March 16, 2022 – Capacity to Marry

“The Applicant has provided clinical notes and records from CAMH on which she relies to demonstrate her fragile mental state. In paragraph 17 of her affidavit, she said that she was “not in a proper mental state during the entire course of our relationship”.

This issue engages the legal concept of “capacity to marry”. In Calvert v Calvert 1997 CanLII 12096 (ON SC), [1997] 32 O.R. (3d) 281, (Ont. Gen. Div.) (Calvert), the court was focused on the issue of capacity to divorce. In that context, the court referred to Re Park Estate, [1953] 2 All ER. 1411 (Park). In both of those cases, the court also referred to capacity to marry. As those courts indicated, a person’s right of self-determination is an important philosophical and legal principle. Having reached the age of majority, it is presumed that a person has capacity. The contract of marriage has been described as “the essence of simplicity, not requiring a high degree of intelligence to comprehend”: Park at p. 1427. Courts are slow to take away a person’s right to decide, which is reflected in the low threshold the courts have set for the determination of capacity. To adapt the reasoning in Calvert, “the real question is whether Ms. Ives understood what she was doing on December 15, 2018.”

The Respondent and his cousin do not accept that the Applicant lacked capacity to marry.

I agree with the Respondent’s submissions. The fact that the Applicant was under treatment at CAMH that included the medications she has identified does not mean that she lacked capacity to marry. The evidence on this motion includes copies of the letters that the Applicant and her mother wrote, after the marriage, to support the sponsorship application. I will refer to that issue again below. However, for purposes of this ground for the annulment, the letters from the Applicant and her mother indicate that the Applicant was well aware of the proposal to marry, the arrangements for the wedding, and that, at the time of the wedding, she was happy to be married. The objective evidence of the photographs of the wedding and all of the other evidence indicate that the Applicant had capacity to marry.

In this case, the Applicant is challenging her own capacity. The burden is on her to provide sufficient evidence for the court to set aside the presumption of capacity. In the fall of 2018, she was under medical care, including significant medications. But the evidence meets the low threshold of proving capacity, namely that, on December 15, 2018, she understood that she was marrying the Respondent.”

         Ives v. Chubinidze, 2021 ONSC 1953 (CanLII) at 18-22