Aging population gives rise to ‘predator spouses’
The Real Housewives of Vancouver is one thing, but predator spouses?
Trevor Todd, a Vancouver lawyer who specializes in wills, estates and inheritance, says the phenomenon is disturbing and increasingly common as people live longer and accumulate more wealth.
“In simple terms, predatory spouses take advantage of elderly victims and assume control of their financial affairs and often culminate in a secret marriage,” he explained, pointing to two cases in Ontario and a B.C. decision.
“The consequences for the victim and their immediate family are traumatic and significant.”
Forget love and commitment, predatory marriage refers to a bond entered into for exploitation, personal gain and profit, Todd said. The relationship typically begins when an unscrupulous caregiver marries an elderly, dependent individual suffering from significant cognitive impairment.
The ceremony is usually secret, he said, and afterwards the victim is closeted away from loved ones as the predator takes control of their financial affairs.
However, the biggest legal problem, Todd said, has been cutting that marital knot because the courts have always believed any idiot had the right to be married.
Ironically, perhaps, he quipped, that might explain why a significant number of lawyers have full-time work trying to extricate people from that supposedly simple contract.
Believe it or not, courts have regularly cited an 1885 case known as Durham v. Durham for the proposition “the contract of marriage is a simple one, which does not require a high degree of intelligence to comprehend.”
Only recently, Todd said, have courts begun to change and the law is in flux — though the mental capacity considered required to marry remains low. Meanwhile, the capacity to instruct a lawyer is held to be significantly higher and the highest level is that required to make a will.
A lack of capacity will render a marriage void but the law presumes an adult has that capacity and proving someone didn’t is tough after the fact.
In Ontario, Todd said, an important decision was a 2012 ruling by the province’s Superior Court that declared null a marriage involving an 89-year-old mentally incompetent man.
Of note, he said, was the court set aside a transfer of property to the predator’s son on the basis of the doctrines of undue influence and unconscionability, legal tools that could help combat these abuses.
The predator spouse in that case was a 65-year-old widow who had been married as many as eight times and had a history of caring for older men with the expectation of receiving an inheritance.
A second Ontario case last year involved a 50-year-old man who had been in a coma for 18 days and hospitalized for four months with a serious head injury, Todd said.
Three days after leaving hospital he was spirited away by a former girlfriend for a secret wedding that gave her legal rights to his landscaping business, home and expected $1-million personal-injury settlement.
The man’s concerned children contacted police, who found him in a motel just hours after the wedding.
Before the head injury he had an on-again, off-again relationship with the woman, but evidence was conclusive that the man was intellectually devastated with serious cognitive issues. The marriage was declared void and the woman ordered to have no further contact with him.
In B.C., Todd said, a recent case involved a Coquitlam woman who suffered from Alzheimer’s and in 2010 was declared incapable of managing her financial and legal affairs. She moved into a care facility in September 2010, where she remained until her death in late 2013 at age 74.
The woman had “married” in June 2010 but she and her “husband” never lived together either before or after that date.
One witness testified the woman did not know where she was married, who married her or even why she got married. Others testified that after her first marriage ended, she all but vowed not to marry again.
Once again, Todd said, the marriage was in secret and there were no friends or family at the wedding service and the single photograph captured the woman’s vacant expression.
She was very close to her family and friends but never expressed to one she was in love with her “husband,” that she knew anything about him or that they had any kind of future together.
Her psychiatrist testified she was moderately to severely demented.
The court declared the marriage void and also set aside two wills.
Todd fears a rapidly aging population with significant wealth can only lead to a rise in such predatory marriages.
“To some extent I believe it is a situation where the courts need to be more cognizant of the significant number of predators in our society who prey upon the infirm and vulnerable,” he said.
“The concept that only a low level of mental capacity is required to enter into a marriage is an anachronism that needs to be corrected, given the complexity of current family law, particularly as it relates to property entitlement to the assets of one spouse.” imulgrew@postmedia.com Twitter.com/ianmulgrew
The consequences for the victim and their immediate family are traumatic and significant.