Intention and (In)Capacity to Live Separate and Apart in C.D. v. A.B.

Last Thursday, the Supreme Court denied leave to appeal in C.D. v. A.B., 2009 BCCA 200, affirming the statutory requirement that even allegedly “delusional” spouses must possess the necessary intent to live separate and apart before the courts will grant a divorce.

Circumstances precipitating family breakdown are almost always distressing. In this case, the husband (C.D.) and wife (A.B.) were married for forty-three years before the wife claims she decided to end their relationship.  The couple had attended marriage counseling for five years prior, allegedly at the husband’s insistence, in hopes of achieving reconciliation despite the wife’s claims that her husband had been unfaithful and was actively persecuting her. Vehemently denying both charges, the husband claims that their marriage counselor suggested that his wife may be suffering from “delusional disorder”.  This exceedingly rare neurological disturbance (affecting .03% of the population) is characterized by false beliefs about events in an individual’s life despite evidence to the contrary and the total absence of other mood or psychotic symptoms typically associated with schizophrenia. Individuals suffering from such delusions can otherwise function as though they were perfectly healthy. While diagnosis and treatment of the disorder are often challenging because suspected sufferers may be understandably reticent to seek help for something about which they have little insight, the wife in this case submits that her family physician declined a request for referral to a geriatric psychologist because “it is not [his] opinion” that a referral was necessary given her seeming ability to handle her affairs. The wife “unequivocally” rejects the husband’s request for further examination, maintaining her interest to end the marriage.

The only ground for divorce in Canada is “marriage breakdown”, an amorphous catch-all that may be established on several bases.  The most relevant ground for our purposes is that the spouses have lived “separate and apart” for one year in order to obtain a divorce pursuant to s. 8(1)(a) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). As only one spouse must possess the requisite intention to do so, the unwilling husband in this case seeks to demonstrate that his wife “has become incapable of forming or having an intention” to separate of her own volition under s. 8(3)(b)(i), effectively binding her in the marriage union as long as she continues to suffer delusional episodes.

The British Columbia Court of Appeal Decision

The trial and appellate courts held that the requisite capacity to “live separate and apart” for the purpose of obtaining a divorce was similar to the capacity required to marry. Both are relatively low standards of capacity that the wife clearly seemed to meet in the time leading up to and during the couple’s separation, given her apparently normal mental functioning. The husband, for example, conceded that his wife intermittently visited his ailing mother, attended to her personal care, and managed her financial affairs as power of attorney during the four months prior to the date of the couple’s separation. The husband further conceded that during their first trial, which occurred well over a year after the couple initially separated, the wife had the general capacity to manage her own affairs and instruct counsel. These admissions were ultimately determinative in the appeal.

Smith J.A. held that the capacity to marry and the capacity to separate and divorce may exist despite incapacity in other legal matters, because capacity requirements will necessarily vary between different legal acts and must be applied specifically to the particular transaction at issue. In this case, the capacity to marry and the capacity to separate and divorce were found to engage lower standards of mental competency than the capacity required to manage one’s own affairs and instruct counsel.

This hierarchy recalls an earlier, much-cited judgment of the Ontario Supreme Court in Calvert (litigation guardian of) v. Calvert, 32 OR (3d) 281, holding that there were three levels of capacity relevant to s. 8(3)(b)(i) actions: the capacity to separate, the capacity to divorce, and the capacity to instruct counsel. Separation, signifying an interest in living apart and no more, is the simplest action and requires the least competency. Divorce, while simple, requires greater competency because it signifies both physical separation and the functional undoing of the marriage contract. Instructing counsel in such proceedings, which necessitates an appreciation of separation, divorce, and desired future outcomes with relation to financial and legal issues, requires the greatest competency.

Although Smith J.A.’s hierarchy conflates the wife’s capacity to separate and her capacity to divorce, which are more appropriately distinguished in Calvert, both the C.D. and Calvert models subsume the capacity to separate within the capacity to manage one’s affairs and instruct counsel. To concede the latter, then, is to effectively concede the former; by doing so in this case, the husband would seem to have orchestrated his own demise.

The Supreme Court Was Correct to Deny Leave

In my view, Smith J.A.’s decision is an immediately intuitive one. It essentially affirms that (allegedly) disordered or delusional thinking which may contribute to an individual’s intention to separate does not diminish his or her capacity to form that intention, provided that he or she has demonstrated competency to perform more complicated tasks.  In cases where one spouse puts the other’s fundamental capacity at issue in the proceeding, the accusing spouse should be obliged to do more than simply allege incapacity in the pleadings.  This could involve presenting more cogent expert opinion than one marriage counsellor’s potentially feckless conjecture: conjecture is far short of diagnosis, and cannot tip the balance of probabilities in the husband’s favour given his wife’s evident abilities.  In this case, the husband presented no probative evidence that the wife lacked the requisite competency to form the intention to live separate and apart. Under Canada’s no-fault divorce regime, it is not the place of the courts to examine the wife’s reasons for leaving the marriage in the absence of such evidence. Accordingly, I am of the view that the Supreme Court was correct to deny the husband leave to appeal in this case.