The Ontario Court of Appeal recently released a decision in the case of Tanti v. Tanti, 2021 ONCA 71[1], which was an appeal from a decision in large part on the test for capacity to marry. At the heart of the matter was a son who characterized his late father’s marriage to a younger woman as a “predatory marriage”, the court disagreed, and the Court of Appeal of Ontario upheld that decision.
A predatory marriage may be defined as one where one party may be vulnerable to abuse because of diminished capacity, whether due to advanced age or a diagnosis like dementia. If a person does not have the capacity to make the decision to marry, unscrupulous opportunists can prey on them for financial profit.[2] If they marry, the opportunist can profit upon their spouse’s death, often to the exclusion of their spouse’s children or other family members and loved ones. These types of marriages have been a concern for many Elder Law practitioners as clients who suffer from cognitive impairment may be vulnerable to this type of abuse.
Court decisions on predatory marriage cases have been very rare, as historically the level of capacity that the court required, as set out in the Banton[3] case, was quite low. In other words, the bar for incapacity is high and few litigants would have been confident there was sufficient incapacity for their argument to succeed. Justice Mandhane who adjudicated the lower court decision in Tanti[4], made this observation:
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