Tanti v. Tanti

Ontario Reports

Ontario Superior Court of Justice

Mandhane J.

December 22, 2020

154 O.R. (3d) 357 | 2020 ONSC 8063

Case Summary

Costs — Full indemnity — Costs against solicitor personally — Elderly man and young woman marrying over objections of man's son — Son obtaining opinions of his father's mental capacity and obtaining guardianship order in wife's absence — Marriage was valid as son failed to adduce sufficient evidence that his father lacked capacity to marry on the date of the wedding — Full indemnity costs justified against son based on his egregious conduct in obtaining guardianship order based on unfounded allegations and in wife's absence — Costs against solicitor personally was arguable but no order made until solicitor given opportunity to make representations.

Family law — Marriage — Validity — Elderly man and young woman marrying over objections of man's son — Son obtaining opinions of his father's mental capacity and obtaining guardianship order in wife's absence — Marriage was valid as son failed to adduce sufficient evidence that his father lacked capacity to marry on the date of the wedding.

P and S met in 2014 and became friends despite a large age gap. In 2017, they began to refer to each other as companions to their family and friends. S moved into P's house in 2018 after he expressed a desire for a more intimate relationship. Shortly thereafter, P's son, R, obtained an opinion from a gerontologist that P had a moderate cognitive impairment but could live independently with assistance. R and S did not get along and R pressured P to end the relationship. However, P asked S to marry him, hoping that if they were married then R would stop bothering them. They were married in July 2019. R did not learn of the marriage until afterward. P and S then attended a lawyer's office where P signed a power of attorney in favour of S. Shortly after the wedding S left the country on a previously scheduled trip to visit family. While S was away R took P to a geriatric clinic for an assessment which revealed that P's cognitive reasoning was impaired and that he lacked the capacity to handle his financial and medical affairs. An opinion from another doctor stated that P lacked the capacity to appoint a power of attorney. R moved P into R's home and applied for guardianship. The guardianship hearing had been struck from the list because R's counsel had not filed the required confirmation forms, but R and his counsel persuaded the judge to hear the application in the absence of S's counsel. The application was granted and S brought a motion to set it aside. R commenced an application for various forms of relief, and S was added as a party to the application on consent. A judge refused S's motion to expand the scope of issues to be addressed at the hearing, and ordered S to pay partial indemnity costs to R and to P. The matter came before the court on the sole issue of the validity of the marriage based on P's capacity.

Held, the marriage was valid.

R had not adduced sufficient evidence to establish that it was more likely than not that P lacked the capacity to marry S on the date of the wedding. R had adduced expert evidence from the doctors who had assessed P after the wedding, but that evidence was not given any weight because the opinions were not contemporaneous with the marriage, were too heavily influenced by R's unproven allegations about the relationship, and were predicated on P's statements made while he felt under pressure from R to deny the marriage. P's decision to marry S was rational in the circumstances of their relationship in that he was securing the [page358] status quo of daily companionship and a degree of independence. There was no cogent evidence to suggest that his cognitive capacity was so diminished at the time of marriage that he was unable to make decisions regarding his daily affairs or living arrangements. Neither the officiant nor any of the witnesses to the marriage ceremony expressed any concerns about P's ability to understand the vows or the ceremony. The lawyer who handled the power of attorney testified that P was capable of instructing counsel and understood the consequences of his decision.

As the unsuccessful party, R was prima facie liable to pay S's costs on a full indemnity basis in the amount of $50,000. This was a rare and exceptional case where full indemnity costs were justified based on R's egregious conduct. R's approach to the litigation was overly aggressive from the outset. Despite knowing about the marriage, and while S was out of the country, R removed P from his home, changed the locks on the house and closed the couple's joint bank account, all without court order. His application for guardianship was based on unfounded allegations and the order was obtained in the absence of S's counsel. R appeared to have rushed to obtain permanent guardianship precisely to deprive the court of the benefit of a full evidentiary record and the opportunity to hear from S. It was at least arguable that costs be awarded against R's counsel personally, but no such order would be made until counsel had a reasonable opportunity to make representations to the court. P was not liable for any portion of S's costs because he did not take a position at the hearing, nor was he entitled to have his costs paid by either S or R. The award of partial indemnity costs against S in favour of R and P was maintained.

Cases referred to

Chertkow v. Feinstein, 1929 513 (AB CA), [1929] A.J. No. 31, [1929] 3 D.L.R. 339, 1929 CarswellAlta 23, 24 Alta. L.R. 188 (S.C.); Costantino v. Costantino, [2016] O.J. No. 5963, 2016 ONSC 7279 (S.C.J.); Fernandez v. Fernandez, 1983 3644 (MB QB), [1983] M.J. No. 39, [1983] 4 W.W.R. 755, 21 Man. R. (2d) 254, 34 R.F.L. (2d) 249 (Q.B.); Hunt (Guardians of) v. Worrod, [2017] O.J. No. 6636, 2017 ONSC 7397, 32 E.T.R. (4th) 232 (S.C.J.); Knox v. Burton, [2004] O.J. No. 1267, 6 E.T.R. (3d) 285 (S.C.J.), aff'd [2005] O.J. No. 864, 14 E.T.R. (3d) 27 (C.A.); Lacey v. Lacey (Public Trustee of), [1983] B.C.J. No. 1016 (S.C.); McElroy (Re) (1978), 1978 1280 (ON SC), 22 O.R. (2d) 381 (Surr. Ct. J.); Net Connect Installation Inc. v. Mobile Zone Inc. (2017), 140 O.R. (3d) 77, [2017] O.J. No. 5150, 2017 ONCA 766 (C.A.); Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304, 2016 ONSC 7279 (S.C.J.); R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 166 N.R. 245, 71 O.A.C. 241, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243; Reynolds v. Reynolds, [1966] B.C.J. No. 21, 1966 687, 58 W.W.R. 87 (S.C.); Ross-Scott v. Groves Estate, [2014] B.C.J. No. 460, 2014 BCSC 435 (S.C.); White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, [2015] S.C.J. No. 23, 2015 SCC 23, 18 C.R. (7th) 308, 470 N.R. 324, 383 D.L.R. (4th) 429, 67 C.P.C. (7th) 73, 360 N.S.R. (2d) 1

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 57, 57.01(0.b)

Authorities referred to

Shulman, Kenneth, et al., "The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity" (2020) Can. J. Psychiatry 1

Whaley, Kimberly, et al., Capacity to Marry and the Estate Plan (Aurora: Canada Law Book, 2010) [page359]

MOTION to determine validity of a marriage.

William Gilmour, for applicant (respondent on motion).

M.K. Kinch, s. 3 counsel for Paul Tanti (respondent on motion).

Joy Nwawe, for respondent (moving party).

MANDHANE J.: —

Overview

[1] Marriages between the very old and the very young raise eyebrows and turn heads. In popular culture, a "May-December" marriage invariably provokes the ire of adult children who deem the younger spouse a "gold-digger" and plot to protect their inheritance.

[2] Somewhat surprisingly, only a handful of Canadian courts have considered the validity of such marriages. This is one of those cases, and it highlights emerging issues that lie at the intersection of family law, estates law, and elder law. It requires the court to answer deceptively simple questions that have serious implications for the parties.

[3] Here, I am asked to decide whether Paul Tanti, an elderly man with worsening dementia, was capable of marrying his much-younger, live-in companion, Sharon Joseph.

[4] In arriving at my decision, I consider the legal test for capacity to marry, the weight to be given to retroactive capacity assessments, and the factors relevant to determining Paul's capacity at the time of marriage. Overall, I adopt a flexible and individualized approach that seeks to balance the autonomy of elderly persons against their unique vulnerability, while avoiding reasoning based on impermissible stereotypes.

[5] For the reasons below, I find that Paul was capable of marrying Sharon and that their marriage was valid.

The Proceedings

[6] On July 27, 2019, Paul and Sharon were legally married in Toronto.

[7] On August 28, 2019, while Sharon was out of the country, Raymond Tanti, Paul's son, brought an application seeking, amongst other things:

(a) a declaration that Paul is incapable of managing property and personal care;

(b) guardianship of Paul's property and person;

(c) custody of Paul; [page360]

(d) an order permitting him to lease and eventually sell Paul's home;

(e) an order freezing all bank accounts jointly held by Paul and Sharon; and

(f) an order suspending the power of attorney granted by Paul to Sharon.

[8] In support of his application, Raymond stated: "it appears likely that Paul has become subject to manipulation and perhaps loss and misappropriation of funds at the hands of a hired caregiver, Sharon Joseph".

[9] While Raymond's application for guardianship was scheduled to be heard on September 12, 2019, upon arriving at the courthouse, counsel learned that the matter had been struck from the list because Raymond's counsel had not filed the required confirmation forms. Sharon and her counsel left around 2:00 p.m.

[10] Raymond and his counsel stayed at the courthouse and persuaded Harris J. to hear their application in the absence of Sharon's counsel. Justice Harris granted the application, and the next month, Sharon brought a motion to set it aside.

[11] The Office of the Public Guardian and Trustee appointed s. 3 counsel for Paul in November 2019. Paul's counsel does not take a position on the validity of the marriage, and everyone agrees that Paul currently lacks the capacity to instruct counsel or otherwise participate in this application.

[12] On July 31, 2020, Shaw J. ordered, on consent, that Sharon be added as a party to the application. She also ordered access visits between Sharon and Paul. In setting the matter down for a four-day hearing, Shaw J. stated that "the sole issue to be determined at the hearing is the validity of the marriage". The balance of relief sought by Sharon was adjourned sine die and returnable on notice.

[13] On October 15, 2020, McGee J. refused Sharon's motion to expand the scope of issues to be addressed at the hearing. In relation to whether the court should make an order waiving privilege so that Paul's former lawyer, Amanda Smyth, could give evidence, McGee J. stated:

It is Ms. Smyth's role to hold privilege and I am not satisfied that any document or testimony that may be privileged is relevant to the November 30, 2020 hearing. Ms. Smyth's involvement with Mr. Paul Tanti predates his proposed July 2019 marriage with Ms. Joseph by over two years. If Ms. Joseph is successful in confirming a date of marriage, the Will prepared by Ms. Smyth is invalidated. My decision on this ground for relief does not bind the trial judge who will have the benefit of a fuller record. [page361]

Justice McGee ordered Sharon to pay partial indemnity costs to Paul in the amount of $7,345, and to Raymond in the amount of $8,475.

[14] Between November 30 and December 3, 2020, I presided over the four-day video-conference hearing to determine the validity of the marriage. Paul observed portions of the hearing from Raymond's home without the risk of exposure to the virus. I am thankful to the parties, counsel, and staff for working together to navigate the new processes associated with the COVID-19 pandemic.

Facts

[15] Paul and Sharon met in 2014 when Paul went to a community organization seeking volunteer assistance with small jobs at his house in Toronto. Sharon eventually attended at his house to help with some exterior painting.

[16] Paul and Sharon became friends, and in and around 2017, they began to refer to one another as "companions" with family, friends, and professionals.

[17] A number of witnesses testified that Paul was "sharp", social, liked to dress up, and enjoyed being out and about. Together, Sharon and Paul visited tourist sites and spent time with family and friends. Sharon drove Paul to appointments and she accompanied him to his eye surgery in 2018. Sharon cooked and Paul gave her money for shopping.

[18] There was no evidence whatsoever that Sharon was a hired caregiver for Paul. Throughout their relationship, Sharon was employed with a local school board. There was also no evidence to support Raymond's allegation that Sharon manipulated Paul into having a relationship with her. Sharon never stole from Paul or otherwise misappropriated his funds. She never abused or otherwise mistreated Paul.

[19] Sharon moved into Paul's house in early 2018 after he expressed a desire for a more intimate relationship. During this time period, Raymond would visit Paul once a week to drop off groceries, exchange Paul's laundry and check in on him. Raymond did not like Sharon, and during his visits, he pressured Paul to end the relationship with her.

[20] In February 2018, Raymond took Paul to see Dr. Varga, a gerontologist at St. Joseph's Health Centre in Toronto. Dr. Varga found that Paul had cognitive impairment of a moderate degree but also noted that he could live independently with assistance. She did not opine on Paul's capacity to marry. Raymond admitted that he never told Sharon that Paul had dementia or otherwise [page362] talked to her about Paul's capacity because he "didn't have good communication with her".

[21] On his 89th birthday, in January 2019, Paul asked Sharon to marry him. Sharon was hesitant at first because she was worried that Raymond would be angry.

[22] In early June 2019, Paul asked Sharon to marry him again. Paul said that he was worried about losing her and that he hoped that Raymond would stop bothering them if they were married. Paul bought Sharon an engagement ring later in June, and the couple also got a marriage licence, booked a venue, and hired an officiant.

[23] In June or July 2019, Paul introduced Sharon as his "girlfriend" to his cousin, Spiro Tanti, at the Maltese church.

[24] Paul and Sharon were married on July 27, 2019. There were five people in attendance. A Reverend performed the ceremony and Sharon's cousin, Avril George, was a witness. Paul was able to answer the questions asked by the officiant clearly. Afterwards, Avril said that Paul "told me how much he loved Sharon Joseph and how happy that he was married to her". One wedding photo shows Paul smiling and giving a thumbs up, and another shows him and Sharon holding hands with their wedding rings. Given the size of the wedding and the history between father and son, I would not have expected Raymond or his family to have been invited or attended.

[25] Raymond visited the couple's house on July 30, 2019, but refused to enter because Sharon was there. His wife, Carol, telephoned Paul and asked him to have Sharon leave. Paul refused and said that Sharon was his wife. Upon learning of the marriage, Raymond became verbally abusive and only left the vicinity of Paul's house after the police were called. Raymond went back to the couple's house the next day and repeatedly demanded to know Paul's plans for his property and estate. Raymond was angry and the couple was scared. Again, Raymond only left after the police were called.

[26] Later that same day, July 31, 2019, Sharon and Paul attended at the law office of Desmond Brizan. Brizan met with Paul alone, took his instructions, explained the implications of signing a power of attorney, and in so doing, concluded that Paul had sufficient capacity to sign a power of attorney in favour of Sharon.

[27] Within two weeks of the marriage, on August 10, 2019, Sharon departed for a previously scheduled trip to Grenada to visit her extended family for 16 days. While Sharon was in Grenada, Paul was alone in his home in Toronto. Sharon's friend, Cindy Bonnick, and a caregiver, Karma Choezen, checked in on Paul from time to time, while Sharon's daughter, Jewel Rigault, [page363] helped Paul with his groceries. Paul told Jewel that he was happy that Sharon had agreed to be his wife.

[28] Within days of learning that Sharon was out of the country, Raymond met with Paul's banker who informed him that Sharon was now Paul's power of attorney, and that he could no longer access his father's accounts.

[29] On August 15, 2019, Raymond took Paul for an urgent assessment to the geriatric clinic at St. Joseph's Health Care Centre. Dr. Varga found that Paul's cognitive reasoning was impaired and that he lacked the capacity to handle his financial and medical affairs. Dr. Varga did not provide an opinion on Paul's capacity to marry. She referred him to Dr. Stall for a second opinion.

[30] Raymond moved Paul to his home in Campbellford on or around August 20, 2019, and started to inquire into long-term care homes for Paul. On August 28, 2019, while Sharon was still in Grenada, Raymond commenced this proceeding.

[31] When Sharon arrived home from her trip in early September, the locks at the house had been changed and a letter from Raymond's counsel indicated that Paul was now living with Raymond.

[32] Dr. Stall conducted a one-hour psychogeriatric assessment of Paul on September 11, 2019. Dr. Stall found that Paul lacked the capacity to appoint a power of attorney but did not provide an opinion on his capacity to marry. Dr. Stall noted that Raymond and Paul kept arguing about Sharon. In his notes, Dr. Stall wrote: "Currently, Mr. Tanti states that Sharon is 'absolutely out of the picture' but this is really to appease his family and he would prefer not to lose her as a companion."

[33] The day after Dr. Stall's assessment, Raymond obtained legal guardianship over Paul.

[34] On December 29, 2019, Dr. [Marotta] conducted an independent assessment of Paul's capacity. He concluded that Paul lacked the capacity to manage property but did not provide an opinion about Paul's capacity to marry. At Dr. Marotta's examination in September 2020, when asked for his retrospective opinion, he stated that Paul likely did not have the capacity to marry, in part, because he did not seem to have any recollection of the marriage.

[35] At Dr. Stall's examination in September 2020, when pressed for a retrospective opinion on Paul's capacity to marry, he said that Paul could not have had the requisite capacity because he had told both Dr. Varga and himself that he could not recall the marriage.

