It is not uncommon for family members to react with surprise and often, hostility and suspicion, when an elderly parent announces a relationship with someone much younger than them.

Predatory marriages are a pressing issue and steps have been taken in Ontario to address them through Bill 245, the Accelerating Access to Justice Act, 2021. However, a distinction must be drawn between the potential social stigma often associated with these situations and the law concerning a person’s capacity to marry.

The recent Ontario Court of Appeal decision, Tanti v. Tanti, 2021 ONCA 717, addressed a case where a son sought guardianship over his elderly father following his marriage to a significantly younger woman. The validity of the marriage was raised as a threshold issue to the application for guardianship.

In determining whether there is capacity to marry, the court must be satisfied that: “the parties understand the nature of the marriage contract and the duties and responsibilities that flow from it.”

At trial, the Court raised concerns that the son was relying on stereotypes to support his claim, and noted that, while there was some evidence that the father’s capacity was declining, he clearly still had the requisite capacity for marriage. The Court also noted that the evidence pointed to a long standing relationship between two mature adults that progressed over the span of five years.

The son’s suspicions notwithstanding, both the trial judge and the Court of Appeal held that the marriage was valid, with the trial judge explicitly noting it failed to meet the criteria of a predatory marriage.

Such litigation can have a heavy toll on families. In the case discussed above, the father and his relationship were subject to extensive litigation, and yet the courts were conclusive in finding that the marriage was valid.

In approaching a challenge to the validity of a marriage, caution may be warranted in assessing the weight and credibility of the evidence available,  before launching litigation that may be costly, both financially and emotionally.

When parties are invested personally, as they often are in such cases, assessing the line between a lack of capacity, or a perceived ‘bad’ decision, can be difficult to discern, but a question worth turning one’s mind to.

Thank you for reading and have a great day!

Ian Hull and Raphael Leitz