Who is to say if an adult person should be able to make the decision to get married? For most people, this will never be a consideration – they will never have to wonder if they will be ‘allowed’ to take part in a legal wedding ceremony in Canada, especially since 2005 when the country took the step of legalizing same-sex marriage.

However, for adults with intellectual or developmental disabilities, the legal capacity to consent to marriage becomes an increasing concern. Clearly, each individual person is different and the umbrella of what is considered to be an intellectual disability is extremely broad. One’s capacity to appreciate and understand what it means to become legally married will vary considerably among those who may live with an intellectual disability.

A recent article about a Federal Court decision with respect to immigration highlights the challenges of determining capacity, and the impact this determination can have on a person’s life and their family.

Mental Capacity and Marriage in Alberta

The capacity to marry is determined in most provinces and territories through legislation. In Alberta, s. 27(1) of the Marriage Act sets out the rules with respect to capacity to consent to marriage as follows:

Except as provided in subsection (2), no person shall issue a
marriage licence when the person knows or has reason to believe
that there is in effect with respect to a party to the intended
(a) a guardianship order or trusteeship order under the Adult
Guardianship and Trusteeship Act
or equivalent legislation
of another jurisdiction,
(b) a certificate of incapacity under the Adult Guardianship and
Trusteeship Act
or equivalent legislation of another
jurisdiction, or
(c) a committee under The Mentally Incapacitated Persons Act,
RSA 1970 c232, or equivalent legislation of another

This places the onus on the person issuing the marriage licence to make a determination of capacity and inquire further if they have reason to believe it may be an issue.

Immigration Appeal Decision Determines Marriage Not Genuine Due to Capacity

In the case discussed above, a Canadian man resident in Ontario married a woman resident in India. The marriage took place in India, meaning the provincial rules with respect to the issuance of a marriage certificate would not have applied. However, when the husband brought an application to sponsor his wife for residency in Canada, Immigration and Citizenship Canada rejected the application. The couple then appealed to the Immigration Appeal Division (IAD).

By way of background, the husband completed a grade 5 education and was said to operate considerably below his actual age of 45 years. He resided with his parents and earned income through the Ontario Disability Benefits program. The wife was 35 years old, and was introduced to the husband through her parents, who entered into a traditional arranged marriage with the husband’s parents.

The husband testified at the appeal hearing on a limited basis. The IAD was not confident that he had a complete understanding of the process, or his obligation to be honest in his testimony.

The wife testified that despite her husband’s limitations, she had fallen in love with him after learning more about him, and how to better communicate with him. She said that her parents had also evaluated his family and made the decision that he would make a suitable husband, and she trusted their assessment. The couple made the claim that the husband would move to India to reside with his wife if their appeal was unsuccessful.

In support of their appeal, the couple submitted reports from two psychiatrists which found that the husband, despite his intellectual disabilities, understood what it meant to be married. Further, they said he had expressed interest in having children and raising a family.

The Minister of Citizenship and Immigration also weighed in on the matter, finding that the marriage was legitimate, however left the ultimate judgment on the matter in the hands of the IAD. The IAD ultimately found the marriage was disingenuous, stating:

It seems that the applicant was willing to accept the appellant’s personal, intellectual and economic limitations, since the appellant earns a mere $12,636.00 per year from government disability, in exchange for permanent residence. It appears the applicant as well as her family had no concerns with the appellant not being able to work and is in receipt of disability. This does not add up and the panel makes a negative inference as a result.

The couple appealed the decision to the Federal Court, which considered the procedural issues from the IAD decision and found that the IAD had failed to cross-examine the husband’s father and litigation guardian. As a result, the matter was remitted back to the IAD to be reheard by a different panel.

Lawyers and Disability Activists Appalled at Implications

Despite the success in Federal Court, the decision of the IAD is of great concern for many lawyers and activists, who feel the IAD seemed to find that the marriage was not genuine simply due to the husband’s challenges. The opinions expressed appeared to indicate that the IAD did not believe the wife could legitimately be in love with a man who was unable to work, or who had communication challenges. Looking at the comments expressed by the panel, including the one posted above, many feel there was a bias that says that those facing intellectual challenges are somehow unworthy of a loving relationship.

Speaking to the decision, a law professor from the University of Ottawa had this to say:

It does reflect on society’s overall premise that only certain kinds of people can have a normal relationship and what is a normal relationship. [The] sponsorship regime requires undertaking (from the sponsors) to support and care for the sponsored spouses. People should be free to choose who they want as a partner and should be willing to take the risk that comes with that.

The situation certainly highlights the subjectivity of what we mean when we talk about assessing capacity and who should be entitled to make major life decisions for themselves. At the very least, it seems to highlight the need to identify and make an effort to eliminate subjective bias whenever possible in such decisions.

The family law lawyers at Mincher Koeman are exceptionally experienced family litigators in a variety of issues including divorce, marriage, parenting matters and financial issues. We work with families to find effective solutions for their individual circumstances. To discuss your matter with a member of our team, contact our office today by calling us at 403-910-3000 or reach out online.

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