Hunt v. Worrod, 2017 ONSC 7397
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kevin Hunt c/o his Court appointed guardians Bradley James Hunt and Justin Abraham Hunt, Applicants
– and –
Kathleen Anne Worrod, Respondent
COUNSEL: Andrea McEwan and Amanda Bettencourt, for the Applicants D. Andrew Thomson, for the Respondent
HEARD: June 5, 2017 – June 9, 2017; July 26, 2017 – July 27, 2017; September 6, 2017; September 8, 2017; November 6, 2017
Reasons for Decision
E.J. KOke
INTRODUCTION
1On June 18, 2011 the 50-year-old applicant was involved in an ATV accident in which he sustained a catastrophic brain injury. Following the accident, he was transported to Health Sciences North (“Sudbury General Hospital”) where he remained in a coma for 18 days. Eventually, on October 21, 2011, after undergoing extensive occupational and physiotherapy he was released into the care of his two sons, James and Justin Hunt, and he was permitted to return to his home in the Town of Novar, Ontario.
2Prior to the accident Mr. Hunt was involved in what can generally be described as an on again, off again relationship with the respondent, Kathleen Anne Worrod. At the time of the accident Ms. Worrod was subject to a recognizance related to impaired driving and breach of recognizance charges. Her two daughters were her sureties and it was a condition of her recognizance that she live with her sureties in the City of Barrie, Ontario.
3In the early morning of October 24, 2011, three days after he arrived home and unbeknownst to his sons, Mr. Hunt was picked up on the roadway outside of his home by Ms. Worrod’s uncle, Ted Konwent. James and Justin were concerned when they discovered that their father was missing. Their father had left the house without his medication. Furthermore, they had received extensive training in caring for him and assisting him in his rehabilitation and to the best of their knowledge he was not in the company of anyone who was trained to look after his medical needs. Ultimately, they were able to contact Mr. Hunt by cell phone and he informed them that he was being driven to Parry Sound, Ontario, to price out a foundation job. This was confirmed by Mr. Konwent.
4This information merely added to their concerns. Prior to his accident, Mr. Hunt had worked as a self-employed landscaper; he was not a builder and he did not construct foundations. Furthermore, he lacked the cognitive and physical abilities to carry out such functions as a result of his injuries.
5Eventually, later that day, Mr. Hunt’s sons were able to track their father to a hotel in Collingwood, Ontario by obtaining particulars of his credit card purchases. The police were notified and attended the hotel. When James and Justin arrived at the hotel that evening they discovered that arrangements had been made for their father to marry Ms. Worrod that afternoon. The wedding had already taken place. Although members of Ms. Worrod’s family were present at the wedding, no one from Mr. Hunt’s family, nor any of his friends were present or had been notified about the marriage. The police released Mr. Hunt into the care of his sons.
6Ms. Worrod was not in the company of her sureties and she was charged with breaching her recognizance.
THE ISSUES
7This case raises the following issues:
a) Did Mr. Hunt have the capacity to marry Ms. Worrod on October 24, 2011? If not,
i) is the marriage void ab initio?
ii) in the alternative, is Mr. Hunt’s marriage void on the basis of the equitable doctrine of unconscionability or unjust enrichment?
b) What entitlement, if any, does Ms. Worrod have to the home owned by Mr. Hunt in Novar, Ontario?
c) Should the court make an order permanently prohibiting any contact and communication between Ms. Worrod and Mr. Hunt?
FIRST ISSUE: Did Mr. Hunt have the Capacity to marry Ms. Worrod?
Mental Capacity - The Legislation
8The Marriage Act, R.S.O. 1990, c. M. 3 states:
Persons lacking mental capacity
Section 7. No person shall issue a licence to or solemnize the marriage of any person who, based on what he or she knows or has reasonable grounds to believe, lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason.
Mental Capacity - The Common Law
9The test for determining whether a person has the capacity to enter a marriage is summarized at paragraph 177 of the British Columbia Court of Appeal decision in Ross-Scott v. Potvin, 2014 BCSC 435. The court stated:
A person is capable off entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and duties and responsibilities it creates. The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs. Delusional thinking or reduced cognitive abilities alone may not destroy an individual’s capacity to form an intention to marry as long as the person is capable of managing their own affairs.
10In determining whether a person has the capacity to enter into a marriage contract, the tension in the analysis is between preserving Mr. Hunt’s personal autonomy and the 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 contractual obligations.
11There is a heavy burden on the applicants to ensure that Mr. Hunt’s autonomy is respected. A court should only reject a person’s autonomy in the clearest of cases, where an individual lacks a “clear, free and personal choice.” Consequently, a court can only annul a marriage due to absence of consent if an individual does not understand the nature of the marriage contract and the duties flowing from it… see Ross-Scott v. Potvin, supra at para. 187,188.
12Where lack of capacity is established, the marriage is void ab initio, meaning it is as if it never happened. The marriage is null and void from the start… see Feng v Sung Estate, (2003) 1 ETR (3d) 296, affd 11 ETR (3d) 169 (ONCA), at para 66 [Sung Estate].
13Capacity is decision, time, and situation specific. Specifically, the relevant time period in evaluating an individual’s capacity to make a particular decision is the time at which the decision is made. One is presumed capable unless and until the presumption is legally rebutted…see Sung Estate, supra at para 66; Ross-Scott v Groves Estate, 2014 BCSC 435, 2014 CarswellBC 684.
14In Banton v. Banton, 1998 14926 (ON SC), 1998 CarswellOnt 3423, 164 D.L.R. (4th) 176 (Ont Gen Div) at para. 109 the Court held that consent in the context of marriage is an act of will and must be distinguished from capacity to marry. Justice Greer in Sung Estate reaffirmed this principle at paras 55 and 56. In other words, a person may consent to marry, but if he or she lacks the capacity to enter into the contract of marriage, the marriage is void ab initio.
15The law is settled that the onus of proof rests with the party asserting that the person in question did not have the mental capacity to consent at the time of marriage. The applicants, therefore, have the onus of establishing that Mr. Hunt did not possess the requisite capacity to marry as at October 24, 2011.
Mental Capacity of Mr. Hunt - The Medical Evidence
16A significant amount of medical evidence dealing with the issue of capacity was presented at the trial, both in the form of expert medical testimony and medical reports and by way of oral testimony from lay witnesses.
1. Pre Release Medical Summary of Mr. Hunt’s Treatment Team at the Sudbury General Hospital
17Mr. Hunt was part of an intensive rehabilitation program established on his behalf at Sudbury General Hospital. His treatment team consisted of, broadly, a case manager, a speech language pathologist, an occupational therapist, a psychologist, and a rehabilitation support worker (the “Treatment Team”).
18On October 3, 2011, which was 18 days before his release home, Mr. Hunt’s Treatment Team noted the following cognitive impairments:
a) Mr. Hunt showed significant impairments in his executive functioning, including his ability to make decisions, solve problems, plan, organize and execute tasks;
b) His brain injury affected his ability to recognize his cognitive impairments and this impaired awareness made it difficult for him to experience fully what was happening around him as well as to infer consequences of events which might jeopardize his personal safety;
c) He should not be left alone and continued to need supervision for safety reasons as well as to remind him to take his medications;
d) Mr. Hunt’s license was revoked by the Ministry of Transportation as a result of his decreased processing speed and reaction time as well as his difficulties with attention and self-neglect; and
e) He had difficulty initiating conversation and needed cuing to provide additional information.
19In addition to his cognitive impairments and deficits, the Treatment Team noted that Mr. Hunt also continued to suffer physical limitations, including:
a) Some impaired movement pattern of the left arm and limited active range of motion of the left shoulder;
b) Spasticity in the right lower extremity, which impaired the movement, control, and speed of movement and the ability to do combined movements such as jumping. His Community Balance and Mobility scale was 43/96 (average for his age is 84/96) and his walk speed was slower than that required for crossing a street light intersection;
c) Some residual left neglect, particularly visible in distractible environments; and
d) His ability to walk was impaired when he performed more than one task at the same time, including holding a cup or looking to one side.
