In Wolfman-Stotland, the parties were both in their 90s and each had lived in a separate assisted living facility for several years before the wife commenced proceedings in June 2010. In October 2010, counsel for the wife applied for a declaration, under s. 57 of the Family Relations Act, that the parties had no reasonable prospect of reconciling with one another. Although this declaration is really about protecting property and has nothing to do with separation or qualifying for a divorce, it nevertheless requires to the court to make a conclusion about the wife's intention to end the marriage and therefore about her capacity to form such an intention. The court summarized the issue with this quote from Mental Disability and the Law in Canada by Gerald Robertson:
"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."After discussing the evidence on this point, particular that of a mental health expert, the court cited with approval the discussion of capacity set out in a 1997 case out of Ontario called Calvert v. Calvert:
"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.
"The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend ...It has always been curious in my view that the mental capacity to enter a marriage should be so low compared to the mental capacity required to leave a marriage; doubtless this is a result of the social and religious stigmata formerly associated with divorce. In any event, on the strength of the expert's conclusion that the wife had the mental capacity to instruct counsel on the financial aspects of the parties' divorce, the court of appeal concluded that the wife also had the capacity to "to form the intention to live separate and apart" and therefore also the capacity to apply for the s. 57 declaration.
"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 ... 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."
Another good case on a related issue is the Supreme Court's 2005 decision in M.K.O. v. M.E.C., which involved the capacity of a party to apply for a divorce where the divorce action is commenced by the party's litigation guardian. This decision is very well written and worth a read. More information about s. 57 declarations can be found in an older post, "The Ins and Outs of Separation."