trial judge found, at para. 70, “Paul appreciated the consequences of the marriage. For example, a few days after the marriage, Paul told Carol that he refused to remove Sharon from his home because she was his wife. Paul also instructed Mr. Brizan to make changes to his affairs that were consistent with Sharon being his life partner.”

[25] Therefore, we reject the submission that the trial judge applied the wrong test to the validity of the marriage.

(ii) The trial judge did not err by considering authorities not raised by the parties

[26] In his factum, the appellant points to several academic articles and cases cited by the trial judge that were not referenced in the factum or oral arguments of the parties and argues that he was prejudiced as a result of her reliance on these sources. We note that this argument was not pressed in oral argument. In any event, we reject this submission.

[27] It is in not inappropriate for a judge to consider relevant authorities regardless of whether they were raised by the parties: Heron Bay Investments Ltd. v. Canada, 2010 FCA 203, 405 N.R. 73, at para. 22. Further, there is no indication that the trial judge only relied on such sources or failed to consider the authorities raised by the parties along with her own research. We see no basis to intervene.

(iii) The trial judge did not err by rejecting the expert evidence

[28] The trial judge provided a cogent explanation for why she was not persuaded by the expert evidence. She explained that the expert evidence was not contemporaneous with the marriage. On that basis, she rejected one medical expert, Dr. Pallandi, whose assessment took place in May 2020.

[29] While accepting the admissibility of the other three other medical experts, the trial judge accorded little weight to these reports. She stated, at para. 52, “I accept Sharon’s argument that the evidence of Dr. Varga, Dr. Stall, and Dr. Marotta cannot be afforded much weight. Foremost, none of the experts provided a contemporaneous opinion on Paul’s capacity to marry, and their assessments of his capacity to manage property are largely irrelevant to my determination.”

[30] The trial judge did not exercise her discretion arbitrarily or capriciously, and we see no error in principle in her assessment of the admission of and weight to be given to the expert evidence.

(iv) The trial judge did not err in accepting direct evidence of a witness absent meaningful cross-examination

[31] The trial judge accepted and placed “significant weight” on the evidence of Mr. Brizan, a lawyer acting for Paul Tanti, who was instructed to prepare a power of attorney within four days of the marriage. Mr. Brizan testified that, in his view, Paul Tanti understood the implications of a power of attorney over property and care.

[32] The trial judge prevented cross-examination of Mr. Brizan only on matters subject to solicitor-client privilege. He was otherwise open to cross-examination. We see no basis to conclude that the trial judge erred in her treatment of this evidence.

(v) The trial judge was not biased

[33] The appellant raised a number of the trial judge’s factual and evidentiary findings as grounds for a reasonable apprehension of bias. We note that this argument also was not pressed in oral submissions.

[34] We find no basis for the submission that the trial judge’s conduct in making these legal and factual determinations could give rise to a reasonable apprehension of bias. She simply found no evidence suggesting that Paul Tanti’s cognition was diminished to the extent that he did not have the capacity to marry.

Disposition

[35] For the reasons given, the appeal is dismissed.

[36] The respondent is entitled to costs. The appellant and respondent Ms. Joseph have agreed that the quantum of costs to the successful party would be $16,000, all inclusive. The Public Guardian and Trustee counsel appointed for the respondent Paul Tanti is not seeking costs and none are awarded.