Hunt v. Worrod: Capacity to Marry – Has the test changed?

Arguably, Justice Koke’s decision to set aside the marriage of Kevin Hunt to Kathleen Anne Worrod has changed the test for determining the requisite capacity to marry. Before analyzing the case, let’s take a moment to review the law prior to the Ontario Superior Court decision in Hunt v. Worrod¹

Historically, courts accepted that a person had the capacity to marry if s/he had a minimal understanding of the nature of the “contract of marriage”.² This was a much lower threshold than testamentary capacity.³

Lindsay Ann Histrop, in her article, “The Myth of a Hierarchy of Decisional Capacity: A Medico-Legal Perspective” explains:

Despite the traditional view, an alternative perspective on capacity to marry became increasingly prevalent, as demonstrated in cases such as Browning v. Reane⁴ and Spier v. Spier.⁵ The court in Browning stated that, for a person to be capable of marriage, he/she must be capable of managing his or her person and property. Similarly, in Spier, the court indicated that one must be capable of managing his/her property in order to be capable of marrying.⁶ These cases demonstrate a clear tension between the traditional view of marriage as an easily understandable contract, as opposed to the reality represented by the serious implications of marriage for the estate, including revocation of previous wills.^{7, 8}

This tension of tying the capacity to marry to the capacity to manage property was dealt with in the seminal case of Banton v. Banton⁹. Justice Cullity stated:

111      It is well established that an individual will not have capacity to marry unless he or she is capable of understanding the nature of the relationship and the obligations and responsibilities it involves……

114     In the Canadian cases to which I have been referred, no other requirement for mental capacity has been considered: Milson v. Hough, [1951] O.W.N. 450 (Ont. H.C.); Capon v. McLay, [1965] 2 O.R. 83 (Ont. C.A.); McElroy, Re (1979), 22 O.R. (2d) 381 (Ont. Surr. Ct.). An additional requirement is, however, recognized in the English authorities that have been cited with approval in our courts. The decision to which its source is attributed is that of Sir John Nicholl in Browning v. Reane (1812), 161 E.R. 1080 (Eng. Ecc.) where it was stated:

If the capacity be such … that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecility, to take care of his or her own person and property, such an individual cannot dispose of his or her person and property by the matrimonial contract, any more than by any other contract. at pp. 70-1.

Justice Cullity understood that Browning v. Reane stood for the proposition that in order for a person to be incapable of marriage s/he had to both be unable to understand the nature of the contract and be incapable of managing his/her property and person. If a person was only incapable of managing his/her property then s/he could still have the capacity to marry. Justice Cullity wrote:

119     …… I am not able to accept that a finding of incapacity to manage property for the purposes of the Substitute Decisions Act is sufficient to establish incapacity to marry in this jurisdiction. I prefer the original statement of the principle in Browning v. Reane.

125     While I believe that it may well be the case that a person who is incapable both with respect to personal care and with respect to property may be incapable of contracting marriage, I do not believe that incapacity of the latter kind should, by itself, have this effect. Marriage does, of course, have an effect on property rights and obligations, but to treat the ability to manage property as essential to the relationship would, I believe, be to attribute inordinate weight to the proprietary aspects of marriage and would be unfortunate. Elderly married couples whose property is administered for them under a continuing power of attorney, or by a statutory guardian, may continue to live comfortably together. They may have capacity to make wills and give powers of attorney. I see no reason why this state of affairs should be confined to those who married before incapacity to manage property supervened.

Since the Banton decision, there were some authors and academics who bemoaned the low threshold for marriage. They pointed out that:

• A person who does not have the capacity to revoke a will has, by getting married, revoked a will.
• A person who does not have the capacity to make a will can, by getting married, effectively include someone as a beneficiary to their bounty because under an intestacy a married spouse is entitled to a preferential share of the estate (the first $350,000) and a portion of the distributive share.¹⁰
• Moreover, under the Family Law Act that same person who cannot make a will shall, by virtue of a marriage, entitle their new spouse who is unhappy with their inheritance a right to elect to take an equalization of net family property. The entitlement to property rights that flow from marriage starkly contradicts the rights flowing from a common law relationship. Common law spouses only have claims to support.¹¹
• There are substantive tax advantages and disadvantages to being legally married as well. People who are incapable of making decisions arguably ought not to decide by default which path to follow. ¹²

The concerns set out above are legitimate. So much so that some of these concerns have actually been legislatively addressed through changes to the Succession Law Reform Act (“SLRA”). In particular, as of January 1 , 2022, marriage no longer revokes a will in Ontario. Any marriages that take place before that date, however, are still subject to the prior regime wherein marriage revokes any previous will absent a declaration in the will that it is made in contemplation of marriage.¹³ This legislative shift is seen as a welcome change by many estates scholars and lawyers, but it is by no means a comprehensive solution to all of the above issues. Marriage still carries with it substantial implications with respect to one’s property and finances.