2. Capacity Assessments by Bill Sanowar.
20On August 5, 2011, Bill Sanowar, H.H.A., M.S.W., R.S.W. (“Mr. Sanowar”) assessed Mr. Hunt with respect to his capacity to manage property and found that he was incapable of managing property. A Certificate of Incapacity to manage property was issued pursuant to section 16(5) of the Substitute Decisions Act, 1992, S.O. 1992 c. 30 (“SDA”) on August 14, 2011, and the Office of the Public Guardian and Trustee (“OPGT”) became Mr. Hunt’s statutory guardian of property.
21On October 19, 2011, Mr. Sanowar assessed Mr. Hunt with respect to personal care and found that Mr. Hunt was incapable in areas of health care, nutrition, shelter and safety.
22At trial Mr. Sanowar testified that he was appointed a capacity assessor approximately 20 years ago. He has been approved and accredited to assess persons both with respect to their ability to manage property and their ability to manage their personal care. He has performed over 800 assessments during his career. Assessments can be challenged to a review board and although 7 or 8 of his assessment have been challenged, none of his assessments have ever been challenged successfully.
23Mr. Sanowar found Mr. Hunt incapable of managing his property, based on his assessment of Mr. Hunt on August 5, 2011, wherein he made the following observations:
a) Mr. Hunt’s presentation was that of someone who showed flat affect, meaning that there was a lack of any sort of excitement or change in his presentation and his voice was monotonic;
b) Mr. Hunt was unable to demonstrate an understanding or awareness that he suffered deficits from the accident, physical and otherwise;
c) Mr. Hunt was unable to accurately estimate the time of the day, despite cuing to a clock located in the room and to the fact that lunch was being prepared at the time and delivered in carts to patients; and
d) Mr. Hunt was not able to demonstrate familiarity with nor appreciation for his financial circumstances to allow management strategy and was also unable to retain information of a financial nature which was shared with him.
24On October 19, 2011, Mr. Sanowar assessed Mr. Hunt’s capacity to make personal care decisions and noted the following:
a) Mr. Hunt was unable to provide pertinent details about his medical condition, both physically and cognitively, and was unable to recognize his need for healthcare support;
b) He was unable to identify medications he was taking or what they were for, despite this information having been provided to him;
c) He was unable to communicate knowledge about food preparation, nutrition, as well as the benefits of eating and was unable to explain his shelter needs in light of his impairments;
d) He was competent with respect to hygiene and clothing; and
e) Mr. Hunt’s cognitive limitations negatively impacted his ability to comprehend the tasks necessary to ensure his safety, and he identified no difficulties with his plan of returning to operating his large machinery within a few days as he believed it would all come back to him.
25Mr. Sanowar explained to the court that in the Province of Ontario the Office of the Public Guardian and Trustee (“OPGT”) automatically assumes the role of trustee in circumstances where the individual who is assessed as lacking capacity does not have a valid Power of Attorney document. In the case of Mr. Hunt, he had not designated anyone to act as his attorney and as such the OPGT assumed this role. There is a mechanism in place however whereby interested parties can thereafter be appointed to assume this role.
26On the day prior to Mr. Hunt’s release home, his sons James and Justin applied to take over the role of the OPGT and to be appointed as his guardians for property and personal care. They were subsequently appointed to act in this capacity.
3. Dr. Carol Parrott (Clinical Psychologist)
27Dr. Parrott has been certified as a registered Clinical Psychologist in both New Zealand and in the Province of Ontario. She was assigned by Mr. Hunt’s auto insurer to provide assistance and guidance to Mr. Hunt during his rehabilitation.
28In her report dated October 28, 2011, she noted that in her opinion Mr. Hunt was discharged prematurely from the hospital to the care of the applicants, who did not have the proper supports in place to cope with Mr. Hunt’s impulsive behaviour and poor judgement.
29Dr. Parrott testified that during the interview, Mr. Hunt expressed no awareness of the degree of his cognitive impairments. Instead, he believed he was fine and that he could resume driving, operating heavy machinery and managing his business and that he did not need the assistance of a rehabilitation support worker. These were all restricted by the rehabilitation clinic.
30Dr. Parrott explained that, based on her clinical observations and review of the documentation from the Acquired Brain Injury program at Sudbury Regional Hospital, Mr. Hunt demonstrated the following cognitive impairments:
a) Retrograde and anterograde amnesia;
b) Impaired short-term memory, fragmented remote memory;
c) Difficulty expressing himself, including word finding difficulties and word substitution;
d) Attention and concentration difficulties, distractibility;
e) Expressive speech and receptive speech impairment;
f) Slowed processing speed;
g) Impulse control and judgement difficulties;
h) Impaired reasoning and problem solving;
i) Anosognosia, a neurologically based lack of awareness of deficits and impairments; and
j) Fatigue, somnolence.
31Dr. Parrott explained that Mr. Hunt’s lack of awareness and insight into his injuries was primarily a safety issue for him. To that end, she identified that the goal for Mr. Hunt individually was to improve his self-awareness and insight, and should include identifying maladaptive and unrealistic beliefs which are associated with poor self-awareness.
32As of the date of the wedding, which was three days before his interview with Dr. Parrott, Mr. Hunt was extremely vulnerable, especially to reinjuring the brain and putting himself in unsafe positions. She explained that she was particularly uncomfortable with the secretive way that the marriage occurred, since it is important that for a person with a brain injury, every decision needs to be made in a methodical, predictable and routine way because the person is relearning how to make decisions. This type of secretive or impulsive decision was not in Mr. Hunt’s best interests.
33In her report of June 29, 2012 Dr. Parrott confirmed that she was continuing to meet with Mr. Hunt on a weekly basis. She reported that Mr. Hunt had developed a major depressive disorder, which was unstable. He was started on an anti-depressant in April, 2012 and had demonstrated a degree of observable improvement. His explosive temper had improved and he was less withdrawn and apathetic. However, he was still extremely psychologically fragile and on a number of occasions he had demonstrated erratic mood behaviour, spiralling downward into a more severe depressive mood, at which time he had experienced and expressed suicidal ideation.
34Dr. Parrott was assisted in providing ongoing therapy by RA’s, whose continued involvement she felt was critical. She reported that due to Mr. Hunt’s severe memory defects he had challenges recalling and self-reporting on mood fluctuations and triggers and was unable to remember the content of the sessions, and the homework assigned. She noted that the RA’s prompting and involvement helped Mr. Hunt to recall and self-report during the session, and the homework assigned.
35In conclusion, she noted that recent studies indicated that intensive rehabilitation in cases involving traumatic brain injuries should continue for at least 2 ½ years post injury. These studies found a disturbing pattern of cognitive decline which can occur between 12-30 months if intensive stimulation is discontinued.
36In her report dated June 28, 2013 Dr. Parrott noted that Mr. Hunt was continuing to take his antidepressant medication consistently, and that this was critical to the stability of a major depressive disorder. Affective symptoms had continued to show improvement.
37She noted that although Mr. Hunt had completed the driver’s assessment with Skill Builders, she understood that he was unsuccessful in obtaining his driver’s licence. Mr. Hunt had indicated an interest in riding horses, a pastime he had engaged in prior to his injury, and she recommended that he be evaluated by a riding instructor prior to giving him approval to ride his own horses as a recreational activity.
38Significantly, Mr. Hunt’s sons agreed that Ms. Worrod could be involved in Mr. Hunt’s rehabilitation if she was willing and if satisfactory arrangements could be made. A meeting was set up by Dr. Parrott with Ms. Worrod. Ms. Worrod arrived 20 minutes late for the one-hour meeting. Dr. Parrott inquired of Ms. Worrod if she was willing to be involved in supervised visits so a clearer plan could be developed on how she could be involved, and then provided with some education. Dr. Parrott testified that there was no follow up to this suggestion by Ms. Worrod.
39In a further attempt to involve Ms. Worrod, Dr. Parrott decided to set up a meeting with Ms. Worrod and Dr. Feeney, a highly regarded Educational Psychologist from New York State with expertise in the rehabilitation of brain injured persons. She explained to the court that the situation between Mr. Hunt’s sons and Ms. Worrod was “complicated” and in the circumstances engaging an outside professional might be helpful. A meeting time was arranged, Dr. Feeney arrived from New York State but Ms. Worrod failed to attend the meeting.
40Dr. Parrott noted that Mr. Hunt’s sons attended the team meetings with their father and were very involved throughout his recovery.
4. Dr. Van Reekum
41Dr. Van Reekum is a Psychiatrist with a speciality in treating patients with acquired brain injuries.
42Dr. Van Reekum assessed Mr. Hunt on January 12, 2017 upon the request of the applicants’ counsel. His evidence at trial focussed primarily on Mr. Hunt’s acquired brain injury and how his catastrophic injury affected his daily life and functioning.
43Dr. Van Reekum explained that Mr. Hunt suffered injuries to the frontal lobe and the anterior temporal lobes of his brain which resulted in these parts of his brain being damaged/missing (encephalomacia).
44Dr. Van Reekum explained that Mr. Hunt was unconsciousness for approximately 18 days after his accident, which was caused by extensive axon sheering, where the nerve fibers from the brain stem (connected to the spinal cord) become torn. He also suffered micro-hemorrhaging scattered throughout the entire brain as well as generalized atrophy, meaning that much or most of Mr. Hunt’s brain had lost tissue and shrank.
45Dr. Van Reekum explained that Mr. Hunt developed a classic case of frontal lobe syndrome which resulted in the following:
a) Motor functioning (mobility) changes: Mr. Hunt had low balance scores, sensory loss, and showed left side neglect as he was not aware of the left side of his world;
b) Flattening of affect and apathy syndrome: Mr. Hunt demonstrated little emotional reactivity as well as apathy, demonstrated by a lack of initiation, a lack of motivation and an inability to sustain participation, therefore requiring a lot of cuing and even still, he cannot sustain that motivational goal directed behaviour;
c) Disinhibition, as his frontal lobes were no longer inhibiting his automatic responses, including anger and rage;
d) Cognitive difficulties, including his ability to abstract reason, problem solve, make decisions, consider alternatives, and develop a strategy; and,
e) Lack of insight and self-awareness: this problem was observed by virtually everybody who has ever worked with Mr. Hunt, who noted that he lacked the ability to be self-aware, particularly about his impairments and this is a huge barrier to his safety.
46Dr. Van Reekum explained that as a result of Mr. Hunt’s frontal lobe injury and executive functioning impairments, he will have more difficulties understanding the consequences of his behaviours and his actions. He is also much more likely to be driven by stimulus response because of his injury to his frontal lobes, which are responsible for reasoning, abstraction, self-awareness, problem-solving, considering consequences, and inhibiting our behaviour.
47As of May 16, 2012, after months of intensive rehabilitation, Mr. Hunt’s IQ fell under the 1st percentile. Dr. Van Reekum explained that while his IQ is nowhere close to the median or mean, his reduction in basic innate abilities is complicated by the fact that his executive functioning skills, which are used to apply his innate skills, are also reduced. This ability, Dr. Van Reekum explained, is what differentiates someone with a low IQ from someone with a low IQ and a frontal lobe injury. He also explained, in detail, the consequences of apathy syndrome and how Mr. Hunt was increasingly malleable and easily influenced using cuing and emotional stimulation, including sexual relations.
48Dr. Van Reekum testified that in his view Mr. Hunt remained profoundly cognitively impaired. The majority of recovery in patients such as Mr. Hunt takes place during the first 6 months. Recovery is measurable during the 12 months thereafter but this recovery is a result of rehabilitation efforts and affect the patient’s functioning. He stated that patients like Mr. Hunt might lack the motivational desire to eat, notwithstanding that they are hungry, but because they are very malleable to external cues, they will eat if coerced. They are also susceptible to undue influences, because their will can be dominated and they lack the insight to make decisions and consider the consequences of these decisions.
5. Dr. Timothy Feeney
49Although Ms. Worrod did not attend the meeting which had been arranged with Dr. Feeney, Dr. Feeney did undertake an assessment of Mr. Hunt and prepared a report which was filed with the court.
50Dr. Feeney noted that Mr. Hunt expressed strong feelings for Ms. Worrod, but admitted that their relationship was “confusing and complicated”. He also indicated that much of his desire to spend time with her was driven by his need for sexual relations with her.
51With respect to the day of his marriage, Mr. Hunt was unable to provide details about the specifics of the events of his wedding day. Mr. Hunt reported that, at Ms. Worrod’s request, they kept their intentions to marry and the specific plan to marry a secret because she did not want people to get in the way. Dr. Feeney expressed the opinion that Mr. Hunt continued to require acute rehabilitation on the date of his marriage and was significantly cognitively impaired and unable to make decisions that would affect his life.
6. Valerie Dingman
52Ms. Dingman, Mr. Hunt’s speech and language pathologist, met with Mr. Hunt on November 4, 9, 10, 17 and 23, 2011 to assess his speech and language abilities. In her reports of these assessments she stated the following:
a) In conversation Mr. Hunt appeared to forget the information that was being presented so his responses were not always appropriate;
b) Mr. Hunt had significant difficulties in retaining oral input;
c) Mr. Hunt had significant difficulties with word recall and retrieval;
d) Mr. Hunt demonstrated severe impairment in executive function with obvious adverse implications for real life situations, including with respect to accuracy of responses, reasoning and providing rationale;
e) Mr. Hunt exhibited significant difficulties in expression; he limited most utterances to a single sentence or thought and did not elaborate unless prompted to do so, indicative of initiation and expansion difficulties;
f) Mr. Hunt presented with a profile of moderate to severe cognitive communication deficits; and
g) Mr. Hunt was expected to experience limitations in judgment and reasoning that would affect all aspects of daily, social and work abilities.
7. Cheryl Ogston, Physiotherapist
53Ms. Cheryl Ogston, Mr. Hunt’s physiotherapist, met with Mr. Hunt on October 31, 2011. In her report, dated November 30, 2011, she noted the following:
a) Posture: Left shoulder – shortened trapezius with slight protraction. Left eye more open than right. Left facial droop;
b) Often uncoordinated with his right foot swing phase and placement onto the ground. Occasionally uses arm movements to assist with balance; and
c) Unable to balance on his right foot.
8. Dr. Michel Silberfeld
54Dr. Michel Silberfeld was retained by the applicants to provide expert opinion evidence on Mr. Hunt’s capacity to marry as of October 24, 2011. He was qualified as an expert in psychology. The applicants asked Dr. Silberfeld to assume certain facts with respect to specific inquiries in performing his assessment, which are briefly listed below:
a) Mr. Hunt had children and those children would normally be his expectant heirs;
b) arrangements were being contemplated or made at the time of the marriage to receive a significant personal injury settlement and structure it in annuities that would provide him significant income over the balance of his life and Mr. Hunt expected at that time to receive a personal injury settlement in an amount in excess of $1,000,000.00;
c) Mr. Hunt had a business with assets that could be sold if the business was to wind up;
d) Ms. Worrod had an intermittent job record and intermittent income earning history;
e) Ms. Worrod had no appreciable assets in her name, with the exception of a jointly registered house that she might already have given up claim to;
f) Mr. Hunt had been married and divorced before and had paid a marital property settlement to his departing spouse from the prior marriage;
g) At the time of the injury Mr. Hunt had announced the intention to live separate and apart from Ms. Worrod, had signed a separation agreement and had moved her possessions into a storage unit;
h) Mr. Hunt had called the police to eject Ms. Worrod from his home;
i) Mr. Hunt had told his best friend that the relationship was over and that he wanted nothing to do with Ms. Worrod;
j) Ms. Worrod had hit Mr. Hunt when drunk, drank regularly to excess, took his truck without permission and drove it while intoxicated;
k) Ms. Worrod drank while he was her surety and contrary to the terms of her recognizance at the time, and caused him to pay amounts out of his pocket as a penalty for that breach;
l) Ms. Worrod was an alcoholic, had been drinking over the time he knew her, and was periodically intoxicated to the point where she was unable to act and care responsibly for herself;
m) Ms. Worrod had driven Mr. Hunt’s vehicle when over the legal limit to do so;
n) Ms. Worrod had hit Mr. Hunt when drunk and left bruises on his face in doing so; and
o) Ms. Worrod drank when under a prohibition from doing so under court order.
