Capacity to Live Separate and Apart In Marriage

                           CAPACITY  TO  LIVE  SEPARATE  AND  APART  IN  MARRIAGE

In April 2011 the B.C. Court of Appeal in Wolfman-Stotland v. Stotland, 2011 BCCA 175, decided the amount of capacity a person needs to form the intention to live separate and apart to support a party’s application for a declaration pursuant to S. 57 of the Family Relations Act, RSBC 1996.

The Court of Appeal reversed the decision of the trial Judge found at 2011 BCSC 499.

  This case reviews the hierarchy of levels of capacity required for various legal acts ranging from marriage, to managing one’s affairs to testamentary capacity.  Having reviewed this hierarchy   the appeals court concludes the capacity required to live separate and apart under s. 57 of the Family Relations Act is equivalent to that required to marry— to that required to marry—i.e. the lowest level of understanding.   Higher up the hierarchy are the capacity to manage one’s affairs and the ability to instruct counsel.   Citing case law, the court concludes that financial matters require a higher level of understanding than decisions about with whom or where one should live.

In this case, Dr. Sloan, a family physician had opined a cognitively impaired 92 year old wife incapable of managing her affairs.  With respect to s. 57 of the FRA, she wanted to separate, solely to gain control of her assets to prevent a nephew from inheriting.  Given this “coherent plan” Dr. Sloan opined she had capacity to instruct counsel limited to the financial aspects of divorce.  Based largely this latter finding, the court ruled she must accordingly also have the lesser mental capacity required to legally separate.  The court, in effect, assumed that one capacity necessarily included the other and mechanically applied this formula to overturn the decision by the chambers judge who had found her incapable of legally separating under s. 57.

The decision is particularly troublesome on the facts. This case involved a 55 year marriage of a childless couple in their nineties.   The wife had been in a care facility for years.  Her husband regularly visited her.  Her only complaint was that he “falls asleep at bingo”. Her sole reason for separating was her mistaken belief that otherwise her husband’s “sneaky” nephew would inherit everything.  Although she knew that divorce was “when you legally end a marriage” she was seeking a s. 57 order based entirely on her mistaken belief of who would inherit her estate.

Dr. Sloan found the wife was suffering from dementia. Her cognitive evaluation was 16/30 and she showed several important deficiencies in her mental function. Her short-term recall was poor or absent, her conversation often tangential and sometimes her answers had no relationship to the question posed.  Dr. Sloan found she had impaired understanding of the personal aspects of her marriage and limited understanding of the financial aspects of divorce.  In finding lack of capacity, the trial judge also noted her answers on cross examination were often disjointed and unresponsive and she could not identify the nature of an affidavit.

This appeal decision unfortunately seems to fly in the face of common sense.   Hopefully the legislature will soon pass some guidelines to clarify the relevant criteria for capacity under s. 57 just as they recently did for finding capacity to grant an enduring power of attorney.  We trust this decision may prompt them to follow suit in the case of legal separations, thus reducing the opportunity for background manipulation and abuse of seniors by would be heirs.