Section 6 of the Substitute Decisions Act (the “SDA”) states, “A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” The SDA’s purpose, in part, is set out where the SDA addresses the duties of a guardian of property. Section 32(1) states, “A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.”

Arguably, marriage by people incapable of making decisions about their property thwarts efforts to protect the incapable person’s benefit and is an inadvertent end run around the legislative protection.

So now we have set the stage for Hunt v. Worrod.

Kevin Hunt and Kathleen Anne Worrod were romantically involved. The court described their relationship as off and on. Kevin suffered a catastrophic brain injury and his two sons were responsible for his care. Sometime after the brain injury, Kevin evaded the watchful eyes of his sons and married Kathleen. Kevin’s sons commenced an application seeking a declaration that the marriage was void ab initio.

The judge stated:

“The test for capacity, as set out in Ross-Scott v. Groves Estate, supra requires that persons entering into a marriage contract understand the duties and responsibilities which a marriage creates and have the ability to manage themselves and their affairs…..¹⁴ For the above reasons, I find that Mr. Hunt did not have the requisite capacity to marry Ms. Worrod on October 24, 2011. He did not meet the test set out in Ross-Scott v. Groves Estate, namely that he understood the nature of the contract he was entering into and the responsibilities the contract created. At the time, and up to the present, he remains incapable of managing his own affairs. In the circumstances, I am declaring that the marriage is void ab initio.¹⁵

Justice Koke’s test for capacity to marry was an understanding of the duties and responsibilities which a marriage creates and having the ability to manage themselves and their affairs. This is very different then the test Justice Cullity applied in Banton. Tying capacity to marry to the ability to manage property is a decision that many might applaud,¹⁶ but it requires some reflection. Do we really want to prevent people who are incapable of managing property from being able to get married? This question was raised by Justice Cullity in Banton cited above.

Theoretically, there are many conditions that might impact the ability to manage one’s property without necessarily impairing someone’s ability to understand a contract of marriage. These would include neurodevelopmental disorders like Mild Intellectual Disability (what used to be called Mental Retardation), Autism Spectrum Disorders and even Specific Learning Disorders. There are also specific acquired disorders like Major Neurocognitive Disorders (used to be called dementia), like Alzheimer’s Disease, vascular dementia, and traumatic brain injury. Finally, severe psychotic disorders like schizophrenia could also affect one type of capacity and not necessarily the other.

The bottom line with all these disorders is that the diagnosis alone is meaningless (unless it was a severe/profound intellectual disability or dementia), and you still need to apply some type of specific test to determine capacity. Arguably, unlike testamentary capacity, the test is still very unclear when it comes to capacity for marriage.

Given the property rights that flow from marriage there is a compelling logic to the argument that people who cannot make decisions about property should not be permitted to marry. However, there is an equally compelling argument that marriage is more than just about property. As stated by the Court of Appeal for Ontario:

Marriage is, without dispute, one of the most significant forms of personal relationships. For centuries, marriage has been a basic element of social organization in societies around the world. Through the institution of marriage, individuals can publicly express their love and commitment to each other. Through this institution, society publicly recognize expressions of love [page168] and commitment between individuals, granting them respect and legitimacy as a couple. This public recognition and sanction of marital relationships reflect society’s approbation of the personal hopes, desires and aspirations that underlie loving, committed conjugal relationships. This can only enhance an individual’s sense of self-worth and dignity.¹⁷

Do we really want to deny two people who want to marry the solemnization of their relationship by the State, Church or Synagogue? Is the denial of the right to be married a violation of these people’s rights under the Canadian Charter of Rights and Freedoms?¹⁸

Perhaps the solution to the compelling arguments on both sides of this issue must ultimately be left up to the legislature.

While we appreciate that some might argue that the proposal that follows will be difficult to implement, we believe it makes sense for there to be three categories of marriage. Property Marriage, Non-Property Marriage and Common Law Marriage. To qualify for Property Marriage one would need to have the capacity to manage property, make a will, and – if the marriage occurred before January 1, 2022 – revoke a will. For Non-Property Marriage one would need to be capable of understanding the nature of the relationship and the obligations and responsibilities it involves. However, none of the property rights that flow from the Family Law Act, Succession Law Reform Act or Income Tax Act would apply. Spouses in Non-Property Marriage would have the same property rights that flow from Common Law Marriage. Nonetheless, through Non-Property Marriage, society would publicly recognizes expressions of love and commitment between individuals, granting them respect and legitimacy as a couple.