Recent case: Capacity to marry

Tanti v Tanti 2021 ONCA 717: This Ontario Court of Appeal decision upheld the decision of the trial court to find a marriage between an elderly man with some dementia to a much younger woman valid.

Paul Tanti and Sharon Joseph got married in 2019, when he was 89 years old. Shortly after the marriage, his son, who had attempted to end his father’s relationship with Sharon many times before they got married, sought a guardianship order over his father. He was successful, a lawyer from the Office of the Public Guardian and Trustee was appointed to represent Paul, and Sharon brought a motion to set aside the guardianship order. In order to resolve that issue, the court had to decide whether the marriage was valid.

Justice Mandhane acknowledged that marriages where there is a significant gap in the ages of the husband and wife “raise eyebrows,” and “invariably provoke the ire of adult children who deem the younger spouse a ‘gold-digger’ and plot to protect their inheritance.”

She also found that:

“The overwhelming evidence is that Paul and Sharon were mature adults in a long-term relationship that unfolded and deepened over the course of five years.”

In finding the marriage valid, Justice Mandhane wrote that the marriage was not a predatory one on the part of Sharon and that the son’s application for guardianship relied on unproven allegations that Sharon was a hired caregiver who had misappropriated his father’s money:

“In casting Sharon in this unfavourable light, [the son] sought to rely on stereotypes about Black and Caribbean immigrant women. . . . [The son] adduced no evidence to support his allegations. Sharon was not paid to care for Paul and never misappropriated his funds, nor did she manipulate or pressure Paul into marrying her.”

“[T]here was simply no cogent evidence to suggest that Paul’s cognitive capacity was so diminished at the time of marriage that he was unable to make decisions regarding his day-to-day affairs or living arrangements.”

Justice Mandhane found that the marriage was valid, and the son appealed. He raised five grounds of appeal, claiming that Justice Mandhane had:

• used the wrong test to determine Paul’s capacity to marry
• relied on her own research
• failed to accept certain expert evidence
• accepted the evidence of a lay witness without permitting meaningful cross-examination
• demonstrated a reasonable apprehension of bias

The Court of Appeal found no error on the part of Justice Mandhane, and upheld her decision that the marriage was valid.