A review of the case

By Judith Milliken, QC and R. Trevor Todd

This case reviews the hierarchy of levels of capacity required for various legal acts ranging from marriage, to managing one’s affairs, to testamentary capacity. Having reviewed this hierarchy, the court concludes the capacity required to live separate and apart under s. 57 of the Family Relations Act is equivalent to that required to marry – i.e. the lowest level of understanding. Higher up the hierarchy are the capacity to manage one’s affairs and the ability to instruct counsel. Citing caselaw, the court concludes that financial matters require a higher level of understanding than decisions about with whom or where one should live.

In this case, Dr. Sloan, a family physician, had opined a cognitively impaired 92-year-old wife incapable of managing her affairs. With respect to s. 57 of the FRA, she wanted to separate, solely to gain control of her assets to prevent a nephew from inheriting. Given this “coherent plan,” Dr. Sloan opined she had capacity to instruct counsel limited to the financial aspects of divorce. Based largely on this latter finding, the court ruled she must, accordingly, also have the lesser mental capacity required to legally separate. The court, in effect, assumed that one capacity necessarily included the other and mechanically applied this formula to overturn the decision by the chambers judge who had found her incapable of legally separating under s. 57.

The decision is particularly troublesome on the facts. This case involved a 55-year marriage of a childless couple in their nineties. The wife had been in a care facility for years. Her husband regularly visited her. Her only complaint was that he “falls asleep at bingo.” Her sole reason for separating was her mistaken belief that otherwise her husband’s “sneaky” nephew would inherit everything. Although she knew that divorce was “when you legally end a
marriage” she was seeking a s. 57 order based entirely on her mistaken belief of who would inherit her estate.

Dr. Sloan found the wife was suffering from dementia. Her cognitive evaluation was 16/30 and she showed several important deficiencies in her mental function. Her short-term recall was poor or absent, her conversation often tangential and sometimes her answers had no relationship to the question posed. Dr. Sloan found she had impaired understanding of the personal aspects of her marriage and limited understanding of the financial aspects of divorce. In finding lack of capacity, the trial judge also noted her answers on cross- examination were often disjointed and unresponsive and she could not identify the nature of an affidavit.

This appeal decision unfortunately seems to fly in the face of common sense. Legislative guidance is needed soon to clarify the relevant criteria for capacity under s. 57 just as was done recently for finding capacity to grant an enduring power of attorney. We trust this decision may prompt the legislature to follow suit in the case of legal separations, thus reducing the opportunity for background manipulation and abuse of seniors by would-be heirs. 

Judith Milliken and Trevor Todd are senior B.C. wills and estate litigation lawyers.

This article was published in the February 2012 issue of BarTalk. © 2012 The Canadian Bar Association. All rights reserved.