Love and Marriage? More like Greed and Marriage.

The percentage of Canadians over the age of 65 continues to increase and more people than ever before are living over the age of 85.[1] The aged wisdom of our older adults is often accompanied by an increased vulnerability.  A number of factors may contribute to an older adult’s increased vulnerability, including his or her reliance on caregivers in order to maintain independence, and medical issues affecting cognition, such as Alzhiemer’s disease.

Since these issues affect capacity and independence, older adults may become increasingly susceptible to elder abuse and exploitation. One form of exploitation and abuse as against the elderly is a predatory marriage.

The colloquial term “predatory marriage” describes a situation where an unscrupulous opportunist preys upon an older adult with diminished reasoning ability, and marries him or her in order to access the wide range of financial and property entitlements that come with marriage.

This is what happened to Donna Walker (“Ms. Walker”), as set out in the recent decision of the British Columbia Supreme Court in Devore-Thompson v. Poulain[2]. Justice Griffith set aside the marriage for lack of the requisite capacity. While the Court also set aside two wills based on Ms. Walker’s lack of testamentary capacity, this article focuses primarily on the Court’s treatment of decisional capacity to marry.

Background Facts

Ms. Walker passed away on December 26, 2013, at the age of 74. She had no children but considered her niece, Donna Devore-Thompson (the “Plaintiff”) to be a daughter of her own. Ms. Walker was described as a strong, independent woman who lived on her own in her condominium.

Ms. Walker had been previously married and divorced. Subsequently, she had two common-law relationships, the last of which ended in 2005. That same year, Ms. Walker was diagnosed with Alzhiemer’s disease. According to her close family and friends, Ms. Walker’s condition progressively deteriorated, to the point where she could no longer cook, had difficulties taking her medications, forgot how to use utensils and a phone, forgot who people were, and was no longer able to clean or care for herself. Ms. Walker was fiercely in denial about her illness. The Plaintiff respected Ms. Walker’s wishes and provided assistance so that Ms. Walker was able to live independently for as long as possible.

Following the advice of a geriatric medicine specialist, Dr. Maria Chung, on February 16, 2007, Ms. Walker appointed the Plaintiff as her attorney under a Continuing Power of Attorney for Property. On May 17, 2007, she also signed a representation agreement appointing her sister and the Plaintiff as her representatives under the Representation Agreement Act, R.S.B.C. 1996, c. 405, giving them each independent authority to make health and personal care decisions on her behalf.

In 2006, as Ms. Walker’s health had deteriorated significantly, Ms. Walker met Floyd Poulain (“Mr. Poulain”). They were both at a local mall when Mr. Poulain asked Ms. Walker for five dollars and her address and phone number.  She gave him the five dollars as well as her phone number and address, so that he could pay her back.

Thereafter, Mr. Poulain began his covert campaign to get access to Ms. Walker’s finances and property.  The Plaintiff became increasingly concerned when she noticed that Ms. Walker was making frequent attempts to withdraw money from her account unnecessarily and when she became aware that Ms. Walker’s condominium had been listed for sale on April 27, 2009.  Before that time, Ms. Walker had always said that she loved living in her condominium. Her family intervened, and the listing was cancelled.

Part of Mr. Poulain’s method to access Ms. Walker’s finances involved preying on Ms. Walker’s vulnerabilities and planting suspicions that the Plaintiff was trying to steal her money.

Unbeknownst to the Plaintiff, Mr. Poulain and Ms. Walker were married in June of 2010. Ms. Walker’s family and treating physician were caught completely off guard by the marriage since Ms. Walker had always firmly stated that she never wanted to remarry. She did not inform any of her family members that she intended to marry Mr. Poulain. In fact, when the Plaintiff questioned Ms. Walker about the marriage, she explained that she said that she did not know why she married him, “except he said if I married him he would help me get my money away from you.”[3]

During his testimony, Mr. Poulain was unable to recall any of the details of the wedding. None of Mr. Poulain or Ms. Walker’s family attended the wedding and the witnesses were supplied by the marriage commissioner. There was one photograph taken at the wedding where Ms. Walker’s facial expression was vacant. The marriage commissioner’s evidence was unhelpful on the issue of whether Ms. Walker had capacity to marry as he did not have an independent recollection of the ceremony.

Justice Griffith noted that given the advanced state of Ms. Walker’s illness and the brevity of the ceremony, the fact that the marriage ceremony took place was of little help in determining capacity.

Dr. Chung, Ms. Walker’s treating physician, maintained that Ms. Walker was not capable of consenting to the marriage. After she learned about the marriage, she made an urgent referral to the Public Guardian and Trustee (“PGT”) stating her opinion that Ms. Walker was incapable of entering into a marital relationship “as she is moderately-severely demented and has significant impairment of executive function”.

