Capacity Issues Regarding Divorce and Reconciliation

George Chuvalo was a Canadian professional boxer of some renown, winning five heavyweight Canadian titles and was a two-time heavyweight world title challenger, sparring with the likes of Mohammed Ali, Joe Frazier and George Foreman.

In Chuvalo v. Chuvalo, 2018 ONSC 311, the court was asked to consider whether George Chuvalo had the capacity to divorce or reconcile with his wife, Joanne Chuvalo, a relationship of over 20 years.

In December 2017, counsel for George brought an application for an order appointing the Public Trustee as litigation guardian for his client, an order that was made by consent. The trial between the parties commenced in January 2018, where Joanne’s counsel submitted that the court was obliged to adjourn the proceeding to give the parties an opportunity to explore reconciliation, pursuant to s. 10(2) of the Divorce Act. She was opposed to a trial and argued that the court had no jurisdiction to order a trial, where there was evidence that the parties sought to reconcile.

The trial judge did not accept counsel’s submission, because the evidence seemed to show that George lacked the capacity to instruct counsel and seek a divorce, and required a trial to determine his capacity to make those decisions.

After the appointment of the Public Trustee, private counsel for George ceased to act for him, and the Public Trustee sought a four-month adjournment to get up to speed. Joanne resisted the four-month adjournment and a trial for capacity was commenced. The Public Trustee declined to take a position on George’s capacity, saying they did not make capacity decisions and were only charged with obtaining evidence for the court to determine the capacity issue. The court decided to proceed with the capacity hearing, recognizing that George would not be represented, but his interests would be safeguarded by the court.

The court noted that everyone is presumed to have capacity and for that reason, the onus is on the person challenging capacity to prove a lack of capacity, on a balance of probabilities. However, in these unusual circumstances, the court reversed the onus and directed George to prove that he had capacity, as the court was satisfied that George lacked capacity to instruct counsel, and therefore the burden of proof did not have to be addressed.

The court heard from Dr. Richard Shulman, who had interviewed George several times and was qualified to opine on his capacity. George’s sister and his wife also testified. Both lay witnesses were permitted to testify that George advised them that he wished to live with his wife, and not at a nursing home or elsewhere. Dr. Shulman opined that George lacked capacity to reconcile or divorce and instruct counsel.

A second physician, Dr. Heather Gilley, also testified and produced a report wherein she indicated she was asked to address whether George had an interest in reconciliation, whether he had the capacity to divorce, whether he had the capacity to instruct counsel, and whether his physical or mental condition made him more susceptible to undue influence or duress.

Dr. Gilley referred to the test for capacity from Calvert (Litigation guardian of) v. Calvert, [1997] O.J.No. 553, that the person must demonstrate the “ability to understand information relevant to a decision” and the “ability to appreciate the consequences of a decision or lack of a decision.” She testified that George had significant cognitive impairment but was still able to express his wishes and could decide whether to proceed with the divorce or remain married. She did not believe he had the capacity to instruct counsel and found that he was likely vulnerable to undue influence.

However, the court preferred Dr. Shulman’s evidence because he focused only on the patient and limited his investigation and analysis to the patient’s interests. Dr. Gilley’s approach was far different, as she reviewed all the affidavits filed, met with the patient’s extended family to gather corroborating information to check the veracity of George’s statements to her, and engaged in a truth-seeking function.

The court declared that George lacked capacity to decide whether he wished to reconcile with his wife. The court declined to deal with the issue of divorce, noting that the fundamental issue was the conflict between Joanne and George’s adult children, a common scenario where a vulnerable adult is a parent to adult children who challenge their stepmother’s relationship with their father.

Each side in this conflict was convinced that the other was out to manipulate and control George for personal financial gain, however, no findings were made by the court in respect of the family tension.

But that was not the end of the litigation. Fortunately, the division of family property between the Chuvalos was settled out of court, but Joanne later brought a lawsuit against her husband’s children and their lawyers for abuse of process, conspiracy, intentional infliction of mental suffering and intentional interference with economic relations (see Chuvalo v. Worsoff, 2022 ONSC 4079).

All claims were dismissed but leave to amend to plead a tenable claim for intentional infliction of emotional distress was granted to Joanne, as long as the allegations did not require the re-litigation of issues determined in the divorce proceeding.

George, now 87 years old, suffers from advanced dementia and lives in a nursing home in Toronto. He is separated from but still married to Joanne.

**This article was first published by LAW360, a publication of LexisNexis Canada.