Ontario Superior Court Rules on the Capacity to Marry


13 March 2018

By Emily Amirkhani

In December 2017, the Ontario Superior Court of Justice ruled on Hunt v Worrod, 2017 ONSC 7397 (Hunt), wherein the family of a man suffering from a brain injury sought annulment of what the media called a “predatory marriage.”

Mr. Hunt was injured in an ATV accident, causing serious brain injury and an 18-day coma. In connection to the accident, he stood to receive a settlement totalling over one million dollars. Three days after his return home from hospital, without the knowledge or attendance of his family, Mr. Hunt and his on-again off-again girlfriend, Ms. Worrod, married. His sons, as his court appointed guardians, argued that Mr. Hunt lacked the requisite capacity to marry, and the marriage was therefore void.

The court applied the legal test for capacity to marry set out in Ross-Scott v. Groves Estate, 2014 BCSC 435 at para 177:

A person is capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and duties and responsibilities it creates. The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs. Delusional thinking or reduced cognitive abilities alone may not destroy an individual’s capacity to form an intention to marry as long as the person is capable of managing their own affairs.

The court in Hunt affirmed that it “can only annul a marriage due to absence of consent if an individual does not understand the nature of the marriage contract and the duties flowing from it.” The court also emphasized the importance of balancing the right to personal autonomy in choosing how to live one’s life against the possibility that someone may not be capable of understanding the legal ramifications of marriage.

The court found the evidence showed that, prior to his accident, with full understanding of the legal ramifications of marriage, Mr. Hunt had decided not to marry Ms. Worrod. Further, the court accepted the evidence provided by medical professionals involved in Mr. Hunt’s rehabilitation that he “lacked the ability to understand the responsibilities or consequences arising from a marriage, and that he lacked the ability to manage his own property and personal affairs” at the time of the marriage.

The court concluded that the marriage was void ab initio (“as if it had never happened”) because Mr. Hunt did not understand “the nature of the contract he was entering into and the responsibilities the contract created”.

The common-law test for legal capacity to marry in BC was reviewed in the BC Law Institute’s (BCLI) 2013 Report on Common-Law Tests of Capacity. The report addressed concerns surrounding the current test, including substantial changes in social conditions since the law was formed in the nineteenth and twentieth centuries, and the potential for fraud in predatory marriages. However, the report ultimately recommends the common-law test not be modified or codified by legislation due to concerns that it would create barriers to marriage for people with diminished capacity, or stagnate the BC law while the law in the rest of Canada continues to evolve through adjudication.

More information on the capacity to marry is also available in the CCEL’s previous blog post on the capacity to marry, which features a Q&A with Emily Clough, co-author of the paper “The (Not So) Simple Contract: Mental Capacity & The Act of Marriage”, presented at the Canadian Elder Law Conference in November 2017.


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