



COURT OF APPEAL FOR ONTARIO

CITATION: Tanti v. Tanti, 2021 ONCA 717

DATE: 20211014

DOCKET: C69056

Lauwers, Harvison Young and Sossin JJ.A.

BETWEEN

Raymond Tanti

Applicant (Appellant)

and

Paul
    Tanti and the Public Guardian and Trustee

Respondents (Respondents in Appeal)

and

Sharon
    Joseph

Respondent (Respondent in Appeal)

Kevin Scullion, for the appellant, Raymond Tanti

Marek Z. Tufman, Gregory Tufman and Joy Nwawe, for the respondent,
    Sharon Joseph

M. Kathleen Kinch, for the respondent, Paul Tanti

Heard: October 1, 2021 by video conference

On appeal from the judgment of Justice Renu J. Mandhane of
    the Superior Court of Justice, dated December 22, 2020, with reasons reported
    at 2020 ONSC 8063.

REASONS
    FOR DECISION

[1]

This appeal concerns the capacity of a person to enter into a marriage.

[2]

Paul Tanti and Sharon Joseph were married on July 27, 2019.

Overview

[3]

On September 12, 2019, Paul Tantis son, Raymond Tanti, sought a
    guardianship order with respect to his fathers property and person. Harris J. of
    the Superior Court of Justice granted that order on the basis that Paul Tanti was
    incapable of personal care and managing property.

[4]

The Office of the Public Guardian and Trustee appointed counsel for Paul Tanti
    in November 2019. His counsel does not take a position on the validity of the
    marriage.

[5]

Ms. Joseph subsequently brought a motion to set aside the guardianship
    order. On July 31, 2020, Shaw J. ordered that she be added as a party to the guardianship
    proceedings. Shaw J. also ordered the issue of the validity of the marriage of
    Paul Tanti and Ms. Joseph to be determined as a threshold issue in the
    application.

[6]

After a trial on the issue of the marriages validity, Mandhane J.
    determined that the marriage was valid by judgment dated December 22, 2020.

[7]

Subsequently, on May 27, 2021, Trimble J. of the Superior Court granted
    a stay of the guardianship proceedings pending disposition of the appeal of the
    order of Mandhane J. Ms. Joseph attempted to appeal the order of Trimble J. to
    this court (C69521), and brought a motion to expedite that appeal. On July 13,
    2021, Benotto J.A. dismissed the motion, holding that the order of Trimble J.
    was procedural and interlocutory and that no appeal lies to this court. This
    court upheld that decision:
Tanti v. Tanti
, 2021 ONCA 607.

[8]

Here, the only issue before this court is Mandhane J.s decision on the
    validity of the marriage.

[9]

For the reasons that follow, we dismiss the appeal.

The Trial Decision

[10]

The
    trial judge described the issue being tried before her as follows:

[37] Raymonds sole basis for attacking the validity of the marriage
    is his argument that Paul did not have the requisite capacity to marry Sharon
    in July 2019.

[38] In the face of a legal marriage, Raymond has the burden of
    satisfying me that Paul lacked capacity to marry Sharon:
Hunt v. Worrod
,
    2017 ONSC 7397 at para. 13;
Re McElroy
, [1978] 2 O.R. (2d) 381 (Surr.
     Ct. J.). The evidence must be of a sufficiently clear and definite
    character as to constitute more than a mere preponderance as is required in
    ordinary civil cases:
Reynolds v. Reynolds
, 1966 CanLII 687, 58 W.W.R.
    87 at p. 90-91 (B.C.S.C.).

[11]

The
    trial judge instructed herself on the relevant law relating to a persons
    capacity to marry:

[
40
] In determining legal capacity, courts
    are asked to balance individual autonomy against the vulnerability that can
    come with age or disability:
Hunt
at para. 10. The overarching goal is
    to ensure that people retain decisional autonomy in as many domains as
    possible, even if they must be protected from harm in others: Kimberly Whaley
    et al.,
Capacity to Marry,
(Aurora: Cartwright Group, 2010), at
    p. 101. Indeed, people with mild cognitive impairment, dementia or Alzheimers
    disease can be capable decision-makers depending on the situation: Kenneth
    Shulman et al., The Role of the Medical Expert in the Retrospective Assessment
    of Testamentary Capacity (2020) Can J Psychiatry 1.

[
41
] The determination of legal capacity is
    fluid: it is decision, time, and situation specific:
Hunt
, at para. 13.
    Medical-legal capacity is a social construct that requires the trier of fact to
    take into account factors that go beyond simple medical assessments of
    capacity: Whaley, at p.99.

[
42
] The requirements of legal capacity vary
    significantly as between different areas of law and must be applied to the
    specific decision, act or transaction at issue. For example, it is generally
    agreed that the capacity required to marry is lower than the capacity required
    to execute a will or grant a power of attorney for property or personal care: Whaley,
    at pp. 45-46.

[
43
] The test for capacity to marry is a
    simple one. The parties must understand the nature of the marriage contract,
    and the duties and responsibilities that flow from it:
Chertkow v.
    Feinstein
, 1929 CanLII 513 (AB CA), 1929 CarswellAlta 23, 24 Alta LR
    188, at p. 191. Understanding the content of the marriage contract does not
    require a high degree of intelligence; the parties must agree to live together
    and love one another to the exclusion of all others:
Lacey v. Lacey (Public
    Trustee of)
, [1983] B.C.J. No. 1016 (S.C.).

[
44
] The court in
Ross-Scott v. Potvin
,
    2014 BCSC 435 at para. 200 noted that the inability to manage ones financial
    affairs would not necessarily impact a persons ability to consciously
    consider the importance of a marriage contract. Nor do they necessarily impact
    formation of an intention to marry, a decision to marry, or the ability to
    proceed through a marriage ceremony. A person may be capable of marrying
    despite having been declared mentally incompetent or having had a guardian for
    person or property: Whaley, at p. 45.

[
45
] The Court of Appeal for Ontario in
Knox
    v. Burton
(2004), 6 E.T.R. (3d) 285, affd 14 E.T.R. (3d) 27 noted that
    the assessment of capacity must be time specific:
Costantino v. Costantino
,
    2016 ONSC 7279 at para. 53. Expert examinations or assessments that do not
    state when the incapacity occurred, or are not contemporaneous with the giving
    of instructions, may be less probative than the evidence of the individual who
    took the persons instructions at the time:
Palahnuk v. Palahnuk
    Estate
, [2006] O.J. No. 5304 (Ont. S.C.), at para. 4.

[
46
] Finally, capacity is situation specific:
Hunt
, at para. 13. I must assess Pauls specific capacity to
    marry Sharon, which makes the overall context of their relationship relevant.
    [Emphasis added.]

[12]

Based
    on four days of evidence and testimony from eight witnesses applied to the test
    as set out above, the trial judge found Paul Tanti possessed the requisite
    capacity to marry. She found that this marriage was not a rush to the altar
    but rather reflected a long-term relationship between mature adults.

[13]

While
    there was some indication of Paul Tantis cognitive decline prior to the
    marriage, the trial judge found no persuasive evidence that, at the time of the
    marriage, his cognitive status had diminished to the point that he was unable
    to make decisions regarding his day-to-day affairs or living arrangements.

[14]

The
    trial judge further held that whether or not Ms. Joseph stood to benefit
    financially from the marriage was irrelevant to the question of the marriages
    validity in the absence of evidence of duress.

[15]

The
    trial judge rejected or discounted the evidence of several experts given on
    behalf of the appellant but relied on the direct evidence of a lawyer Paul
    Tanti consulted, Desmond Brizan, who testified that Paul Tanti was able to
    provide him with coherent instructions to prepare a power of attorney over
    property at the time of the marriage.

[16]

The
    trial judge concluded, [o]verall, I find that Raymond has not adduced
    sufficient evidence to satisfy me it is more likely than not that Paul lacked
    the capacity required to marry Sharon on July 29, 2019. Paul and Sharons
    marriage is valid.

The Standard of Review

[17]

The
    standard of review for questions of law determined by the trial judge is
    correctness. For intervention on questions of fact or mixed fact and law, it is
    necessary to demonstrate that the trial judge committed a palpable and overriding
    error.

[18]

Further,
    this court should be reluctant to interfere with the exercise of the trial
    judges discretion unless the trial judge has exercised his or her discretion
    arbitrarily, capriciously, or the decision was based upon a wrong or
    inapplicable principle of law:
Kostopoulos v. Jesshope
, 1985 CanLII
    2047 (ON CA), 50 O.R. (2d) 54 (C.A.) at pp. 69-70, leave to appeal refused
    [1985] S.C.C.A. No. 93.

ISSUES

[19]

The
    appellant raises five grounds of appeal:


i.

The trial judge applied the wrong test to determine Paul Tantis
    capacity to marry;


ii.

The trial judge relied on her own research without allowing the parties
    to make submissions on the point;


iii.

The trial judge failed to accept certain expert evidence;


iv.

The trial judge accepted the evidence of a lay witness without
    permitting meaningful cross-examination; and


v.

The trial judge demonstrated a reasonable apprehension of bias necessitating
    a new trial.

[20]

Each
    issue is addressed below.

(i)

The trial judge applied the correct test for the capacity to marry

[21]

We
    are satisfied that the trial judge instructed herself properly on the test for
    the validity of a marriage. She correctly stated that, for a marriage to be
    valid, the parties must understand the nature of the marriage contract and the
    duties and responsibilities that flow from it. She properly emphasized that the
    inquiry into the validity of a marriage is situation specific.

[22]

The
    appellant argues that the degree of capacity needed for a valid marriage
    exceeds that for a power of attorney over personal care and akin to a power of
    attorney over property.

[23]

It
    is not necessary to address the relative degrees of capacity for different  determinations
    in light of the trial judges finding on the evidence that, in this case, Paul
    Tanti possessed the requisite capacity to enter into the marriage; he
    understood the nature of the marriage contract and the duties and
    responsibilities that flowed from it.

[24]

For
    example, the trial judge found, at para. 70, Paul appreciated the consequences
    of the marriage. For example, a few days after the marriage, Paul told Carol
    that he refused to remove Sharon from his home because she was his wife. Paul
    also instructed Mr. Brizan to make changes to his affairs that were consistent
    with Sharon being his life partner.

[25]

Therefore,
    we reject the submission that the trial judge applied the wrong test to the
    validity of the marriage.

(ii)

The trial judge did not err by considering authorities not raised by the
    parties

[26]

In
    his factum, the appellant points to several academic articles and cases cited
    by the trial judge that were not referenced in the factum or oral arguments of
    the parties and argues that he was prejudiced as a result of her reliance on
    these sources. We note that this argument was not pressed in oral argument. In
    any event, we reject this submission.

[27]

It
    is in not inappropriate for a judge to consider relevant authorities regardless
    of whether they were raised by the parties:
Heron Bay Investments Ltd. v. Canada
,
    2010 FCA 203, 405 N.R. 73, at para. 22. Further, there is no indication that
    the trial judge only relied on such sources or failed to consider the
    authorities raised by the parties along with her own research. We see no basis
    to intervene.

(iii)

The trial judge did not err by rejecting the expert evidence

[28]

The
    trial judge provided a cogent explanation for why she was not persuaded by the
    expert evidence. She explained that the expert evidence was not contemporaneous
    with the marriage. On that basis, she rejected one medical expert, Dr. Pallandi,
    whose assessment took place in May 2020.

[29]

While
    accepting the admissibility of the other three other medical experts, the trial
    judge accorded little weight to these reports. She stated, at para. 52, I accept
    Sharons argument that the evidence of Dr. Varga, Dr. Stall, and Dr. Marotta
    cannot be afforded much weight. Foremost, none of the experts provided a
    contemporaneous opinion on Pauls capacity to marry, and their assessments of
    his capacity to manage property are largely irrelevant to my determination.

[30]

The
    trial judge did not exercise her discretion arbitrarily or capriciously, and we
    see no error in principle in her assessment of the admission of and weight to
    be given to the expert evidence.

(iv)

The trial judge did not err in accepting direct evidence of a witness
    absent meaningful cross-examination

[31]

The
    trial judge accepted and placed significant weight on the evidence of Mr.
    Brizan, a lawyer acting for Paul Tanti, who was instructed to prepare a power
    of attorney within four days of the marriage. Mr. Brizan testified that, in his
    view, Paul Tanti understood the implications of a power of attorney over
    property and care.

[32]

The
    trial judge prevented cross-examination of Mr. Brizan only on matters subject
    to solicitor-client privilege. He was otherwise open to cross-examination. We
    see no basis to conclude that the trial judge erred in her treatment of this
    evidence.

(v)

The trial judge was not biased

[33]

The
    appellant raised a number of the trial judges factual and evidentiary findings
    as grounds for a reasonable apprehension of bias. We note that this argument also
    was not pressed in oral submissions.

[34]

We
    find no basis for the submission that the trial judges conduct in making these
    legal and factual determinations could give rise to a reasonable apprehension
    of bias. She simply found no evidence suggesting that Paul Tantis cognition
    was diminished to the extent that he did not have the capacity to marry.

DISPOSITION

[35]

For
    the reasons given, the appeal is dismissed.

[36]

The
    respondent is entitled to costs. The appellant and respondent Ms. Joseph
    have agreed that the quantum of costs to the successful party would be $16,000,
    all inclusive. The Public Guardian and Trustee counsel appointed for the respondent
    Paul Tanti is not seeking costs and none are awarded.

P. Lauwers J.A.

Harvison Young J.A.

Sossin J.A.