55Dr. Silberfeld met Mr. Hunt in private for his assessment on March 24, 2017, and April 7, 2017. He performed a Montreal Cognitive Assessment test on Mr. Hunt, who scored a 22/30. Dr. Silberfeld explained that a score of less than 26 is indicative of cognitive impairment.
56Dr. Silberfeld was of the opinion that Mr. Hunt lacked the capacity to marry on October 24, 2011. Notably, he explained that as a result of his frontal lobe aphasia syndrome, Mr. Hunt lacked the forethought and care to think about the consequences of marriage and seemed indifferent as to what the consequences would be for him.
57Dr. Silberfeld testified that Mr. Hunt’s catastrophic brain injury amounted to a disorder of the mind, and influenced absolutely everything. Specifically, as a result of his injury and the apathy syndrome, he was less prudent, more passive and accepting, and it was almost impossible for him to be critical. Further, Mr. Hunt’s inability to assume some of the facts Dr. Silberfeld was asked to assume, as a result of his memory deficits he illustrated that he could not hold in mind decisive facts about Ms. Worrod.
58The applicants submit that substantially all of the factual assumptions listed above have been made out by the evidence on a balance of probabilities. Significantly, even if the court chose not to accept some or all of the aforementioned assumptions, Dr. Silberfeld explained that this would not erase Mr. Hunt’s incapacity nor his deficits. Rather, Dr. Silberfeld explained that he looked for Mr. Hunt’s responses in relationship to the assumptions and he did not make any statement as to whether or not they were true. In short, even if none of the assumptions are made out on the evidence, Dr. Silberfeld testified that he would still be of the opinion that Mr. Hunt lacked the capacity to marry on October 24, 2011.
Mental Capacity of Mr. Hunt - The Evidence from Lay Persons
1. Justin and Brad
59Justin and Brad both testified at the trial. Justin was born in 1986. He is 31 years old and he continues to live in the Novar property with his father.
60Brad is four years younger than Justin and is 27 years old. He has now married and has a child and lives in his own house.
61Justin and Brad gave evidence that following Mr. Hunt’s accident on June 18, 2011, the left side of his body was paralyzed and he had no function with his left hand or leg. Justin explained that their father had to learn everything from scratch and continues to experience issues with his short-term memory. In addition, he explained that Mr. Hunt had no recollection of six months prior to the accident. At times, even the day before he was discharged from the hospital (October 20, 2011), Mr. Hunt was unable to recognize Brad and Justin, even though they would be standing right in front of him.
62Justin and Brad testified that after his accident Mr. Hunt could participate very minimally in conversation, especially if it was a topic that he was not very familiar with.
63Brad and Justin explained that Mr. Hunt was unaware of his injuries and how his injuries had changed his capabilities. Specifically, when he left the hospital on October 21, 2011, Mr. Hunt thought he was totally fine and believed he was ready to take on his life on his own, when that was clearly not the case.
64Justin and Brad both testified that as a result of his accident, their father underwent a drastic change, from a man who had always been hardworking and independent, to a man who required 24-hour care and support and who could no longer care for his own needs and safety.
65Brad slept with Mr. Hunt in his bed for several months after he was released from the hospital because of his issue with balance and in order to ensure he was safe if he needed to get up in the middle of the night to use the washroom. They installed some modifications recommended by Mr. Hunt’s occupational therapist into the Novar property, including double railings for the stairs, grab bars in the bathroom and grip tape on the stairs.
2. Jeff Hofman
66Mr. Hofman has been Mr. Hunt’s friend for approximately 12 years. They met around the time that Mr. Hunt moved to Fraserberg Road in Bracebridge, where Mr. Hunt kept his horses on site and ran his business. Mr. Hofman lived 4 doors down from Mr. Hunt at the time. When Mr. Hunt later moved to Manitoba Street in Bracebridge, Mr. Hofman continued to maintain a close relationship as well as regular contact with Mr. Hunt, particularly since Mr. Hofman looked after Mr. Hunt’s horses on his own property because Mr. Hunt could not keep the horses on the Manitoba Street Property. After Mr. Hunt moved to the Novar Property, Mr. Hofman and Mr. Hunt spoke regularly on the phone and via text messages and also visited each other regularly.
67Mr. Hofman testified that after the accident, Mr. Hunt was a lot slower mentally and physically. As a result of his injuries, he had to hold his left hand up and he would drag his left foot when he tried to move.
68Mr. Hofman took Mr. Hunt on a trip to Cuba approximately three years ago, and testified that he had to ensure that Mr. Hunt did not wander away from him, forget to take his medications (the order and time of which was set out in a schedule provided by Justin), or forget to eat.
3. Kathleen Worrod
69Ms. Worrod testified that after Mr. Hunt came out of his coma she and Mr. Hunt spoke regularly as he would call her about 10 to 20 times a day and texted her consistently. She testified that Mr. Hunt knew they had lived together, worked together and that they were engaged. He told Ms. Worrod to say hi to Sophie and Ted Konwent and asked how her daughter Jessica’s son Sebastian was doing.
70Ms. Worrod testified that she made arrangements with the Reverend, organized the music, and flowers. She claimed that she did not book the hotel but rather that she believed Mr. Hunt did.
71Ms. Worrod testified that on the day of the marriage, October 24, 2011:
a) Ms. Worrod met with Mr. Hunt and Ted at the Bracebridge Courthouse and Mr. Hunt was able to provide all the information to the court in order to obtain the marriage license;
b) Mr. Hunt told her that he had forgotten to bring his medication;
c) She and Mr. Hunt met with Reverend Head and discussed how Mr. Hunt had suffered an accident and had just been released from the hospital and what kind of ceremony they wanted;
d) Mr. Hunt was joking around with Ms. Worrod’s daughters and was chasing Sebastian and he made a thank you speech to everyone after the ceremony;
e) He was not favouring his left arm, did not have a left side facial droop, was not speaking slower than usual, was not unbalanced, and she did not notice any changes to his personality;
f) He was determined to do a lot and had planned what they were going to do the next day; and
g) Mr. Hunt did not seem confused at the wedding.
4. Jessica Wicks
72Jessica is Ms. Worrod’s daughter. She was Ms. Worrod’s surety in relation to the outstanding drinking and driving charges against Ms. Worrod at the time Mr. Hunt was injured.
73Jessica testified that after the accident she would speak to Mr. Hunt on the phone and he told her that he could not wait to marry Ms. Worrod.
74Jessica testified that on the day of the wedding:
a) Mr. Hunt’s demeanour and personality had not changed and he was joking around, really happy to see everyone and was in good spirits;
b) Mr. Hunt stated that he was happy to be marrying Ms. Worrod and that no one could keep them apart;
c) She did not notice Mr. Hunt limping, favouring his left arm, having trouble finding words or with his memory or following conversations; and
d) Mr. Hunt did not require cuing when he spoke and was not unstable on his feet.
5. Reverend Craig Head
75Revered Craig Head officiated the marriage between Mr. Hunt and Ms. Worrod on October 24, 2011. He testified that he was aware of an obligation to ensure that marriages were not performed on individuals who were of unsound mind. Reverend Head testified that he met with the couple twice on the day of the marriage, once for 20 minutes at an Esso parking lot and later on in the evening prior to their ceremony. He did not speak with Mr. Hunt separately. He did not recall speaking with the couple regarding Mr. Hunt’s accident and his recent release from hospital and did not observe anything that would have made him cautious or skeptical with respect to Mr. Hunt’s demeanour. Reverend Head testified that he did not have an independent recollection of the wedding day.
6. Tadeusz (“Ted”) Konwent
76Mr. Konwent is Ms. Worrod’s uncle. He testified that Mr. Hunt asked him to be his best man at his wedding. He made arrangements with Mr. Hunt to pick him up the morning of October 24, 2011. Mr. Hunt purportedly called Mr. Konwent twice that morning to ask where he was and to let him know that he had left the home already and was walking down the street in the rain, because he did not want Justin to see him missing.
77Mr. Konwent drove Mr. Hunt to the Bracebridge Courthouse in order for Mr. Hunt to pick up a copy of the Certificate of Divorce with respect to his previous marriage. He then drove Mr. Hunt and Ms. Worrod to purchase their wedding rings in Barrie, which were purchased by Mr. Hunt in cash. Mr. Konwent testified that Mr. Hunt appeared happy, was smiling and joking around, and clearly wanted to get married.