[36] Dr. Varga refused to provide a retrospective opinion on Paul's capacity to marry. [page364]

Analysis

[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 (Guardians of) v. Worrod, [2017] O.J. No. 6636, 2017 ONSC 7397 (S.C.J.), at para. 13; McElroy (Re) (1978), 1978 1280 (ON SC), 22 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, [1966] B.C.J. No. 21, 1966 687, 58 W.W.R. 87 (S.C.), at p. 90-91 W.W.R.

[39] In the absence of any argument of duress or fraud, Sharon's motivations for pursuing a relationship with Paul are largely irrelevant: Fernandez v. Fernandez, 1983 3644 (MB QB), [1983] M.J. No. 39, [1983] 4 W.W.R. 755 (Q.B.),at p. 759 W.W.R.

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,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 and the Estate Plan (Aurora: Canada Law Book, 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, 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, [page365] 1929 513 (AB CA), [1929] A.J. No. 31, 1929 CarswellAlta 23, 24 Alta. L.R. 188 (S.C.), at p. 191 Alta. L.R. 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. Groves Estate, [2014] B.C.J. No. 460, 2014 BCSC 435 (S.C.), 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] O.J. No. 1267, 6 E.T.R. (3d) 285 (S.C.J.), aff'd [2005] O.J. No. 864, 14 E.T.R. (3d) 27 (C.A.) noted that the assessment of capacity must be time specific: Costantino v. Costantino, [2016] O.J. No. 5963, 2016 ONSC 7279 (S.C.J.), 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 individual who took the person's instructions at the time: Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304, 2016 ONSC 7279 (S.C.J.), at para. 4.

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

Expert evidence

[47] Raymond sought to adduce evidence from four doctors who assessed Paul after the marriage: Dr. Varga (who assessed Paul on August 15, 2019), Dr. Stall (September 11, 2019), Dr. Marotta (December 5, 2019) and Dr. Pallandi (May 25, 2020).

[48] While the parties agreed that the doctors were properly qualified, Sharon challenged the admissibility of their evidence. The doctors' records and examinations were before the court, however, because Raymond did not file any experts' reports, Sharon chose not to cross-examine the experts prior to this hearing.

[49] As a threshold matter, I must only admit expert evidence that is relevant, necessary, from a properly qualified expert, and not subject to any exclusionary rule: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, at p. 20 S.C.R. Once the threshold factors are met, in my role as gatekeeper, I can exclude expert evidence if I find that the harm of admitting it outweighs the benefits to [page366] the trial process: White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, [2015] S.C.J. No. 23, 2015 SCC 23, at para. 54.

[50] I accept that, because dementia is a progressive disease with people losing their abilities over time, I must be particularly cautious when faced with retroactive assessments of Paul's capacity to marry. On that basis, I agreed with Sharon that Dr. Pallandi's assessment was not sufficiently connected in time to the marriage to be relevant, and I excluded his evidence.

[51] However, I refused to exclude Dr. Varga, Dr. Stall, and Dr. Marotta's evidence. Their assessments took place within six months of the marriage and were prima facie relevant to my determination. I also rejected Sharon's claim that the experts were biased toward Raymond. They all acknowledged their duties to the court and none of them were "hired guns". Moreover, given that the hearing took place without a jury, I found that the risk of harm to the trial process was minimal if their evidence was admitted.

[52] That being said, 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.

[53] While Dr. Stall and Dr. Marotta provided retrospective assessments of Paul's capacity to marry during their examinations in September 2020, I find that their opinions are not sufficiently reliable to be given much weight. Their retrospective capacity assessments took place more than a year after the marriage, were based on a single interaction with Paul, and were fundamentally premised on Raymond's unproven allegation that Sharon was a hired caregiver who had misappropriated Paul's funds.

[54] Moreover, the experts' retrospective assessments of capacity relied almost exclusively on Paul's stated inability to remember the marriage. This is problematic because Paul's statements to the doctors were not reliable. Raymond was present or close by when Paul spoke to the doctors. As Paul's guardian, who was considering putting him in a long-term care home, Raymond was in a position of authority over Paul. I find that Raymond likely exerted pressure on Paul to deny the marriage. Indeed, Dr. Stall noted in his report that it seemed as though Paul was torn between wanting to spend his remaining days with Sharon and his family's expectation that he cut her out of his life. [page367]

[55] In short, I cannot give the expert opinion evidence about Paul's capacity to marry any weight. The doctor's opinions were not contemporaneous with the marriage, were too heavily influenced by Raymond's unproven allegations about the relationship, and were predicated on Paul's statements made under duress.

