The landmark decision in Devore-Thompson v. Poulain, 2017 BCSC 1289 represents the first reported case where the Supreme Court of BC declared a marriage void due to lack of capacity. The marriage in that case was found to be what is referred to as a “predatory marriage” – when a man or a woman enters into a relationship with an elderly or otherwise vulnerable individual with cognitive impairments exclusively for the purpose of gaining access to their finances or estate. Given that our aging population is living longer and more independently than they did in the past, it is likely that the phenomenon of predatory marriage in BC will increase. Read on for a discussion of the facts in Devore-Thompson v. Poulain and the court’s analysis of the test for capacity to enter marriage in BC.
Cognitive decline prior to marriage in BC
Donna Walker was born in 1939. She married for the first time in the 1970s. That marriage ended in divorce in the 1980s. Ms. Walker had no children of her own but maintained a close relationship with her niece, Donna Devore-Thompson. After Ms, Walker’s first marriage ended, she always said to those close to her that she did not want to get married again.
In 2005 Ms. Walker was diagnosed with probable Alzheimer’s disease. As time passed, the diagnosis was confirmed. Ms. Walker was fiercely independent and in denial about her illness. To accommodate Ms. Walker’s wishes, Ms. Devore-Thompson increasingly assisted Ms. Walker to live independently until that was no longer possible. Ms. Walker passed away in 2013 at age 74. In the years between the initial diagnosis and her death, Ms. Walker’s cognitive impairment became very evident to family members. Her personal hygiene, grooming, ability to feed herself, mobility, comprehension, and memory declined, while Ms. Walker herself, who had formerly been very neat, seemed unaware.
Predatory marriage in BC
Ms. Walker met Mr. Poulain at a mall in late 2006 when he asked her to lend him $5 and provide him with her contact information so he could find her to pay her back. In early 2007, Ms. Walker’s doctor recommended that she designate a power of attorney for her finances given her marked cognitive impairment, so in February 2007, Ms. Walker made a power of attorney, appointing Ms. Devore-Thompson and one of her long-time friends as her attorneys. At that time, Ms. Walker also made a new will naming four of her relatives as beneficiaries.
Unbeknownst to those closest to Ms. Walker, on July 2, 2009 Mr. Poulain accompanied Ms. Walker to a meeting with a lawyer to prepare a new will, which disinherited Ms. Devore-Thompson and left Ms. Walker’s condo to Mr. Poulain. Ms. Walker and Mr. Poulain married in June 2010 without telling family members. In July 2010 Mr. Poulain took Ms. Walker to a different lawyer to try to get broader access to her bank account. A new power of attorney appointing Mr. Poulain was prepared, purportedly signed September 10, 2010. In that same month, Ms. Walker was moved into a long-term care facility and a certificate of incapability was issued pursuant to the Patients Property Act, R.S.B.C. 1996 c. 349, declaring Ms. Walker incapable of managing her financial and legal affairs because of mental infirmity arising from dementia. The Public Guardian and Trustee was appointed committee of the estate of Ms. Walker on the basis that she was incapable of managing her financial and legal affairs due to mental infirmity arising from dementia of the Alzheimer’s type.
Challenging capacity to enter marriage in BC
Ms. Devore-Thompson commenced legal action challenging the validity of the marriage and the will executed on July 2, 2009 on the grounds that Ms. Walker did not have sufficient capacity to enter into the marriage or execute the will. (See the next post on our blog for discussion of the test for testamentary capacity). The law in BC presumes an adult has capacity unless the contrary is established: see Adult Guardianship Act, R.S.B.C. 1996, c. 6, s. 3. As such, the onus was on Ms. Devore-Thompson to establish that Ms. Walker did not have the capacity to marry. A lack of capacity to marry would render the marriage void ab initio (“as if it had never happened”).
Test for capacity to enter a marriage in BC
The starting point for understanding the test for capacity to enter a marriage in BC 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. That being said, the common law has developed a low threshold of capacity necessary for the formation of a marriage contract. The capacity to marry is a lower threshold than the capacity to manage one’s own affairs, make a will, or instruct counsel. In other words, the capacity to marry in BC requires “the lowest level of understanding” in the hierarchy of legal capacities. The court in Devore-Thompson v. Poulain summarized the hierarchy of legal capacities (at paras. 47 and 48):
- Separation is the simplest act, 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, 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.
- The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend. If marriage is simple, divorce must be equally simple.
- There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will.
In essence then, the capacity to enter marriage in BC 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.
Analysis of capacity on the facts
The plaintiff called friends and family members to describe Ms. Walker’s functioning over the years 2007 to 2010. This evidence was compelling as to Ms. Walker’s decline in her personal appearance, motor function, and reasoning and understanding of things around her. The people who had a long history with Ms. Walker and knew her very well were all consistent in that they described Ms. Walker’s mental abilities declining significantly over the years 2007 to 2010. Ms. Walker did not express to a single witness that she was in love with Mr. Poulain, that she knew anything about him, or thought they had any kind of future together, and that she wanted to get married or spend the rest of her life with him. The court found no evidence that the family or friends were motivated by financial gain nor did the court believe these witnesses to have exaggerated. Expert evidence from Ms. Walker’s treating physician was found to be sound and credible and squared with the observations of Ms. Walker’s friends and family.
Mr. Poulain’s testimony was that he did not notice anything wrong with Ms. Walker and that Ms. Walker did not have any noticeable mental impairment through the years he knew her (which was at odds with the weight of the evidence at trial). Of note was that Mr. Poulain was unable to recall any material details of the wedding under cross-examination. The court also noted that Mr. Poulain always maintained his own basement suite apartment where he kept his furniture and personal items and mailing address. There was no evidence of anyone living in Ms. Walker’s home other than Ms. Walker. The court concluded on the whole of the evidence that Mr. Poulain was not being truthful and he was attempting to deceive the court as to Ms. Walker’s abilities and health. The court rejected Mr. Poulain’s evidence that he and Ms. Walker were in love and rejected the defence submission that he was not a smart man and therefore did not notice her impairments.
The court found that Ms. Walker was incapable of appreciating the special nature of marriage or understanding who Mr. Poulain was to her. She did not have the capacity to marry Mr. Poulain. Their marriage was void ab initio.
Take home point on capacity to enter marriage in BC
The capacity to enter marriage in BC is a lower threshold than the capacity to manage one’s own financial affairs, make a will, or instruct counsel. At its essence, the capacity to enter marriage in BC 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. A lack of capacity to marry will render a marriage void ab initio.