7. Sophie Malinowski
78Ms. Malinowski is Ms. Worrod’s aunt. Sophie testified that she saw Mr. Hunt on the day of the wedding for about half an hour. He appeared excited to get married and did not have any difficulties walking.
8. Mr. Hunt
79Mr. Hunt was called by the Respondent to provide testimony at trial.
80In order to assist him in feeling comfortable, his evidence was taken in a conference room. He was permitted to take his little dog Tico with him into the room and the dog sat on his lap while he answered questions.
81Broadly, Mr. Hunt testified that:
a) He and Ms. Worrod were married at a ski hill and he did not know why he wanted to get married to her;
b) He was confused as to whether he was still married to Ms. Worrod and said his boys thought the marriage was not valid because they got married at a ski hill and not a church;
c) Ms. Worrod has two girls but he could not remember their names.
d) He volunteered that he and Ms. Worrod had separated for about a day prior to the marriage, and then when questioned whether Ms. Worrod told him to say that, he responded, “yes”;
e) His boys do not like Ms. Worrod because “she drank all the time”. He said that she told him before that she quit but she did not.
f) Before the accident Ms. Worrod did work with him; she raked, shovelled and lay rock. He also said she did not work with him very often.
g) She took the truck once when she was drinking and got arrested…not having the truck made it difficult to work.
h) He believes he called the police on Ms. Worrod once before the accident.
i) He said all of his family was busy and he did not tell them about the wedding. He was not involved in planning the wedding and did not remember how he proposed;
j) He could not recall who picked him up on the day of his wedding, only that the “guy who picked me up went fishing with me”. He did not have a best man at his wedding
k) He said that he did not have any medication at the time of the marriage because he had not gone to the doctor yet.
Did Mr. Hunt have the Mental Capacity to Marry on October 24, 2011? - Analysis
82The issue before the court is not whether Mr. Hunt wished to marry Ms. Worrod on October 24, 2011. As stated by Dr. Silverberg, if the test for capacity was whether someone wished to marry, almost every teenager would get married.
83The test for capacity, as set out in Ross Scott v. Potvin, supra requires that persons entering into a marriage contract understand the duties and responsibilities which a marriage creates and have the ability to manage themselves and their affairs.
84The evidence is clear that before his accident Mr. Hunt understood and appreciated the consequences and responsibilities of marrying Ms. Hunt and that he had made his decision not to do so. As early as December 16, 2010 he and Ms. Worrod prepared and signed a document entitled “Property Settlement Agreement” (the “agreement”). The agreement provided that Mr. Hunt would purchase Ms. Worrod’s interest in the matrimonial home (valued at $52,000). He provided her with a cheque for $27,000 which she cashed and the balance of $25,000 was applied to the monies he had paid for the legal expenses she had incurred in relation to her drinking and driving offences.
85Notwithstanding Mr. Hunt’s purchase of Ms. Worrod’s interest in the house and his apparent decision that he would not marry Ms. Worrod, she continued to reside at the Novar premises because Mr. Hunt was her surety, and she accompanied him to his jobsites for a number of weeks after the start of his season in May, 2011. As he explained to his friend Mr. Hofman, he had to “keep an eye on her”.
86In deciding that Mr. Hunt had made up his mind not to marry Ms. Worrod at the time of the accident I attach much weight to the evidence of Officer Rosemary Coffey. She testified that she was called to the Novar premises on the evening of June 4, 2011. When she arrived, she found Mr. Hunt outside of the premises waiting for the police at the end of the driveway. He informed her that he was Ms. Worrod’s surety; she stated that he did not refer to her as a girlfriend but only that they had once been boyfriend and girlfriend. He then informed the officer that he could not “control her booze consumption”. He had arrived home from work about half an hour earlier, had discovered alcohol and poured it down the sink, which resulted in Ms. Worrod becoming very angry.
87Ms. Coffey, accompanied by two other officers, knocked on the door. It took a while, but when the door was finally answered Ms. Worrod was standing there, wearing only a T-shirt, and nothing else. Officer Coffey stated that Ms. Worrod was slurring her words, her eyes were red rimmed, and she could only stand holding on to the walls. According to officer Coffey, Ms. Worrod was obviously intoxicated. The officers found an empty bottle of wine under the sink, as well as a partially consumed mickey of alcohol. When Officer Coffey entered the master bedroom, the T.V. was on but she could not find any female clothes. The covers were pulled back on the bed in a second bedroom, in which she found female clothes, including Ms. Worrod’s jeans. This suggests strongly that Mr. Hunt and Mr. Worrod were sleeping in separate rooms at the time, a mere three weeks before the accident.
88Ms. Worrod was arrested that evening for breach of her recognizance which required her to abstain from the consumption of alcohol. Officer Coffey noted that she was so impaired it took her four minutes to put on her shoes. She was later released into the custody of her daughters in Barrie who replaced Mr. Hunt as a surety.
89The fact that Mr. Hunt had abandoned any intention to marry Ms. Worrod is further strengthened by the evidence of Bradley Hunt. He accompanied his father on the ATV ride on the Saturday his father was injured. He testified that when he arrived at the Novar home on the Friday evening he did not notice that anything belonging to Ms. Worrod was in the house. He also agreed to resume working for his father the following Monday after his father assured him that “he would not be going back to her”.
90In my view, the evidence overwhelmingly supports a finding that Mr. Hunt had not only made up his mind not to marry Ms. Worrod prior to the accident but also that he did not have the requisite mental capacity to marry Ms. Worrod following his accident.
91The consensus of opinion from the medical experts and witnesses, evidence which I note was uncontradicted by other medical experts, is that Mr. Hunt lacked the ability to understand the responsibilities or consequences arising from a marriage, and that he lacked the ability to manage his own property and personal affairs as a result of the injuries he sustained on June 18, 2011.
92As noted, the pre-release medical summary prepared by the Sudbury Hospital medical team stated that Mr Hunt’s brain injury affected his ability to recognize his cognitive impairments and this impaired awareness made it difficult for him to experience fully what is happening around him as well as to infer consequences of events which may jeopardize his personal safety.
93Mr. Sanowar issued a certificate of incapacity to manage property and personal care following which the Office of the Public Guardian and Trustee became his statutory guardians, a responsibility which was later transferred to the applicants.
94Dr. Carol Parrott found that Mr. Hunt suffered from numerous impairments, including impulse control and judgement difficulties, as well as impaired reasoning and problem-solving abilities.
95Dr. Van Reekum opined that Mr. Hunt’s frontal lobe injury and executive functioning impairments have the effect of making it difficult for him to understand the consequences of his behaviours.
96Dr. Timothy Feeney writes that Mr. Hunt continued to require acute rehabilitation on the date of his marriage and was significantly cognitively impaired and unable to make decisions that would affect his life.
97Valerie Dingman opined that she expected Mr. Hunt to experience limitations in judgment and reasoning that affect all aspects of daily, social and work abilities.
98Dr. Silberfeld testified that Mr. Hunt’s injury made it almost impossible for him to be critical and that in his opinion Mr. Hunt lacked the capacity to marry on October 24, 2011.
99The evidence of the lay witnesses called by the applicants supports the opinions of the medical experts. Mr. Hofman testified that when he took Mr. Hunt to Cuba to “give the boys a break” he had to make sure that Mr. Hunt did not wander away or forget to eat. He also testified as to his physical impairments, including his observation that Mr. Hunt had to hold his left hand up and he would drag his foot when he tried to move.
100The picture of Mr. Hunt’s behaviour painted by Ms. Worrod and the relatives she called to testify on her behalf was one of almost complete normalcy. According to Ms. Worrod, Mr. Hunt was joking around and chasing after his daughter’s son Sebastian. They did not notice that he exhibited any physical impairments. He gave a speech at the end of the wedding, thanking everybody.
101On October 31, 2011, a week after the weeding, Mr. Hunt was seen by Cheryl Ogston, a physiotherapist. Ms. Ogston notes that Mr. Hunt’s left shoulder was protracted, his one eye was further open than the other, he exhibited a left facial droop, he was often uncoordinated with his right foot swing phase and placement onto the ground and occasionally used his arm movements to assist with balance and that he was unable to balance on his right foot.
102I reject in its entirety this evidence of Ms. Worrod and her relatives with respect to Mr. Hunt’s actions and behaviours on his wedding day. It is inconsistent with all of the medical evidence and the observations of the disinterested witnesses such as Mr. Hofman.
103I put no weight whatsoever on the fact that Reverend Head does not recollect that Mr. Hunt exhibited any mental or physical impairments. The evidence is that the wedding arrangements were carried out by Ms. Worrod. He met Mr. Hunt and Ms. Worrod for about 20 minutes at a service station before the wedding. He did not recall having a one on one conversation with Mr. Hunt. The evidence points to the fact that he demonstrated a disturbing lack of due diligence in ascertaining Mr. Hunt’s capacity and agreeing to perform this wedding.
Capacity to Marry - Conclusion
104For the above reasons, I find that Mr. Hunt did not have the requisite capacity to marry Ms. Worrod on October 24, 2011. He did not meet the test set out in Ross Scott v. Potvin, namely that he understood the nature of the contract he was entering into and the responsibilities the contract created. At the time, and up to the present, he remains incapable of managing his own affairs. In the circumstances, I am declaring that the marriage is void ab initio.
SECOND ISSUE: What entitlement, if any, does Ms. Worrod have to the home in Novar, Ontario?
Background Facts
105Mr. Hunt and Ms. Worrod met through an online website in mid-2009. At the time, Mr. Hunt was living in a home he owned on Manitoba Street in Bracebridge, Ontario. His son Brad had moved from the Province of Manitoba to Ontario in 2006 and lived with him.
106Brad worked in his father’s business, Camel Lake Bobcat and Landscaping (“Camel Lake”) during the business seasons (approximately May through October). Justin moved in with them in June, 2010 and also worked for his father. Both sons operated the landscaping equipment and Brad also did the bookkeeping using the QuickBooks program.
107At the time Mr. Hunt met Ms. Worrod she was required to live with her daughter, Ashley Wicks, in Barrie, Ontario. Ashely was her surety in relation to a recognizance arising from drinking and driving charges against Ms. Worrod in the City of Welland, Ontario that summer.
108Mr. Hunt and Ms. Worrod dated for about a year and in April, 2010 they signed an agreement of purchase and sale to purchase a home in the nearby village of Novar. The purchase price was $275, 000. Ms. Worrod contributed $51,546.15 towards the purchase price, which were monies she received from the sale of her home. They secured a mortgage for $169,000 and Mr. Hunt paid the balance of the purchase price ($54,453.85) plus land transfer, legal and closing fees.
109The sale closed on June 15, 2010. On the date of closing Ms. Worrod was in custody awaiting a bail hearing, in relation to additional drinking and driving charges arising in the Town of Gravenhurst, Ontario on June 6, 2010. On July 5, 2010 she was released on a recognizance with Mr. Hunt signing as surety. The next day, on July 6, 2010, Ms. Worrod’s previous recognizance arising from her Welland, Ontario charges was cancelled and she entered into a new recognizance with respect to those charges with Mr. Hunt again signing as surety.
110Ms. Worrod retained Leo Adler, LLB to act on her behalf in relation to the bail hearings and the charges against her. Mr. Hunt paid Mr. Adler’s retainer in relation to the bail hearing in the sum of $5000 and in September, 2010 he paid the retainer for defending Ms. Worrod’s criminal charges in the sum of $15,000.
111After Mr. Hunt and Ms. Worrod moved to Novar, Justin and Brad lived on their own in the Town of Bracebridge, Ontario. On October 13, 2010 they were cutting wood on the Novar property. They testified that their father had given them permission to cut the wood, which they intended to sell for commercial purposes. The police arrived while they were busy cutting.
112Officer Wood testified that he was called to scene on October 13, 2010 and spoke to both Ms. Worrod and Mr. Hunt. Ms. Worrod was upset because she did not want Justin and Brad cutting wood on the property.
113Mr. Hunt informed Officer Wood that he and Ms. Worrod had bought the property together and that he was Ms. Worrod’s surety, but he no longer wanted to be her surety. Officer Wood suggested to Mr. Hunt that he attend at the Bracebridge Court and rectify the issue.
114Initially, Officer Wood observed Ms. Worrod sleeping on the couch, or “pretending to be asleep”. She informed him that she had called her lawyer about finding another surety and he stated that both Mr. Hunt and Ms. Worrod agreed that this would be a good thing.
115Officer Wood testified that Ms. Worrod appeared to have been drinking. Her eyes were red and her speech was slurred.
116In December, 2010 Mr. Hunt and Ms. Worrod prepared a type written agreement dated December 13, 2010 entitled “Property Settlement Agreement”. The wording of the agreement was obtained from on-line precedents. They both signed this agreement. The original of the agreement, which was entered as an exhibit at trial, indicates that it was witnessed by Jessica Wicks and Justin Hunt on December 16, 2010.
117The relevant portions of the agreement are summarized as follows:
a) The parties commenced co-habitation as joint tenants at the Novar property on July 5, 2010.
b) Differences had arisen between the parties and “the parties voluntarily and by mutual consent, with the purpose and intent of ending their co-habitation, desire ….to determine, settle and formalize their duties and obligations to each other and any issues regarding their respective rights in the…property…, and all other rights, claims, or obligations between them.”
c) Both parties acknowledged that they had the opportunity to seek independent legal advice, that they understood their rights and obligations under the agreement and the consequences thereof, that they were not under duress or undue influence or coercion, that they had read the agreement in its entirety and acknowledged that the terms were reasonable and fair.
d) Ms. Worrod agreed to vacate the premises upon acceptance of monies received by her from Mr. Hunt representing a lump sum in the amount totalling no less than $27,000.
e) Ms. Worrod accepted the total amount to be the remainder of monies as her portion of the down payment of the property.
f) The parties agreed that Ms. Worrod had received, in addition to, and prior to the agreement, from Mr. Hunt an amount of monies totalling $25,000 in respect to her down payment made towards the purchase of the Novar property.
g) By January 15, 2011 Mr. Hunt was to “obtain and secure an independent loan or financial arrangement with TD Canada Trust…or other financial institution in direct regard to” the Novar property; meaning he would take “sole ownership, title and responsibility for the home.
h) In the event Mr. Hunt was unable to secure financing by January 15, 2011, the property would be listed for sale and upon the sale the proceeds, debits, responsibilities surrounding the home would be shared equally.
118In her cross examination, Ms. Worrod agreed that the monies she received pursuant to the terms of the agreement represented repayment to her for her portion of the down payment on the Novar property, which was approximately $52,000.00, less the sum of $25, 000.00 which Mr. Hunt had spent on her legal bills that year.
119On December 16, 2010 Ms. Worrod accepted payment from Mr. Hunt of the sum of $27,000 which she deposited into her chequing account.
120Ms. Worrod’s belongings and furniture were moved out of the Novar home on December 17, 2010, and placed in storage in the City of Barrie, Ontario.
121Notwithstanding the terms of the agreement which required Ms. Worrod to vacate the premises upon receipt of the $27,000, she continued living in the property until June 4, 2011, which was the day she was arrested for breach of her bail conditions, for the reasons described above. She was later released on terms whereby her daughters, Jessica and Ashley Wicks became her sureties. The terms of the recognizance required her to live with them in Barrie, Ontario and there is no evidence that she resided with Mr. Hunt at the Novar home after that date.
122Following Mr. Hunt’s accident Justin and Brad made arrangements to pay off the balance owing on the mortgage, and the house is now free and clear of encumbrances, save and except for a legal aid lien placed on the property by Ms. Worrod.
Position of Ms. Worrod with respect to her interest in the property.
123Aside from her interest in the home as a spouse, Ms. Worrod claims a continuing interest in the home for the following reasons:
a) The contract is a domestic contract, as defined in the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). It was not properly witnessed and as such is not enforceable (s. 55(1) of FLA).
b) Following the signing of the contract, the parties reconciled, thereby rendering the agreement void.
c) Mr. Hunt did not arrange re-financing of the house by January 15, 2011, and did not list the property for sale thereafter as required by the agreement. This rendered the agreement void.