Two months after their marriage and after various attempts to get access to Ms. Walker’s funds, including repeatedly attending at the bank and contacting a lawyer, Mr. Poulain had a new power of attorney prepared for Ms. Walker, appointing him as her attorney for property. The Plaintiff challenged the authenticity of this document as she claimed that she was with Ms. Walker on the day that it was signed.

On September 14, 2010, a Certificate of Incapacity was issued pursuant to s. 1(a) of the Patients Property Act, R.S.B.C. 1996 c. 349, declaring Ms. Walker incapable of managing her legal and financial affairs.  The Public Guardian and Trustee (PGT) was thereby appointed committee. Under B.C. law, a ‘committee’ is a person or institution who is appointed to make personal, medical, legal and/or financial decisions for a mentally incapable adult, like Ms. Walker, who cannot make those decisions for herself.[4]

Ms. Walker was hospitalized following a fall in her condominium and a note was found in her home addressed to her from Mr. Poulain, in which he wrote “will you please go over to the bank and with draw $40,000…It is really really important”.

Mr. Poulain testified that he had no knowledge of Ms. Walker’s health condition and he did not notice any changes in Ms. Walker’s memory, mental capacity, judgment or analytical abilities. Justice Griffith found Mr. Poulain’s evidence to be highly suspect and not credible. She concluded:

the whole of the evidence leads me to conclude that it is likely that Mr. Poulain manipulated Ms. Walker by suggesting that she could not trust her niece, the plaintiff, and that the plaintiff was stealing from her or trying to steal from her, thereby taking advantage of Ms. Walker’s vulnerable mind and inserting himself in her life as her ally...I have reluctantly concluded that Mr. Poulain was a dishonest witness who was motivated to overstate Ms. Walker’s mental abilities and to deny that she had any impairment so that he could try to support his actions in respect of the 2009 Will and in respect of their Marriage, and in order to justify his other actions such as trying to get her more access to her money held at Scotiabank, and to get her to move that money to another bank.[5]

Capacity to Marry: Legal Principles

Justice Griffith began her outline of the law as it relates to capacity to marry by noting that marriage is a contract and therefore the parties must possess the requisite legal capacity to enter into the contract.[6] She confirmed the finding in Hart v. Cooper[7] that “a person is mentally capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and the duties and responsibilities it creates.”[8]

The Court also relied on Wolfman-Stotland [9] in finding that the “capacity to marry must involve some understanding of with whom a person wants to live and some understanding that it will have an effect on one’s future in that it will be an exclusive mutually supportive relationship until death or divorce.” [10]

The Court noted that a lack of capacity to marry will render a marriage void ab initio, as set out in Ross v. Potvin.[11]

Application and Decision

Justice Griffith thoroughly reviewed the evidence and ultimately concluded that Ms. Walker did not have the requisite decisional capacity to marry Mr. Poulain on the date of marriage. Ms. Walker’s marriage to Mr. Poulain was therefore set aside and declared void ab initio. Furthermore, her Honour found that that Ms. Walker did not possess the requisite decisional capacity to execute a Will in 2009 or 2007, though this portion of her analysis is not discussed here.

In reaching its decision, the Court relied on the evidence and concluded that:

• As of the date of marriage, Ms. Walker was at a stage of her illness where she was highly vulnerable to others and she had no insight or understanding that she was impaired and was not capable of weighing the implications of marriage to Mr. Poulain;

• Ms. Walker’s mental capacity had diminished to such an extent that by 2010 she could not have formed an intention to live with Mr. Poulain or to form a lifetime bond; and

• Ms. Walker could not know even the most basic meaning of marriage or understand its implications at the time of the marriage.

Analysis

The factual circumstances surrounding this case provide a strong example of how older adults, who may have once been fiercely independent, may become increasingly vulnerable to the persuasion of predators as a result of cognitive decline or other issues impacting their mental capacity.

Unlike section 55 of the Wills, Estates and Succession Act in B.C. (which was not in force at the time that Ms. Walker was married), section 15 of the Succession Law Reform Act (SLRA) in Ontario provides that marriage automatically revokes a Will or testamentary document.

This provision of the SLRA causes serious issues where the vulnerable older adult’s Will is revoked upon marriage but he or she lacks the capacity to make a new Will or dies before a new Will can be executed. The predatory spouse then stands to benefit from the wide range of statutorily-mandated property rights that come with marriage. These include an equalization payment under section 5 of the Family Law Act as well as a surviving spouse’s entitlement to a portion or all of the deceased spouse’s property under intestate succession regime set out in the SLRA.

It is clear that predatory marriages are a form of elder abuse. While not all situations of elder abuse are alike, this decision casts a strong light on the issue of predatory marriages in Canada and the need for legislative reform in order to prevent and combat predatory marriages.

On an individual level and in the course of daily lives, we must each become conscious of circumstances involving older adults that arouse suspicion. Acting on these suspicions, however, necessitates a balancing of the older adult’s rights and freedoms with the protection of our increasingly vulnerable population.