Direct evidence

[56] In the absence of reliable expert evidence about Paul's capacity to marry, I placed the most weight on the direct evidence about Paul's capacity leading up to and immediately after the wedding.

[57] Given the passage of time and the decline in Paul's dementia, I find that his conduct during the hearing is irrelevant to determining his capacity at the time of the marriage. I also refused to consider the evidence of lawyer Amanda Smyth because her interactions with Paul in 2017 were not sufficiently connected in time to the marriage.

[58] I considered the following factors in determining Paul's capacity to marry Sharon on July 27, 2019:

(a) the couple's relationship prior to the marriage;

(b) Paul's cognitive capacity leading up [to] and immediately after the marriage;

(c) Paul's understanding of the marriage ceremony and vows, and the obligations it created; and

(d) Paul's interactions with professionals contemporaneous to the marriage.

[59] Based on these factors, I am satisfied that Paul had the required capacity to marry Sharon on July 27, 2019.

Paul and Sharon's relationship prior to the marriage

[60] This was not a rush to the altar. The overwhelming evidence is that Paul and Sharon were mature adults in a long-term relationship that unfolded and deepened over the course of five years. By July 2019, Paul and Sharon had been living together for over a year and holding themselves out to family and friends as companions and girlfriend/boyfriend.

[61] This was not a predatory marriage. Raymond's application for guardianship relied on his unproven allegation that Sharon was a hired caregiver who misappropriated Paul's funds. In casting Sharon in this unfavourable light, Raymond sought to rely on stereotypes about Black and Caribbean immigrant women to bolster his credibility. However, in the hearing before me, Raymond [page368] adduced no evidence to support his allegations. Sharon was not paid to care for Paul and never misappropriated his funds, nor did she manipulate or pressure Paul into marrying her.

[62] If anyone pushed Paul into marriage, it was Raymond. After Paul and Sharon began living together, Raymond embarked on a campaign of harassment and intimidation aimed at forcing Paul to abandon his relationship with Sharon. Ironically, part of Paul's motivation in marrying Sharon was to persuade Raymond to leave him and Sharon alone.

[63] Indeed, I find that Paul's decision to marry Sharon was rational in the circumstances of their long-term relationship. In marrying Sharon, Paul was securing the status quo. He would be guaranteed daily companionship and a degree of independence, which included continuing to live in his home, having homecooked meals, and seeing his friends and family. Sharon enjoyed Paul's company and was willing to accompany him on his social engagements, drive him to appointments, and help around the house.

[64] In the absence of any evidence of duress, the fact that Sharon stood to benefit financially from her relationship with Paul is irrelevant to his capacity to marry.

Paul's cognitive capacity leading up to and immediately after the marriage

[65] Paul was not diagnosed with or being treated for dementia prior to the marriage, nor was he found incapable of managing his property or person.

[66] During 2018 and 2019, despite being a widower in his late 80s, Paul was living independently in his detached home in Toronto. At some point, Sharon moved in and helped out, but her time was limited because she worked outside the home. Raymond provided weekly laundry and groceries. This continued up until a few days after the marriage.

[67] There is one medical note from Dr. Varga which suggests that Paul started to lose some of his capacity around February 2018. However, besides this brief assessment by Dr. Varga, Raymond took no other steps to have Paul diagnosed or treated for dementia prior to the marriage. He did not tell Sharon about his concerns. He did not suggest moving Paul to his home in Campbellford or to an assisted living facility.

[68] There is simply no cogent evidence to suggest that Paul's cognitive capacity was so diminished at the time of marriage that he was unable to make decisions regarding his day-to-day affairs or living arrangements. The weight of the evidence supports a finding that Paul's capacity was beginning to diminish but not to the extent claimed by Raymond. [page369]

Paul's understanding of the marriage ceremony, vows and implications

[69] Neither the officiant nor any of the witnesses to the marriage ceremony expressed any concerns about Paul's ability to understand the marriage vows or the ceremony. The photos from the day show a man who is dressed for the occasion and who seems happy and content.

