Capacity to Reconcile and Capacity to Divorce

Difficulties with capacity affect every aspect of a person’s life, from the ability to manage finances, personal care, residential placement to the capacity to get married and to divorce.

Complicating matters is that many do not realize that capacity depends on the context, and is determined whenever a decision is made.  For example, a person could have the capacity to make decisions relating to medical decisions, but not have capacity to make financial decisions, or vice versa.

When a person has diminishing capacity there are often a number of caregivers who assist.  These caregivers may have differing opinions and motivations.  These caregivers may base these opinions on little legal or practical knowledge about capacity.  It is important to get legal advice early to avoid making uninformed decisions.

Regarding capacity to divorce three key competencies may be relevant:  capacity to separate; capacity to divorce; and, capacity to instruct lawyers.  Case law has established clear tests to determine capacity in each of these cases.

The ability to reconcile after separation is not easy to determine because there are not many precedent cases to provide a clear test to guide the court.

The Honourable Justice Frances Kiteley, for the Ontario Superior Court of Justice ruled that legendary Canadian Boxer George Chuvalo did not have the capacity to decide whether to reconcile with his wife of 24 years.

George Chuvalo lacks capacity to decide on his marriage, judge rules

While there are many cases that deal with capacity, this case is unique because Justice Kiteley was asked to rule on whether Mr. Chuvalo had the capacity to reconcile.

Chuvalo v. Chuvalo, 2018 ONSC 311 (CanLII)

Justice Kiteley found that even though there was evidence that Mr. Chuvalo expressed a preference to live with his former wife, he did not understand the consequences of living with her.  The Court accepted assessments showing Mr. Chuvalo suffered cognitive decline, and evidence of Mr. Chuvalo’s cognitive challenges.

In any matter dealing with capacity and family law, it is important to get legal advice early.  It is important to find legal counsel that understand the intersection of the law of capacity and family law, and to find lawyers that can bring together a team of supports including a capacity assessor to assist you.

If you have questions about capacity, divorce and separation, contact Windsor family law lawyers Mary Fox, Tanya McNevin or Thomas MacKay today by calling 519-259-1820.   We serve clients in Windsor, Tecumseh, Lasalle, Essex, Leamington, Kingsville, Belle River, Lakeshore, and throughout southern Ontario.

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