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Family Law

This appeal concerned the capacity of a person to enter into a marriage.


The parties were parried on July 27, 2019. On September 12, 2019, the husband’s son claimed guardianship over his father and his father’s property and same was granted on the basis that the husband was incapable of personal care and managing property. The husband was appointed counsel by the Office of the Public Guardian and Trustee. The wife brought a motion to set aside the guardianship order and on July 31, 2020, Justice Shaw ordered that she be added as a party to the guardianship proceedings. At a trial in December of 2020, Justice Mandhane found that the husband did have capacity to marry and the husband’s son appealed on behalf of his father.

At trial, the sole issue was whether the husband had capacity to marry the wife in July of 2019 because if there was a lack of capacity, then the marriage would be rendered void.

While the trial judge acknowledged that there was some indication of the husband’s cognitive decline prior to the marriage, there was no persuasive evidence that at the time of the marriage, the husband’s capacity or cognitive status had diminished to the point that he was unable to make day to day decisions. Additionally, the trial judge found that whether or not the wife stood to benefit financially from the marriage was irrelevant to the question of the marriage’s validity unless there was some evidence of duress. In particular, the tried judge relied on the evidence of a lawyer that the husband had consulted at the time of marriage who testified that the husband was able to provide him with coherent instructions to prepare a power of attorney over property.


The husband’s son raised 5 ground of appeal:

  1. The trial judge applied the wrong test to determine the husband’s capacity to marry
  2. The trial judge relied on her own research without allowing the parties to make submissions on the point
  3. The trial judge failed to accept certain expert evidence
  4. The trial judge accepted the evidence of a lay witness without permitting meaningful cross-examination
  5. The trial judge demonstrated a reasonable apprehension of bias

The court clarified that in the face of an otherwise legal marriage, the person who is challenging the marriage on the basis of a lack of capacity, in this case the husband, has the burden of establishing that a party lacked capacity to marry. Additionally, the evidence led by that party must be of a “sufficiently clear and definite character” as to constitute more than a “mere” preponderance of the evidence.

The Court of Appeal then went out to outline a brief overview of the law of capacity to marry as was relied upon by the trial judge:

  • When determining legal capacity, courts must balance individual autonomy against the vulnerability that can come with age or disability.
  • The determination of legal capacity is fluid: it is decision, time and situation specific
  • The requirements of legal capacity vary significantly between different areas of law and must be applied to the specific decision, act or transaction at issue
  • The test for capacity to marry is as follows: the parties must be able to understand the nature of the marriage contract, and the duties and responsibilities that flow from it – Chertkow v Feinstein. The Court of Appeal found that the trial judge had correctly applied this test.
  • The inability to manage ones 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.” – Ross-Scott v Groves Estate
  • Assessment of an individual’s capacity must be time specific
  • Capacity is situation specific

The Court of Appeal was satisfied that the trial judge had applied the correct test for determining capacity to marry. The Court of Appeal also stated that capacity to marry must also involve some understanding of with whom the person wants to live and an 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 pursuant to Devore-Thompson v Poulain. The Court of Appeal was satisfied that the husband understood the duties and responsibilities that flowed from the marriage. For example, the husband told another individual a few days after the marriage, that he refused to remove his wife from the home because she was his wife and he instructed his lawyer to make changes to his affairs that were consistent with the wife being his life partner.

The Court of Appeal relied upon the decision in Heron Bay Investments Ltd. V. R. in confirming that it is not inappropriate for a judge to consider relevant authorities regardless of whether these authorities were raised by the argument in argument.


The trial judge ultimately dismissed the appeal and found that the husband had the requisite capacity to marry.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.