[70] I also find that 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.

Impressions of professionals who interacted with Paul after the marriage

[71] Raymond took Paul to see Dr. Varga on August 15, 2019 for an urgent assessment. She noted that he was pleasant and cooperative, but that his cognitive reasoning was in the impaired range. She went on to find that Paul lacked capacity to handle his financial and medical affairs.

[72] Dr. Varga did not opine on his capacity to marry, but Raymond suggests that I can infer that his capacity to marry was impaired. I refuse to do so. Dr. Varga's report is unreliable because her assessment of Paul's capacity was predicated on Raymond's characterization of Sharon's relationship with Paul as predatory in nature. This characterization was not borne out by the evidence before me.

[73] On the other hand, I place significant weight on the evidence of Desmond Brizan, who was summoned and examined by all the parties. Brizan testified that when Paul came to visit him within four days of the marriage, Paul was capable of instructing counsel and understood the consequences of his decision to grant power of attorney to Sharon for the purposes of care and property.

[74] I reject Raymond's argument that he was deprived of a meaningful opportunity to cross-examine Brizan because he could not ask him about solicitor-client privileged communications. To the contrary, under cross-examination, Brizan said that Paul gave him coherent instructions and that, through their conversation, Brizan concluded that Paul understood the implications of signing a power of attorney on July 31, 2019.

[75] Overall, 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. [page370]

Costs

[76] As the successful party, Sharon asks me to award her full indemnity costs in the amount of $150,000 (which includes $50,000 to be paid to her previous counsel). Sharon asks me to apportion liability between Raymond; his counsel, Mr. Gilmour; and Paul's counsel, Ms. Kinch. Finally, she asks me to overturn McGee J.'s cost award against her.

[77] Sharon relies on s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. She also asks me to rely on documents -- labeled as "exhibits" -- that she attached to her cost submissions. Some of these documents were entirely new to the court and not properly admissible. I refuse to rely on the new materials.

[78] Mr. Gilmour and Ms. Kinch both retained counsel who wrote to the court. All counsel subsequently attended a conference call so that I could canvas their preliminary views. If I am prepared to entertain an order of costs payable by Mr. Gilmour and/or Ms. Kinch, personally, their counsel ask that I require Sharon to bring a motion, with appropriate affidavit materials, cross-examinations, facta and oral argument.

Quantum

[79] I have determined that the total amount of costs that Sharon can reasonably expect to recover for this hearing is $50,000 including all fees, disbursements and HST.

[80] Rule 57.01(0.b) allows me to consider "the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed".

[81] By way of comparison, Raymond's bill of costs totalled just over $25,000, which included relatively large disbursements for retaining experts. Sharon did not proffer any expert evidence and there were no large disbursements.

[82] Indeed, Sharon's approach to the litigation unreasonably increased her costs. Most notably, after changing counsel mid-way through the proceedings, Sharon tried to "re-start" the litigation by instructing her new counsel to re-litigate orders that were obtained with the consent of her previous counsel. As a result, new counsel was largely required to start afresh.

[83] Sharon also made the tactical decision not to cross-examine the expert witnesses prior to this hearing, but then proceeded to challenge the reliability of their evidence through extensive written and oral argument. She relied on solicitor-client communications that pre-dated the marriage by two years, even after being warned by McGee J. that these were likely irrelevant. She [page371] produced videos of Paul just days before the hearing and then admitted that she had been selective in her curation.

[84] I also refuse to overturn McGee J.'s costs award against Sharon. I agree with McGee J. that Sharon's motion was disorganized, unreasonable and unsuccessful and that costs were properly awarded against her. Indeed, I note that Ms. Nwawe's disorganization and lack of familiarity with the rules of evidence were significant factors that lengthened the proceedings before me as well.

[85] Overall, I must also discount Sharon's claim for costs significantly. I find that $50,000 is the maximum amount that Raymond could reasonably be expected to pay in costs. I also find that McGee J.'s costs award against Sharon should be maintained.

