“Marriages between the very old and the very young raise eyebrows and turn heads. In popular culture, a ‘May-December’ marriage invariably provokes the ire of adult children who deem the younger spouse a “gold-digger” and plot to protect their inheritance.”
That is how Madam Justice Renu Mandhane began her judgment in Tanti v. Tanti et al 2020 ONSC 8063, a case where Mr. Paul Tanti’s son, Raymond became enraged when his elderly father married a much younger woman and took steps to interfere in their union, actions that culminated in what turned out to be an ex parte order giving Raymond guardianship of his father.
The facts were simple:
Paul was in his late eighties, Sharon’s age was not revealed. The parties met in 2014 when Paul connected with an organization that matched volunteers to do odd jobs for seniors. Sharon came to Paul’s home and did some exterior painting for him. They became friends and in 2017 referred to themselves as “companions”. Sharon was never a caregiver for Paul as she worked throughout their relationship.
In early 2018 Paul asked Sharon to move in with him and she did. Paul’s son Raymond continued to drop in to see his father weekly, bringing groceries and exchanging laundry, but Raymond took an immediate dislike to Sharon and began encouraging his father to end the relationship.
In February 2018 Raymond took his father to see a gerontologist who opined that he had a moderate degree of cognitive impairment. He did not share this diagnosis with Sharon. On Paul’s 89th birthday in January 2019 he asked Sharon to marry him. She was hesitant as she didn’t want to upset Raymond. In June of 2019 Paul again asked her to marry him and she agreed. They had a small wedding with five guests in late July 2019. None of Paul’s family was invited to the wedding.
A few days after the wedding Raymond was informed that Sharon and Paul had been bound in holy matrimony and he exploded, an incident that involved the local constabulary. The following day Paul and Sharon visited a lawyer where Paul granted Sharon his power of attorney.
Two weeks after the wedding Sharon travelled to her home country of Grenada for a 16-day holiday which had been planned well in advance of the wedding. While she was out of the country, Raymond got busy. He took his father for a capacity assessment and obtained a medical opinion that Paul could no longer manage his affairs. No assessment was done of his capacity to marry. The physician noted that father and son were arguing about Sharon during the assessment. The doctor’s notes revealed the following statement from Paul:
“Currently, Mr. Tanti states that Sharon is ‘absolutely out of the picture’ but this is really to appease his family and he would prefer not to lose her as a companion.”
While Sharon was still out of the country, Raymond filed a court action for the following orders:
a) a declaration that Paul is incapable of managing property and personal care;
b) guardianship of Paul’s property and person;
c) custody of Paul;
d) an order permitting him to lease and eventually sell Paul’s home;
e) an order freezing all bank accounts jointly held by Paul and Sharon; and
f) an order suspending the power of attorney granted by Paul to Sharon.
Raymond’s evidence included this statement: “it appears likely that Paul has become subject to manipulation and perhaps loss and misappropriation of funds at the hands of a hired caregiver, Sharon Joseph.”
At the same time, Raymond moved Paul out of his home and into Raymond’s home, while he researched care homes for his father. Meanwhile, Sharon returned from Grenada to find the locks changed on the home and a letter from Raymond’s lawyer that Paul was now living with Raymond. A second doctor’s opinion confirmed the original diagnosis. Neither doctor opined on capacity to marry.
Raymond’s application was heard in September 2019 and due to a mix-up Sharon and her lawyer were not present at the hearing, but the judge decided to make the orders in her absence. She was now faced with filing her own application to overturn the orders made.
Judge Mandhane reviewed the relevant legal principles stating that the burden was on Raymond to prove that his father lacked capacity to marry Sharon in July 2019 and that in the absence of duress or fraud, Sharon’s motivations to marry Paul were irrelevant. Hunt v. Worrad 2017 ONSCC 7397 and Fernandez v. Fernandez 1983 Canlii 3644 Man. QB
The court remarked that the test for capacity to marry was not complex. The parties must understand the nature of the marriage contract, and the duties and responsibilities that flow from it, an understanding that did not require a high degree of intelligence. Simply put, the parties must agree to live together and love one another to the exclusion of all others.
Three doctors testified but none of them had examined Paul in 2019 so their retrospective opinions were not accepted.
Raymond’s suggestion that Sharon was a “gold digger” was soundly rejected by the court, with the court dismissing Raymond’s characterization of her as a caregiver who misappropriated his father’s money. The court was not impressed with Raymond’s attempt to bolster his position by relying on stereotypes about Caribbean immigrant women looking for a free ride.
Judge Mandane declared the marriage valid and awarded full indemnity costs to Sharon of $50,000, far less than her request for $150,000.
But she still had more to say about Raymond’s conduct:
“Despite knowing about the marriage, and while Paul’s wife was out of the county for just over two weeks, Raymond removed Paul from his home, changed the locks on the house and closed the couple’s joint bank account, all without court order. He then proceeded to file an application for guardianship based entirely on the unfounded allegation that Sharon was a hired caregiver, that she had stolen from Paul, and that she had deserted Paul.”
Raymond Tanti’s appeal of the decision was dismissed. (Tanti v. Tanti 2021 ONCA 717)
**This article was first published in LAW360, a publication of LexisNexis Canada.
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