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w w w . c a n a d i a n l a w y e r m a g . c o m N O V E M B E R / D E C E M B E R 2 0 1 8 47 says she's unsure if they have been more prevalent in the last few years. What has changed, she says, is the level of awareness among the public. "I think there's more attention being drawn to it and certainly more instances where it is being litigated," Wozniak says. "It's heartbreak- ing seeing what families have to go through." And with the baby boomer generation fast approaching retirement and later life, lawyers say the volume of cases is only likely to rise as the largest generational transfer of wealth in history takes place over the next couple of decades. "Our aging population, combined with the ability to keep people at home longer, even if they're suffering from cognitive or physical impairments, means there are more situational risks compared with 20 years ago," Wozniak says. For Hunt, the whole experience delivered a harsh lesson on how easy it is for vulnerable people to enter a marriage. "I never even thought about that possibility," he says. "My dad was probably still wearing his hospital bracelet when he was married. You would think there would be some pretty specific questions involved, but I guess they kept it pretty simple." In Ontario, the statutory bar is almost non-existent, with s. 7 of the province's Marriage Act preventing officiants from proceed- ing only if they suspect one of the parties is under the influence of "intoxicating liquor or drugs." Under the common law, a person must have capacity to marry. But Emily Clough, a partner in the estates and trusts practice group at Vancouver firm Clark Wilson LLP, says the prevailing "test," which has its roots in the 1885 U.K. decision in Durham v. Durham, is hopelessly out of date. In that case, the judge described the contract of marriage as "a very simple one, which does not require a high degree of intelligence to comprehend." "I'm not sure that description is actually reflective any more when you think about all the significant and immediate repercus- sions marriage has on estate planning, income tax and family law rights," Clough says. "The law is facilitating predatory marriage at this point," adds Wozniak, who notes that many of her clients have previously shied away from challenging a suspicious union based on capac- ity because of the slim chances of success under the existing law. Still, she says, she sees "light at the end of the tunnel" in the form of several recent decisions that indicate courts are slowly adapting their view. Wozniak says Koke's decision in Hunt is one of the first in Canada to endorse an elevated test for capacity for marriage that requires both parties to understand the duties and responsibilities created by a marriage contract and considers individuals' ability to manage themselves and their affairs. Relying on extensive medical evidence, the judge found that Kevin Hunt "did not have the requisite capacity to marry Ms. Worrod" on the date of their nuptials. "At the time, and up to the present, he remains incapable of managing his own affairs. In the circumstances, I am declaring that the marriage is void ab initio," Koke added. "I'm hoping it's a turning point," Wozniak says. And in B.C., Clough recent- ly convinced B.C. Supreme Court Justice Susan Griffin to declare the 2010 marriage of Alzheimer's sufferer Donna Walker to Floyd Poulain inval- id, several years after Walker's death in 2013. According to the decision in Devore-Thompson v. Pou- lain, Poulain, a crane operator who was younger than Walker, entered the woman's life a year after her diagnosis. Clough acted for Walker's niece, who challenged both the marriage and two wills made by Walker in her later years. Although the marriage occurred several months before Walker was declared incapable by a judge of managing her financial and legal affairs, Griffin concluded that there was enough evidence about her disordered thinking to find that she did not have the capacity to enter the marriage and declared it void ab "Our aging population, combined with the ability to keep people at home longer, even if they're suffering from cognitive or physical impairments, means there are more situational risks compared with 20 years ago." Dagmara Wozniak, Siskinds LLP L E G A L R E P O R T What do your clients need? The means to move on. Guaranteed ™ . Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES READERS ' CHOICE 2018-19 STRUCTURED SETTLEMENTS ntitled-4 1 2018-10-25 5:57 PM