As Canada’s baby boomers age, their health declines and legal issues can increase. Many of those issues involve questions of ‘capacity’ — often, whether an individual has or had the capacity to make certain financial decisions.
But capacity can also be a problem when couples separate. Because spouses can make property and support claims against the other spouse once there has been a separation, there can be a question whether a spouse had the ability to decide to separate, reconcile or divorce.
Justice Frances Kiteley recently dealt with the mental capacity to reconcile in the 2018 decision of Chuvalo v. Chuvalo, a sad case between the famous boxer, George Chuvalo, and his family.
In 2015, George Chuvalo started a divorce proceeding against his wife, Joanne. During the proceeding, Joanne Chuvalo told the court that she and George wanted to reconcile.
The Divorce Act requires both lawyers as well as the court to raise the possibility of reconciliation prior to proceeding with a divorce. In the ordinary course, if the parties say they want to try to reconcile, the court will usually adjourn the divorce proceeding to allow the parties time to make that decision.
No ordinary case
But Chuvalo was no ordinary case. George Chuvalo’s children and his wife were at odds and Justice Kiteley had to decide whether Mr. Chuvalo had the capacity to reconcile with his wife.
Each side’s medical expert agreed that he did not have the mental ability to instruct counsel, but they differed on whether he had the ability to reconcile.
While there have been cases setting out what is required to have the mental capacity to separate, divorce and marry, no earlier Canadian cases addressed the capacity to reconcile.
In the 1997 case of Calvert v. Calvert, Justice Mary-Lou Benotto, then of the Superior Court of Justice in Ontario, set out the framework for the mental capacity to separate and divorce, confirming that a “person can be capable of making a basic decision and not capable of making a complex decision…. 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….
“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. …There is a distinction between … 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.”
In Chuvalo, Justice Kiteley found that there was good evidence from various witnesses, including a recording of Mr. Chuvalo himself, that he wanted to “live with” his wife. Most assumed that the capacity to reconcile required only the same low threshold as the capacity to separate.
However, Justice Kiteley’s decision suggests that to have the capacity to reconcile is higher, and includes an appreciation of the legal consequences arising from a reconciliation. She specifically referred to two confusing concepts relating to the effect of a reconciliation in Ontario.
Under Ontario’s Family Law Act, a spouse’s property is valued at the date of the parties’ separation. It is that value which is then equalized between the spouses. If the spouses later reconcile and then separate again, the “valuation date” changes. The last separation date becomes the date to which their property is valued. If one of the parties had an asset with fluctuating value (for example, shares in Facebook), the separation date can mean thousands or millions of dollars’ difference to the payment owing to or owed by, the other spouse.
By contrast, under the Divorce Act, a divorce is most often granted on the basis that the parties have been separated for a year. If they reconcile for a period or combined periods of less than 90 days, the original date of separation is the starting point for the calculation of the year’s separation. Only if the reconciliation has lasted for more than 90 days is the year’s separation calculated from the date of the last separation.
Capacity cases are rarely simple. The ability to make certain decisions can change over time, as it did with George Chuvalo. While an earlier medical assessment found that he had the capacity to instruct counsel, separate and proceed with a divorce, another assessment, conducted less than six months later by the same doctor, found that Mr. Chuvalo had neither the capacity to instruct counsel or decide to reconcile.
Cases involving short-term memory issues make capacity cases even more difficult to decide. Justice Kiteley noted that the statement by Mr. Chuvalo that he wanted to “live with” his wife, did not mean that it was a “reliable and durable statement,” particularly when one of the doctors noted that he could not recall having seen his wife a week prior to the medical examination.
Based on the expert evidence, Justice Kiteley found that Mr. Chuvalo did not have the capacity to reconcile with his wife.
This decision, however, did not put an end to the litigation between the parties. At the end of her reasons, Justice Kiteley observed that “the fundamental issue here is the conflict between Joanne Chuvalo on the one hand and George Chuvalo’s children … on the other hand. I have not heard evidence but I have formed an understanding that each is convinced that the other is out to manipulate and control George for personal financial gain. I make no findings. I do observe it is time for those who are or have been close to George and important to his welfare to find a way to collaborate in his best interests.”
Chuvalo vs. Chuvalo reminds us that capacity cases are starkly different from boxing matches. No matter who succeeds in litigation, there is no winner.
Laurie H. Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto.