COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Wolfman-Stotland v. Stotland,

 

2011 BCCA 175

Date: 20110408

Docket: CA038788

Between:

Lillian Wolfman-Stotland

Appellant

(Plaintiff)

And

Hyman Stotland

Respondent

(Defendant)

 

Before:

The Honourable Mr. Justice Hall

The Honourable Madam Justice Kirkpatrick

The Honourable Madam Justice D. Smith

On appeal from the Supreme Court of British Columbia, February 8, 2011, (Wolfman-Stotland v. Stotland, Vancouver Registry No. E102660)

Counsel for the Appellant:

Z. Jimale

Counsel for the Respondent:

D. Marzban, Q.C.

 J. Wood

Place and Date of Hearing:

Vancouver, British Columbia

April 4, 2011

Place and Date of Judgment:

Vancouver, British Columbia

April 8, 2011

 

Written Reasons by:

The Honourable Madam Justice Kirkpatrick

Concurred in by:

The Honourable Mr. Justice Hall

The Honourable Madam Justice D. Smith

 

Reasons for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]             The issue in this appeal concerns the capacity necessary 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, R.S.B.C. 1996, c. 128.

[2]             Section 57 reads:

57        On application by 2 spouses married to each other or by one of the spouses, the Supreme Court may make a declaratory judgment that the spouses have no reasonable prospect of reconciliation with each other.

[3]             As this Court recently observed in A.B. v. C.D., 2009 BCCA 200 at para. 4, 94 B.C.L.R. (4th) 38:

[4]        A declaration pursuant to s. 57 is a “triggering event” under the FRA that crystallizes the rights of both spouses to an undivided half interest in the family assets as tenants-in-common.  Upon the happening of the triggering event, the court has the jurisdiction to make a determination and division of the family assets pursuant to Parts 5 and 6 of the FRA.

[4]             The appellant, Lillian Wolfman-Stotland (“Mrs. Stotland”), and the respondent, Hyman Stotland, were married in May 1954.  They have no children.  During their marriage, Mr. Stotland handled the family’s finances.

[5]             Mrs. Stotland is 92 years of age.  She has lived at the Louis Brier Home and Hospital since 2001 when her health deteriorated.  In about 2007, Mr. Stotland, who is 93 years of age, moved into the Weinberg residence, an assisted living facility in the Louis Brier complex.

[6]             In January 2003, Mrs. Stotland executed a deed of gift in favour of her husband of her entire undivided one-half interest in their joint property, made up of investments but no real property.

[7]             On the same day, Mr. Stotland created a trust of which he was the settlor and sole trustee.  The assets gifted to Mr. Stotland formed part of the property settled on the trust.  About four months later, Mr. Stotland collapsed the trust and created a new trust of which he was the settlor and sole trustee (the “trust”).

[8]             Under the terms of the trust, the parties are provided with sufficient funds to care for their needs for the remainder of their lives.  On the death of the survivor of them, after the payment of certain cash gifts, the residue of the trust is to be divided into three shares:  one share absolutely to Mr. Stotland’s nephew, Gerald Stotland (“Gerald”), and if he is not alive, to Gerald’s surviving children; one share absolutely to Mr. Stotland’s nephew, Norman Stotland (“Norman”), and if he is not alive, to Norman’s surviving children; and one share to Mrs. Stotland’s brother, Wilfred Wolfman (“Wilfred”), to be held in trust, and during Wilfred’s lifetime to pay him $25,000 annually from the income arising from Gerald’s share.  If the income from Gerald’s share is less than $25,000, the trustee is empowered to encroach on the capital of Wilfred’s share to make up the difference.  On Wilfred’s death, the remainder of his share is divided equally and added to the shares of Gerald and Norman.

[9]             Although it is not in issue before us, it seems incongruent that under the terms of the trust, Gerald is given a share for his own use absolutely, the interest of which is then available to be encroached upon by the life interest granted to Wilfred which is to be paid from interest generated by Gerald’s share.

[10]         In any event, until June 2010, Mr. Stotland regularly visited Mrs. Stotland.  Sometime in the summer of 2010, Mrs. Stotland asked her husband to no longer visit her.  On 13 August 2010, Mrs. Stotland filed, through counsel, a notice of family claim which was served on Mr. Stotland on 17 August 2010.  He filed, through counsel, a response on 13 September 2010.

[11]         On 26 October 2010, counsel on behalf of Mrs. Stotland filed a notice of application for a s. 57 declaration that there was no reasonable prospect of reconciliation with each other.

[12]         Mrs. Stotland was cross-examined on her affidavits filed in support of her s. 57 application on 25 November 2010.  On 1 December 2010, Mr. Stotland applied for a medical examination of Mrs. Stotland, which was granted two days later by Madam Justice L. Smith.  The order adjourned the s. 57 application and directed that Mrs. Stotland submit to an examination by a qualified medical practitioner to determine:

(a)      her capacity to instruct counsel and manage her affairs;

(b)      her capacity to form the intention to live separate and apart from Mr. Stotland; and

(c)      her capacity to appreciate the nature and consequences of abandoning the marital relationship.

[13]         Counsel for the parties jointly retained Dr. John Sloan to perform the medical examination.  Dr. Sloan is a family physician who consults in geriatric care, including the evaluation of capacity.  Counsel provided to Dr. Sloan a detailed letter setting out the particulars of the parties’ marriage and financial situation.  Dr. Sloan was advised that the Court required his assistance in determining the issue of capacity set out in the 3 December 2010 order.

[14]         Dr. Sloan examined Mrs. Stotland on one occasion on 29 December 2010.  In his report delivered on 11 January 2011, Dr. Sloan concluded that:  Mrs. Stotland “likely ... has the capacity to instruct counsel on the matter of her divorce, limited to the financial aspects of the divorce”; did not have the capacity to manage her financial affairs; did not have the capacity to form the intention to live separate and apart from her husband; and had the capacity to appreciate the financial nature and consequences of abandoning her marital relationship.

[15]         The foundation of Dr. Sloan’s conclusion as to Mrs. Stotland’s capacity to form the intention to live separate and apart is captured in his report as follows:

Divorce involves officially terminating a personal relationship, although that relationship might have ended long ago, or might never have existed.  In response to questions about the personal aspect of her marriage, she provided non sequitur responses.  On the other hand, she sometimes gave apparently wise generalities in discussing personal relationships (“Affection changes.”).  Her tangential and disorganized thinking was most evident in discussing these issues.  Because there is no factual basis against which to compare her understanding of the personal aspects of her marriage, I must estimate her ability to evaluate this from her measurable mental abilities and deficiencies, and the nature of her conversation on the topic of the marriage.  I found her judgment, insight, and thinking process deficient here, and so conclude that she has impaired understanding in this area, and so lacks the capacity to form the intention to live separate and apart.

[16]         The application for the s. 57 declaration was heard by Madam Justice Maisonville on 8 February 2011.  In oral reasons delivered that day, she reviewed the foregoing history, together with extensive references to Dr. Sloan’s report.

[17]         The chambers judge referred to several cases that have considered capacity issues in the divorce context:  Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281 (G.D.), aff’d (1998), 37 O.R. (3d) 221 (C.A.), leave to appeal ref’d [1998] S.C.C.A. No. 161; M.K.O. (by his Litigation Guardian) v. M.E.C., 2005 BCSC 1051, 47 B.C.L.R. (4th) 333; and A.B. v. C.D.

[18]         The chambers judge, relying on the decision of the trial court in Calvert, at 294, defined the question before her as “whether the claimant here understood what she was doing” (at para. 29).  She noted that Dr. Sloan found Mrs. Stotland to be suffering from dementia (Dr. Sloan described it as mild to moderate cognitive impairment).  The chambers judge also noted that Mrs. Stotland’s answers on cross-examination were disjointed and unresponsive (and recognized that the questions were themselves disjointed) and that she was unable to identify the nature of an affidavit.

[19]         The chambers judge reviewed the reasons given by Mrs. Stotland for wanting to end the marriage – her only complaint being that Mr. Stotland “fell asleep playing bingo” – and noted the absence of any evidence that Mr. Stotland mistreated his wife.  From this, the chambers judge said there was “no other evidence before the court that she has the requisite ability to form the intention to separate” (at para. 51).

[20]         Ultimately, the chambers judge concluded:

[55]      There is no question on the evidence before the Court that Ms. Stotland lacks the necessary capacity as set out in the test in A.B. v. C.D. that would result in a s. 57 order.  Unlike the case of A.B. v. C.D., there is definitely no ability of Ms. Stotland to manage her own affairs.  Although there is the opinion of Dr. Sloan that she instruct counsel, she clearly does not meet the test set out of both managing her affairs and instructing counsel in any event.

[21]         In my opinion, the chambers judge erred in law in the formulation and application of the proper test of the capacity necessary to form the intention to live separate and apart.

[22]         It is not disputed that Mrs. Stotland is cognitively impaired or that she is incapable of managing her financial affairs.

[23]         In A.B. v. C.D., the husband, who opposed the granting of a s. 57 declaration, conceded that his wife had general capacity to manage her affairs and to instruct counsel.  The husband sought a medical examination under then Rule 30(1) to establish that his wife suffered from a delusional disorder that informed her intention to live separate and apart.  The chambers judge, in reasons indexed as 2008 BCSC 1155, concluded that since the wife had the capacity to conduct her own affairs and to instruct counsel, her adverse mental condition, if it existed, had no bearing on the issues to be determined in the divorce proceeding.

[24]         On appeal, this Court upheld the chambers judge and adopted the comments in Professor Robertson’s text, Mental Disability and the Law in Canada, 2d ed. (Toronto: Carswell, 1994) referred to by the chambers judge at paras. 23-24 of his reasons:

[23]      The capacity to form the intention to live separate and apart is discussed in Professor Gerald B. Robertson’s Mental Disability and the Law in Canada, 2nd ed., (Toronto: Carswell, 1994) at 272:

Where it is the mentally ill spouse who is alleged to have formed the intention to live separate and apart, the court must be satisfied that that spouse possessed the necessary mental capacity to form that intention.  This is probably similar to capacity to marry, and involves an ability to appreciate the nature and consequences of abandoning the martial relationship.