Indemnity scale

[86] I agree with Sharon that this is one of those "rare and exceptional" cases where an award of full-indemnity costs is appropriate based on Raymond's "egregious" conduct leading up to this hearing: Net Connect Installation Inc. v. Mobile Zone Inc. (2017), 140 O.R. (3d) 77, [2017] O.J. No. 5150, 2017 ONCA 766 (C.A.), at paras. 8-10.

[87] Raymond's approach to the litigation was overly aggressive from the outset. Despite knowing about the marriage, and while Paul's wife was out of the county for just over two weeks, Raymond removed Paul from his home, changed the locks on the house and closed the couple's joint bank account, all without court order. He then proceeded to file an application for guardianship based entirely on the unfounded allegation that Sharon was a hired caregiver, that she had stolen from Paul, and that she had deserted Paul.

[88] Despite knowing Sharon had retained counsel to oppose his application, Raymond obtained permanent guardianship over Paul in the absence of Sharon's counsel. This effectively reversed the onus and required Sharon, Paul's legal wife, to bring a motion to challenge the guardianship order.

[89] The right approach would have been for Raymond to ask Harris J. to make a temporary guardianship order and to schedule the matter to return on a date that Sharon's counsel was available. That would have protected Paul's interests in the short term, while ensuring that the matter could be determined expeditiously and with finality. Instead, the court was required to hear numerous motions to get this matter back on track.

[90] What is most troubling, however, is that Raymond appears to have rushed to obtain permanent guardianship over Paul precisely to deprive the court of the benefit of a full evidentiary record [page372] and the opportunity to hear from Sharon. This became clear at the hearing before me when Raymond failed to adduce any evidence to support his allegation that Sharon was a paid caregiver that stole from Paul.

[91] Indeed, at one of the subsequent proceedings, I would have expected Raymond to clarify for the court the true nature of Paul's and Sharon's relationship. I find that Raymond's failure to do so was calculated to mislead the court. Indeed, in his closing arguments, Raymond encouraged me to rely on impermissible stereotypes by repeatedly noting that the relationship between Paul and Sharon was "unusual".

Apportioning liability for costs

[92] As the unsuccessful party, Raymond is prima facie liable to pay Sharon's costs on a full-indemnity basis in the amount of $50,000.

[93] Paul is not liable for any portion of Sharon's costs because he did not take a position at the hearing, nor is he entitled to have his costs paid by either Sharon or Raymond.

[94] As a threshold matter, I am not prepared to entertain Sharon's request for costs against Ms. Kinch, personally. As of December 2020, Dr. Marotta indicated that Paul could not instruct counsel or otherwise participate in this litigation. In the absence of instructions, it was proper for Ms. Kinch to refuse to advance a position on the issue of the marriage validity. Ms. Kinch is not liable for any costs awarded.

[95] On the other hand, it is at least arguable that costs should be awarded against Raymond's counsel, personally. Suffice it to say that much of Raymond's aggressive and misleading conduct during this litigation took place while he was represented by Mr. Gilmour.

[96] However, I agree with Mr. Gilmour's counsel that Rule 57 requires that I grant him a reasonable opportunity to make representations to the court before any costs are awarded

[97] Therefore, should Sharon wish to pursue costs against Mr. Gilmour personally, the parties shall abide by the following timetable:

(a) Sharon shall serve and file a notice of motion (Form 37A), along with any supporting affidavits and/or relevant transcripts, on or before January 8, 2021;

(b) Mr. Gilmour shall serve and file his response to the motion, along with any supporting affidavits and/or relevant transcripts, on or before January 22, 2021; [page373]

(c) cross-examinations shall be limited to two hours per affiant and shall be completed on or before February 26, 2021;

(d) after all materials have been filed, and cross-examinations have been completed, counsel shall contact the trial office to obtain a date for a 59-minute motion before me.

[98] If Sharon does not file a motion regarding costs on or before January 8, 2021, Raymond shall pay Sharon's costs on a full-indemnity basis in the amount of $50,000, on or before February 8, 2021.

Next Steps

[99] This hearing was solely to determine the validity of the marriage between Sharon and Paul.

[100] Pursuant to Shaw J.'s order, the balance of relief sought by Sharon on this application is returnable on 20 days' notice to all parties.

[101] Prior to scheduling any further motions or hearing dates, the parties shall contact the trial coordinator's office to set a date for a settlement conference, which shall be conducted prior to the end of March 2020.

Motion granted.

End of Document