Capacity

Denzil Lush, Master of the Court of Protection, summarises a recent Canadian decision on the mental capacity required to separate, divorce, and instruct a solicitor.

Calvert (Litigation Guardian) v Calvert (1997) 32 OR (36) 281

On 21 June 1979 Marie Louise Catterson, a divorcee who managed a women's clothes shop, married Ashton Calvert, a widower who owned a farm in Ontario. They signed a marriage contract which said that any property owned by one of the parties at the date of the agreement would not be a family asset.

Each of them had a grown-up child from their previous marriages: Mrs Calvert, a daughter, Laura, who lived in Calgary; Mr Calvert, a son, Richard, whom he had brought up single-handedly after the death of his first wife.

Nine years later, in 1988, Mr Calvert sold the farm for $37.5 million. Notwithstanding his enormous wealth (he earned $2500 a day in interest alone), he paid his wife a very frugal allowance (about $16 a day), and begrudged the small gifts of $50 or $100 dollars she sent her daughter and grandchildren on their birthdays or at Christmas.

In 1993 Mrs Calvert began to present the early signs of Alzheimer's Disease. On 17 February 1994 she visited Laura in Calgary. She made the arrangements for the journey herself and travelled unaccompanied. She never returned to her husband.

When she arrived at Calgary she announced that she wanted to get divorced. On 25 February she met an experienced family law practitioner, who testified that she clearly understood the purpose of the meeting and that it was clear and unequivocal that she wanted a divorce.

In August she met another lawyer in order to put in place proceedings for the appointment of a trustee and guardian to handle her affairs. He testified that he had no doubt that she had the capacity to give instructions to commence divorce proceedings. In fact, he thought that she had testamentary capacity, and would have been unaware that she was suffering from mild dementia, had he not received prior information about her condition.

In January 1995 a litigation guardian (equivalent to our 'next friend') was appointed and the petition for divorce was issued. Mr Calvert contended that his wife did not have the mental capacity to form the intention to separate from him and thus was not entitled to an equalisation payment. And, even if she did have the capacity, he contended, she had given up her right to an equalisation payment when she signed the marriage contract.

Benotto J. of the Ontario Court (General Division) tried the case and delivered judgement on 12 February 1997.

He held that Mrs Calvert clearly had the mental capacity to separate and divorce and that the petition should be granted. The question of capacity is considered in depth from pages 293f to 294g, and on page 298e-g of the report.

A person's right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr Molloy, the director of the Geriatric Research Group and Memory Centre and associate professor of geriatrics at McMaster University, said:

Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities and assessments.

The courts have recognised these varying levels of capacity. Birkett LJ said there "can be no doubt there are degrees of capacity": Park v Park [1953] 2 All ER 1411 at p. 1434, [1954] P 112(CA).

There are three levels of capacity that are relevant to this action: capacity to separate, capacity to divorce and capacity to instruct counsel in connection with the divorce.

Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one's spouse. It is the undoing of the contract of marriage.

The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427. If marriage is simple, divorce must be equally simple. The American courts have recognised that the mental capacity required for divorce is the same as required for entering into marriage: Re Kutchins, 136 A.3d 45 (111., 1985).

There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will. Park, supra, at p.1426.... While Mrs Calvert may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce.

The courts are slow to take away a person's right to decide. This is reflected in the low thresholds the courts have set for the determination of capacity. Persons have been held to have capacity who suffer from schizophrenia (Lovell v Lovell (1941), 58 TWN 93); delusions (Kaczmarz v Kaczmarz, [1967] 1 All ER 416, [1967] 1 WLR 317); and other serious mental problems (Re Olenchuk Estate, [1991] OJ No. 1224 (Gen.Div.)). A person who suffers from cognitive impairment is competent as long as the act in question takes place during a lucid interval: Banks v Goodfellow (1870) LR 5 QB 549....

I found the evidence of Dr Molloy very helpful. Although he, like Drs. Silberfeld and Freedman (the husband's medical experts), did not see Mrs Calvert, he provided a useful analysis of the evidence and methodology for determining capacity.

To be competent to make a decision, a person must:

understand the context of the decision;

know his or her specific choices; and

appreciate the consequences of these choices.

As stated above, the threshold of understanding with respect to separation and divorce is low. Dr Molloy said that great weight must be placed on the persons who saw her at the time of the separation. On this basis, Mrs Calvert clearly had the capacity to separate and divorce.

Incidentally, the judge was highly critical of the lack of sensitivity with which Mr Calvert and his son handled the day-to-day problems of someone trying to come to terms with the onset of Alzheimer's disease. For example, at p. 289c-g, he stated:

"it is clear that, throughout 1993 and up until she left Ontario on February 17, 1994, Mrs Calvert was exhibiting the early signs of her disease. I believe that Mr Calvert and Richard, while thinking that they were being caring and concerned for her, actually made it very difficult for her. The manner in which they described her conduct lacked empathy. They viewed her objectively, as someone doing silly, stupid or bizarre things. They lacked the insight or sensitivity to view her as someone with a disability beyond her control who needed tenderness and help. They both described how she would ask repeatedly what she could serve them. She was obviously trying to please. They would tell her what they wanted, she would get confused, give them something else and she would be told that she got it wrong. I have no doubt that she must have been overcome with a sense of failure. Neither Mr Calvert nor Richard talked about her from her perspective. They demonstrated no insight into the frustration and fear that she must have been experiencing as her cognitive abilities began to slip. She used to be an excellent euchre player but then 'she couldn't keep the cards straight', Mr Calvert said without a hint of compassion. When she was elated at being told by one of the doctors that she did not have Alzheimer's, Richard told her she was 'not out of the woods yet'."

As far as the equalisation payment is concerned, very little of the property owned by Mr Calvert at the time of the marriage was still owned by him at the date of separation. The marriage contract did not deal with after-acquired property or assets to which existing property could be traced. In order for a marriage contract to oust the entitlement of spouses to equalisation, it must deal specifically or by necessary implication with the relative economic position of the parties on the dissolution of their marriage, through the distribution of assets between them on the basis of ownership or otherwise. An agreement as to ownership of property, without more, is insufficient. The contract did not deal with the division of assets on marriage breakdown at all.

It contained no release of property clause. The contract did not, therefore, preclude Mrs Calvert from claiming an equalisation payment. It came to just under $6,500,000.

Denzil Lush, Master of the Court of Protection