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MARRIAGE - Capacity to marry - Mental capacity - Annulment of marriage

Tuesday, May 29, 2018 @ 8:40 AM  

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Application by the Hunts for costs against the respondent Worrod, Legal Aid, and Worrod’s counsel. On June 18, 2011, K Hunt was involved in an ATV accident and sustained a catastrophic brain injury. On October 21, 2011, he was released from the hospital into the care of his two sons. Prior to the accident, K Hunt had been involved in an on-again/off-again relationship with Worrod for several years. Three days after he was released from the hospital, and unbeknownst to his sons, K Hunt was picked up outside his home by Worrod’s uncle. K Hunt’s sons were able to track their father to a hotel later that day, at which point they learned that their father had married Worrod that afternoon. K Hunt’s sons were appointed guardians of their father for the purpose of this litigation. In December 2011, they commenced an application for, among other things, an order declaring the marriage void ab initio on the basis that their father did not have the mental capacity to consent to a marriage with Worrod. They were successful on all their claims. Thomson acted for Worrod and Legal Aid financed Worrod’s litigation.

HELD: Application allowed in part. The hourly rates charged by the applicants’ counsel were reasonable in the circumstances. Worrod’s marriage to K Hunt was arranged through trickery and deceit. K Hunt was a vulnerable individual at the time of his marriage as he suffered from serious cognitive deficits. Worrod refused to accept several offers to settle. The applicants were entitled to full recovery of costs in the sum of $385,279, payable by Worrod. However, the evidence strongly suggested that Worrod would never be in a financial position to pay any of those costs. There was no basis for finding that Thomson acted improperly in his reporting requirements to Legal Aid and the Court was not prepared to make an order of costs against him personally. Legal Aid, on the other hand, failed to properly and conscientiously monitor the lengthy and costly proceedings. Legal Aid contributed significantly to the hardships and challenges which K Hunt and his family faced after his devastating accident, as well as to the needless waste of judicial resources. Legal Aid was to contribute $192,639, which was 50 per cent of the costs fixed as against Worrod.

Hunt (Litigation guardian of) v. Worrod, [2018] O.J. No. 2170, Ontario Superior Court of Justice, E.J. Koke J., April 17, 2018. Digest No. TLD-May282018004