[24]      Professor Robertson went on to discuss the capacity to marry at pp. 253-254:

In order to enter into a valid marriage, each party must be capable, at the date of the marriage, of understanding the nature of the contract of marriage and the duties and responsibilities which it creates....  The test does not, of course, require the parties to be capable of understanding all the consequences of marriage; as one English judge aptly noted, few (if any) could satisfy such a test.  ...the common law test is probably only concerned with the legal consequences and responsibilities which form an essential part of the concept of marriage.  Thus, if the parties are capable of understanding that the relationship is legally monogamous, indeterminable except by death or divorce, and involves mutual support and cohabitation, capacity is present.  The reported cases indicate that the test is not a particularly demanding one.  As was said in the leading English decision, “the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend”.

...  Capacity to marry may exist despite incapacity in other legal matters.  This necessarily follows from the fact that the requirements of legal capacity vary significantly as between different areas of law, and must be applied specifically to the particular act or transaction which is in issue.  Thus, for example, a person may lack testamentary capacity yet have capacity to marry.  Similarly, a person may be capable of marrying despite having been declared mentally incompetent and having had a property guardian or guardian of the person appointed.

[25]         This Court ultimately concluded:

[36]      In summary, disordered or delusional thinking which may contribute to an individual’s intention to live separate and apart, does not diminish that individual’s capacity to form that intention, provided it does not reach the level of incapacity that interferes with the ability to manage his or her own affairs and instruct counsel.  In this case, there is no probative value to the evidence the husband seeks to obtain by his R. 30(1) application as the wife admittedly has the higher level of capacity to manage her own affairs.  As a result, the wife’s mental condition, even if she was found to be suffering from delusional disorder, cannot be an issue in the proceeding.

[26]         A useful discussion of the hierarchy of levels of capacity is found in Calvert at paras. 54-56:

[54]      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.

[55]      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 recognized that the mental capacity required for divorce is the same as required for entering into marriage:  re: Kutchins, 136 A. 3d 45 (Ill., 1985).

[56]      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.  (I note that Mr. Birnbaum felt that, in August 1994, he would have taken instructions for a will but for Dr. Hogan’s concern about her ability to instruct counsel.)  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.

[27]         As the authorities make clear, the capacity to form the intention to live separate and apart has been accepted as equivalent to the capacity to enter into a marriage.  As the Court stated in Calvert, the intention to separate requires the lowest level of understanding.  The requisite capacity is not high, and is lower in the hierarchy than the capacity to manage one’s affairs.

[28]         Contrary to the chambers judge’s assumption as to the correct test, the test applied in A.B. v. C.D. did not require that a s. 57 declarant have both the ability to conduct her own affairs and to instruct counsel.  Although both capacities were conceded to exist in that case, it was sufficient that the declarant have the capacity to instruct counsel in order to have the capacity to form the intention to live separate and apart.

[29]         As Dr. Sloan’s report makes clear, Mrs. Stotland has the capacity to instruct counsel.  He confined the capacity to the matter of her divorce “limited to the financial aspects of the divorce”.  Dr. Sloan found that Mrs. Stotland’s understanding of the financial aspects of a divorce was coherent.  He concluded that she had formulated a logically coherent plan by which she would prevent her husband’s nephews from gaining control of what she considered to be her finances.

[30]         As noted, Dr. Sloan’s reasons for concluding that Mrs. Stotland did not have the requisite capacity to form the intention to live separate and apart were founded on her responses to questions about the personal, not financial, aspects of her marriage.

[31]         In my opinion, if, as Dr. Sloan has concluded, Mrs. Stotland has the capacity to instruct counsel, especially on financial matters related to a divorce, the test of capacity to form the intention to live separate and apart was met.

[32]         In saying this, I mean no criticism of Dr. Sloan.  He was responding to questions posed by counsel and the Court and was given no guidance as to the legal definition of capacity.  Quite understandably, his opinion was a medical one and of general assistance.  However, it could not, and should not, have decided the legal issue before the court.

[33]         In summary, I conclude that the chambers judge erred in law in applying a dual test for the capacity to form the intention to live separate and apart.  Mrs. Stotland had the capacity to instruct counsel and understood that she wanted her share of the family assets.  That evidence provided a sufficient basis to grant the s. 57 declaration. 

[34]         It follows that I would allow the appeal, set aside the order of the chambers judge and make the declaration pursuant to s. 57 of the Family Relations Act that there is no reasonable prospect of reconciliation between the parties.

[35]         I would order that Mrs. Stotland is entitled to her costs of the appeal and of the applications in the Supreme Court relating to this issue.

[36]         It is, in the circumstances, unnecessary to address Mrs. Stotland’s application to adduce fresh evidence.

“The Honourable Madam Justice Kirkpatrick”

I agree:

“The Honourable Mr. Justice Hall”

I agree:

“The Honourable Madam Justice D. Smith”