A ‘predator’ is defined as an animal or person that hunts a weaker animal or person. This term has begun to apply to caregivers for vulnerable seniors who exploit their position of trust. A ‘predatory marriage’ refers to a marriage entered into for only a singular purpose – the exploitation of a vulnerable senior for personal gain. The predator often takes advantage of the vulnerable senior and assumes control and management of the senior’s financial affairs. Most of the time, the perpetrator is a caregiver, but sometimes it is another person such as a family friend or neighbour. In all such cases, the perpetrator uses the position of trust to persuade the senior to change his will to benefit the caregiver or to add her to his life insurance policies as the beneficiary or to transfer title of real estate to her or to add the caregiver’s name to bank and investment accounts.
In Ontario, the act of marriage alone grants the new spouse automatic property rights, including ownership and occupation of a matrimonial home, and spousal support. Under Ontario’s Succession Law Reform Act, a marriage revokes a will. These marriages often occur silently and without the knowledge of the senior’s adult children or family.
Due to the increase in seniors residing in retirement homes and assisted living facilities, away from their family, staffed by personal support workers who have direct and close contact with the senior, predatory marriages are on the rise. This fact, coupled with increasing life spans and the growing prevalence of dementia, has created greater opportunity for such exploitation. However, not all marriages are predatory and the onus to prove that a marriage was not legitimate usually falls on the adult children after the death of the senior.
The recent case of Hunt v. Worrod, 2017 ONSC 7397 is a reminder of the prevalence of predatory marriages and the level of diligence required of the adult children and their lawyers to prove that a parent’s marriage was the result of exploitation to be declared void.
In this case, the father, Kim Kevin Hunt, was involved in a serious accident resulting in a catastrophic brain injury. He had two adult sons. Prior to the accident, Hunt was involved in an ‘on again, off again’ relationship with Kathleen Anne Worrod. She had many troubles including financial problems, alcoholism and criminal charges.
Days after Hunt arrived home from the hospital, Worrod’s uncle picked Hunt up on the road outside of his home and drove him to the Bracebridge Courthouse to meet Worrod. This occurred unbeknownst to Hunt’s sons. The sons were worried and searched for their father. Later that day, the sons discovered their father was in a hotel in Collingwood, and that he had just legally married Worrod that afternoon at the Courthouse.
Years later, Justice Koke conducted the trial where he needed to decide if Hunt had the capacity to marry Worrod and, if not, whether the marriage is void. The court reviewed Ontario’s Marriage Act that addressed the mental capacity needed to marry, as well as the test in the case-law for determining whether a person has the capacity to enter into a marriage. The judge noted that the law reflects the tension between preserving personal autonomy and a person’s capacity to marry. The court noted that any person attempting to challenge a marriage bears a heavy burden.
In this case, Hunt’s sons adduced at trial a significant amount of medical evidence dealing with their father’s incapacity from medical experts and lay witnesses. This included Hunt’s psychologist, psychiatrist, speech and language pathologist, physiotherapist and a Capacity Assessment. After all of the evidence was lead, the court found that Hunt suffered significant mental impairment. The consensus of the medical experts and witnesses was that Hunt lacked the ability to understand the responsibilities or consequences arising from a marriage.
In the end, Justice Koke found that Hunt did not have the requisite capacity to marry Worrod. This was a hard fought case. Worrod forcefully argued that the marriage was legitimate and that she acquired all rights of a married spouse including entitlement to Hunt’s assets and income such as the $1-million personal injury settlement that he would recover from the accident.
Predatory marriages are a growing phenomenon. Taking advantage of the elderly and vulnerable is a serious concern of their adult children. The victim is not only the elderly spouse, but his entire family.
Until new legislation is introduced that protects seniors from predatory marriages, cases such as Hunt v. Worrod will be directed to the courts for resolution. Andrea McEwan of Toronto’s Whaley Estate Litigation Partners who represented Hunt’s sons, demonstrates how critical it is to present the evidence of incapacity to marry in a meticulous and detailed manner to void a predatory marriage.
Editorial Note: This article was originally published in 2018. Since then, the concerns it raises about elder financial abuse—particularly through predatory marriages—have only grown more pressing. In Ontario, marriage still revokes a will, leaving vulnerable seniors exposed to exploitation. Until legislative reform addresses this gap, vigilance by families and legal professionals remains essential.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
Share this article on: