Are BC residents at increased risk of falling victim to predatory marriage during the COVID-19 pandemic, particularly those who are elderly or suffering from cognitive impairment such as dementia? There is some cause for concern that the conditions brought about by the coronavirus pandemic may lead to an increased risk of predatory relationships, so in this post our Vancouver family law and estate litigation team will review the issue of legal capacity to marry, separate, or divorce.
What is predatory marriage?
The term “predatory marriage” describes a relationship between a vulnerable person and another (usually younger) person who takes advantage of the latter’s vulnerability for financial reasons. Seniors and those who have cognitive issues are particularly vulnerable to predatory spouses who push them into marriage to gain access to assets and finances, or who manipulate them into changing their Will. Our Vancouver estate litigators previously discussed a landmark BC case in which the court found that an elderly woman with dementia lacked the capacity to enter into a secret late-in-life marriage with a younger man, and further, that the woman lacked capacity to change her will to favour the secret spouse.
Isolation from family and friends is a red flag
A major red flag in BC predatory marriage cases is when a new partner or caregiver moves in and begins to isolate a vulnerable person from their family and friends. During the COVID-19 pandemic, BC residents – particularly elderly people and those with compromised health – are isolating at home and avoiding contact with others, including trusted loved ones. That isolation, coupled with the general chaos caused by the pandemic, is creating the perfect set of conditions for predators. In addition to the risk of predatory marriage, there is also the opportunity for predators to convince a vulnerable person to alter their will, change an insurance designation, execute a Power of Attorney, or transfer title to real property or assets.
Legal capacity and predatory marriage during COVID-19
The starting point for understanding the test for capacity is the notion that a marriage is a contract. Similar to entering into any other type of contract, the contracting parties must possess the requisite legal capacity to enter the contract. The key to capacity is that it is task specific. The requirements of legal capacity vary significantly as between different areas of law and must be applied specifically to the particular act or transaction which is in issue. In a leading BC family law case, Wolfman-Stotland v. Stotland, 2011 BCCA 175, leave to appeal ref’d  S.C.C.A. No 242 (S.C.C.) the Court of Appeal set out a hierarchy of levels of capacity as they pertain to marriage, separation and divorce:
- Marriage: The capacity to marry requires “the lowest level of understanding” in the hierarchy of legal capacities. 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.
- Separation: Separation is also a among the simplest acts from a capacity analysis, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live.
- Divorce: While still simple, divorce requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.
By way of contrast, financial matters require a higher level of understanding. For example, the capacity to instruct legal counsel involves the ability to understand financial and legal issues, which puts it significantly higher on the competency hierarchy. It has been said that the highest requisite level of capacity is that to make a will.
Capacity may exist despite incapacity in other legal matters
Capacity to marry or end a marriage may exist despite a person’s incapacity in other legal matters. It should not be presumed that an elderly person – even one who is suffering from cognitive impairment – will necessarily be found to lack capacity to alter their legal status. The Wolfman-Stotland v. Stotland case is a prime example of this.
Mrs. Stotland was in her 90s and lived in a nursing home. She was regularly visited by her husband of many years, who was also in his 90s and lived in a different assisted living facility. In 2003, Mrs. Stotland executed a deed of gift in favour of the husband of her entire undivided one-half interest in their joint property. Mr. Stotland then created a trust of which he was settlor and sole trustee. Under the terms of the trust, the spouses were to be provided with sufficient funds to care for their needs for the remainder of their lives. On the death of the surviving spouse, the residue of the trust was to go to Mr. Stotland’s nephews and Mrs. Stotland’s brother. In 2010, Mrs. Stotland told her husband to stop visiting her and filed a notice of family claim seeking division of family assets. At the request of the husband, a medical examination was performed on the wife, which found that she was suffering mild to moderate cognitive impairment as a result of dementia. There was no mistreatment by the husband to “explain” Mrs. Stotland’s desire to separate from her husband, and Mrs. Stotland was found by the court to be incapable of managing her financial affairs. Nevertheless, the BC Court of Appeal was satisfied that Mrs. Stotland had the capacity to instruct counsel in the financial matters of her divorce. She understood that she wanted her share of the family assets and she had formulated a logically coherent plan by which she would prevent her husband’s nephews from gaining control of what she considered to be her finances.
Bottom line on mental capacity and predatory marriage during COVID-19
Marriage, cohabitation, separation and divorce have implications for a person’s assets and estate and can grant or alter rights to property, spousal support, and estate law claims. The capacity to marry, separate, and divorce is a lower threshold than the capacity to manage one’s own affairs, make a will, or instruct legal counsel – so capacity to marry, separate or divorce may exist despite incapacity in other legal matters. If you have concerns that a family member or friend has been taken advantage of by a financial predator, contact Onyx Law Group’s team of Vancouver family law and estate litigation lawyers for a 30-minute free consultation.