Ms. Worrod’s interest in the property - Analysis
1. Was the agreement properly witnessed, and if not, is it unenforceable?
124Ms. Worrod testified that she and Mr. Hunt forged the names of their children, Jessica Wicks and Justin Hunt, as witnesses to the agreement.
125Justin Hunt testified that he attended at the Novar house on December 16, 2010, at the request of his father, and at that time he signed his name as a witness to the agreement. Both Jessica Wicks and Ms. Worrod were present at the time.
126Copies of several documents signed by Justin were introduced into evidence and these revealed that there was no consistency in the way he signed his name. Some of the signatures differ considerably from the way he signed his name on the agreement. Significantly, his signature on his health card bears a remarkable resemblance to his signature on the Property Settlement Agreement. Justin testified that it was not very often that he had to provide his signature on formal documents and he had not yet developed a consistent signature.
127Justin presented his evidence at trial in a calm, thoughtful and consistent manner. I find him to be a credible witness and I accept his evidence that he signed the agreement.
128Jessica Wicks denies that she signed the agreement. I do not find Jessica to be a credible witness. Her testimony, that Mr. Hunt displayed no signs of physical or mental impairment on the day he married her mother is simply unbelievable, and contradicts all of the evidence of the medical professionals. Her testimony that she and her mother attended at that Novar property on the evening of June 19 (two evenings after the ATV accident) for the sole purpose of picking up the dog is also contradicted by the fact that it required police involvement to remove her and her mother from the property. No samples of signatures were presented to the court to confirm whether the signature on the agreement was Jessica’s signature.
129I find as a fact that the agreement was duly witnessed by Jessica and Justin.
130In the event I am mistaken and the agreement was not properly witnessed, I find that this does not render the agreement unenforceable. In coming to this conclusion, I rely on the dicta of the Ontario Court of Appeal decision in Gallacher v. Freisen, 2014 ONCA 399, at paragraph 27, where the court held as follows:
- Justice Pepall's decision in Virc v. Blair is consistent with a substantial body of case law in Ontario, and in other provinces with similar legislation, holding that the strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract: see Geropoulos v. Geropoulos (1982), 1982 2020 (ON CA), 35 O.R. (2d) 763 (Ont. C.A.); Campbell v. Campbell; Hyldtoft v. Hyldtoft (1991), 1991 12868 (ON SC), 33 R.F.L. (3d) 99 (Ont. Gen. Div.); Harris v. Harris (1996), 7 O.T.C. 265 (Ont. Gen. Div.); Pastoor v. Pastoor(2007), 2007 28331 (ON SC), 48 R.F.L. (6th) 94 (Ont. S.C.J.); Robinson v. Robinson Estate, 2006 BCSC 663 (B.C. S.C.); Waters v. Conrod, 2007 BCCA 230 (B.C. C.A.); Judson v. Judson (1995), 1995 17988 (PE SCTD), 129 Nfld. & P.E.I.R. 302 (P.E.I. T.D.); Ngeruka v. Bruce (2009), 2010 YKSC 51 (Y.T. S.C.).
131Here,
Both parties signed the agreement;
Both parties were involved in drafting the agreement;
Ms. Worrod accepted the $27,000 which was payable pursuant to the agreement, and has admitted that the balance of $25,000 represented monies paid on her behalf by Mr. Hunt to her lawyers;
There is no evidence of duress, lack of capacity, vulnerability or any other circumstances that would vitiate the domestic contract;
Both parties were reasonably sophisticated and educated at the time the agreement was signed.
132I note as well the following comments of the court at paragraph 21 of the Gallacher v. Freisen:
- Part IV of the FLA is intended to permit couples to formalize their financial and familial relationships in order to resolve differences and avoid disputes. This court has previously observed that, far from exhibiting a bias against domestic contracts, the legislation encourages parties to a marriage or a similar relationship to make their own arrangements as to the treatment of property: Bosch v. Bosch(1991), 1991 7177 (ON CA), 6 O.R. (3d) 168 (Ont. C.A.), at p. 174.
133Ms. Worrod and Mr. Hunt made a decision in December, 2010 that they would end their co-habitation and formalized the terms of the agreement they both signed. The applicants and respondent agree that there has now been partial completion of this agreement. This decision, and the terms associated with it should not be ruled unenforceable simply because they neglected to comply with a formality.
2. Did the Parties reconcile after signing the Agreement, and if so, does this render the Agreement unenforceable?
134I am not convinced that the parties reconciled after the separation agreement was signed.
135Mr. Hunt was Ms. Worrod’s surety in relation to the criminal charges against her at the time the agreement was signed and this required the two of them to live together until arrangements could be made to have someone else assume the position of surety.
136When Mr. Hunt’s friend Jeffrey Hofman encountered Mr. Hunt and Ms. Worrod at the service station in the Spring of 2011 Mr. Hunt reported that Ms. Worrod was with him so he could “keep an eye on her”. Mr Hofman also reported that in April, 2011 he received a message from Mr. Hunt to the effect that “I am done with this…I moved her out.” These are not the kind of comments a person would make if there had been a reconciliation.
137Brad testified as well that his father used the same expression “I am done with her” and that he had “moved her stuff out” when he returned from Fort McMurray to Ontario in March of 2011. It was not until Brad was convinced that his father was in fact “done with” Ms. Worrod that he agreed to come back and work for his father’s company.
138I note as well that Ms. Worrod’s furniture and belongings, which had been placed in storage in Barrie after the agreement was signed, were not moved back to the Novar residence.
139In arguing that they had reconciled, Ms. Worrod relies on a line item on a credit card statement from a jeweller in Barrie that she says demonstrates that Mr. Hunt bought her an engagement ring on January 7, 2011. However, she did not provide a receipt for this item. There is no independent evidence supporting the fact that what was in fact purchased on this date was an engagement ring and in the circumstances, I am inclined to disregard this evidence.
140Officer Coffey testified that when she attended at the property on June 4, 2011 she could not find any evidence that Ms. Worrod was sleeping in the master bedroom. Her clothes were located in a second bedroom.
141In any event, although the resumption of cohabitation may terminate a separation agreement, it does not necessarily affect conveyances made pursuant to the agreement prior to reconciliation… see Bebenek v. Bebenek (1979), 1979 1861 (ON CA), 24 OR (2d) 385 at par. 12.
142In the circumstances here, any reconciliation by Mr. Hunt and Ms. Worrod cannot nullify the underlying transaction already completed. Mr. Hunt had compensated Ms. Worrod for her portion of the down payment by providing her with the sum of $27,000.00, and in addition thereto had paid $25,000.00 toward her legal fees. Although Ms. Worrod submits that the $27,000.00 was converted into a slush fund which benefited both of them there is no independent documentary evidence to support this assertion. She has not provided any receipts or other documentary evidence in this regard. In fact, the records she has provided appear to demonstrate that at least $20,000 of this was transferred to another personal high interest savings account in her name alone.
143In conclusion, I am not convinced on the evidence that the parties reconciled at some time between the date they signed the property settlement agreement and the date of the accident. In any event, if they did reconcile, the completed transaction could not be nullified by a reconciliation.
3. Was the agreement rendered void because Mr. Hunt did not arrange re-financing of the house by January 15, 2011, and did not list the property for sale thereafter?
144Ms. Worrod submits that Mr. Hunt’s failure to obtain financing prior to his accident is fatal and allows her to rescind the agreement. I disagree. The Supreme Court of Canada in Sail Labrador Ltd. v. The Challenge One, [1999] 1 SCR 265, 1999 708 (SCC) at para 31 [Sail Labrador] held that failure of performance of an obligation under a contract must substantially deprive the other party of what was bargained for in order for the other party to rescind the contract. In other words, there must be substantial non-compliance of the contract or the breach must go to the ‘root’ of the contract. If this standard is not met, then rescission is not available to the other party.
145In my view, Mr. Hunt substantially complied with his obligations under the Property Settlement Agreement. Specifically, he provided Ms. Worrod with a bank draft for $27,000.00, which represented the total she paid for the down payment less the $25,000.00 he paid for her legal bills. Ms. Worrod accepted this payment and deposited the money into her personal bank account for her own use. In accordance with the agreement, Ms. Worrod moved her possessions out of the property after the agreement was signed. Thereafter, Mr. Hunt continued to take responsibility for the Novar Property. He continued to pay all the expenses and bills related to the Novar property, as he had done before and Brad and Justin continued making these payments after their father’s accident and have now paid the house off in full.
146In conclusion, although the property is still registered in the joint names of Mr. Hunt and Ms. Worrod, it is my view that Mr. Hunt holds sole equitable title to it.
THIRD ISSUE: Should the court make an order permanently prohibiting any and all contact and communication between Ms. Worrod and Mr. Hunt?
147Dr. Parrott was impressed with the devotion demonstrated by Brad and Justin toward their father, and their ongoing commitment to meeting his needs. She testified that Brad and Justin, as young men, had made sacrifices in their own lives to become the caretaker of their father. They communicated on a daily basis with the Treatment Team, attended every team meeting, sought out education on how best to communicate with their father and interpret his behaviour, and were motivated to try and keep their father’s life as normal as possible, including maintaining his home, business, and family connections, despite Mr. Hunt’s severe injuries. She explained that, in her experience, they showed genuine compassion and concern and were very involved in Mr. Hunt’s rehabilitation relative to other family situations.
148Their actions and behaviours stand in sharp contrast to those of Ms. Worrod. After being informed about the accident she did not rush up to the hospital to visit Mr. Hunt or obtain information about his injuries, but instead she drove to the house in Novar with her daughter on the day following the accident when she knew Brad and Justin would not be present. When Brad and Justin arrived at the house that evening after spending the day in Sudbury with their father she refused to allow them entry and declared that the house belonged to her. It took police involvement to remove her.
149Dr. Timothy Feeney was not called as a witness by the applicants, but his report was included in evidence under section 52 of the OEA. Dr. Feeney is a psychologist with a focus in the field of brain injury rehabilitation. His evidence speaks primarily to the negative effect Ms. Worrod’s contact had on Mr. Hunt’s rehabilitation.
150In his report dated April 25, 2012, Dr. Feeney stated that in his opinion, Ms. Worrod’s chosen actions, including continuing contact with Mr. Hunt despite an existing non-contact order, driving under the influence, encouraging a secret marriage to Mr. Hunt, failing to meet with Dr. Feeney and Dr. Parrot, would lead any reasonable person to question her judgment and her intentions. Dr. Feeney stated that Ms. Worrod’s unreliable and inconsistent actions had a great potential to negatively affect Mr. Hunt’s short and long-term memory and his long-term success in regaining a positive and meaningful life, and allowing communication between Ms. Worrod and Mr. Hunt would have a negative impact on Mr. Hunt’s relationship with his sons, who Dr. Feeney explained had proven to positively affect Mr. Hunt’s recovery and were critical to Mr. Hunt’s life. Therefore, Dr. Feeney recommended that the order preventing contact between Ms. Worrod and Mr. Hunt remain in effect at that time.
151Dr. Parrott and Dr. Feeney are impartial, independent health practitioners whose evidence must be given considerable weight and credibly and reliably illustrates that Ms. Worrod’s actions subsequent to the accident demonstrate that she is not capable of acting in Mr. Hunt’s best interests and providing for his safety.
152In my view, any communication, direct or indirect, would be detrimental to Mr. Hunt’s health and recovery for a number of reasons.
153Firstly, Ms. Worrod does not take responsibility for her actions, but rather blames her situation on everyone else. For example, she claimed that it was Mr Hunt’s fault that she was drinking on June 4, 2011, which was the day Officer Coffey attended at the house and arrested her. She said Mr. Hunt was an alcoholic too and he had come home with a bottle of wine and a mickey of coconut rum earlier that day and she had reluctantly agreed to join him in spending the day drinking. This testimony is in stark contrast to all of the other evidence concerning Mr. Hunt’s drinking habits, which was that he drank an occasional beer and never to excess. Furthermore, Officer Coffey did not observe that Mr. Hunt had had been drinking when she met him that evening at the end of the driveway. Mr. Hunt’s evidence was that he had come home from work and discovered that she was intoxicated. This is consistent with all of the other evidence that during the summer season he worked from sunup to sundown every day of the week.
154Similarly, Ms. Worrod testified that she had not had a single drink of alcohol since the June 4, 2011 incident to the date of trial. Before that her last drink was some time prior to the purchase of the Novar property in June, 2010. However, when she was confronted with credit card statements which indicated numerous purchases of alcohol through an alcohol delivery service between these dates she responded by saying that her daughter, or Mr. Hunt must have used her card to order in the alcohol. These orders were placed during the time she did not have a valid driver’s licence. Her daughter testified that she only drank on occasion and was not even familiar with the delivery service. It is doubtful in my mind that if Mr. Hunt had ordered in alcohol, he would have used Ms. Worrod’s credit card, or drank in her presence which would have put her in breach of her undertaking.
155Officer Wood testified that when he attended at the house on October 13, 2010 he noticed Ms. Worrod sleeping or pretending to sleep on the couch. When he spoke to her he formed the opinion that she had been drinking. Ms. Worrod explained that she was “meditating” on the couch and was not drinking. Police are trained to recognize the symptoms of impairment and I accept Officer Wood’s evidence over that of Ms. Worrod.
156Secondly, Ms. Worrod does not have the proper training to care for Mr. Hunt, and has blatantly disregarded prior non-communication court orders as well as the medical opinions of health practitioners involved in Mr. Hunt’s care. She arranged to have Mr. Hunt spirited away to his wedding and arranged a hotel room for the night, apparently without giving any thought to the fact that he required medication. In my view, she does not appreciate how challenging and demanding it can be to monitor a brain injured person for 24 hours a day, seven days a week and lacks the capacity and training to assist him in a supportive and helpful way.
157Thirdly, her continual telephone calls to Mr. Hunt undermines the efforts of Brad and Justin, and undermines Mr. Hunt’s views of their intentions. Justin recorded a telephone call between Ms. Worrod and Mr. Hunt in 2015. Throughout the phone call, Ms. Worrod repeatedly attempted to convince Mr. Hunt that his sons were simply motivated by self-interest, and were trying to take away his business and his house. She told him that if they were her kids she would have “hog tied them and kicked their ass all the way down the fucking street by now.”
158Justin and Brad are faced, and continue to face many challenges in taking care of their father. They should not have to have their efforts continually undermined by Ms. Worrod. In my view, a permanent non-communication order is necessary.
Decision
159For the above reasons, I find in favour of the applicants and accordingly I am issuing the following orders:
a) an Order declaring that the marriage between Mr. Hunt and Ms. Worrod is void ab initio;
b) an Order permanently prohibiting all contact between Mr. Hunt and Ms. Worrod, both direct and indirect, and including but not limited to telephone conversations, social media communications and communications through third parties.
c) an Order enforcing the terms of the Property Settlement Agreement dated December 13, 2010;
d) an Order vesting title to the Novar Property in the applicants names, in their capacity as Guardians of the Property and of the Person of Mr. Kim Hunt. More specifically, the property which is the subject of this order is the property municipally known as 896 Whitney Road, Novar, POA 1R0 described as Parcel 11215, Section SS, Part Lot 5, Concession 5, Township of Perry. (PIN # 52166-0071)
e) Since Ms. Worrod did not have a valid or equitable interest in the aforementioned property after December 16, 2010, an Order discharging any and all liens on the Novar Property by Legal Aid Ontario which were placed on the property after that date.
Costs
160The parties may file written submissions with respect to costs, to be no more than 7 pages in length, not including attachments. Submissions must be received within 10 days from the release of this decision, and any replies to these submissions should be received within 10 days a party receives such submissions.
161If the applicants follow through with their stated intention to have Legal Aid pay or contribute to their legal costs they are to forward a copy of their submissions and a copy of this decision to Legal Aid, and Legal Aid has 10 days to respond upon receipt of such submissions.
Justice E. J. Koke
Released: December 11, 2017
CITATION: Hunt v. Worrod, 2017 ONSC 7397
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kevin Hunt c/o his Court appointed guardians Bradley James Hunt and Justin Abraham Hunt, Applicants
– and –
Kathleen Anne Worrod, Respondent
REASONS FOR DECISION
E. J. KOKE
Released: December 11, 2017
