He married her in a 'campaign' to take her money: How a woman with dementia fell into a predatory marriage
No defined test to determine whether a person has the capacity to marry, lawyer says
Originally published September 4, 2018.
Three years after her aunt's dementia diagnosis, Donna Devore-Thompson — the older woman's power of attorney — got an alarming call from the bank.
Her aunt, Donna Walker, had been withdrawing large sums of money, and a man was "hanging around."
"I would ask her about this money that she withdrew — she didn't have any money in her wallet so I didn't know what was going on," Devore-Thompson said.
The man mentioned in the phone call was Floyd Poulain, a Vancouver crane operator in his 50s, who had met Walker in 2006, a year after her diagnosis.
Fours years after they met, he took the 71-year-old to a marriage commissioner's condo and married her in secret.
He didn't tell her family, who only found out weeks later, through another call from the bank in Coquitlam, B.C.
Poulain had been in, the bank said, saying that he and Walker were married.
"I was really upset," Devore-Thompson remembers.
Poulain secured power of attorney over Walker's affairs, and took her to a lawyer to change her will. He engaged in what a judge later called "a campaign" to access her money.
When Walker died in 2013, he stood to inherit much of her estate. The Current has tried to contact Poulain, leaving messages with members of his family, but has not received a reply.
Walker's shocked family eventually took Poulain to the Supreme Court of British Columbia, accusing him of preying on a vulnerable woman and pursuing a predatory marriage.
In a rare success for a case of this kind, the marriage was set aside. Devore-Thompson's legal fight, on behalf of a beloved aunt who could no longer fight for herself, is the subject of the documentary When Donna met Floyd, which aired on The Current.
What is a predatory marriage?
In a predatory marriage, "one party to the marriage is intent on financially exploiting the other," said Kimberly Whaley, a Toronto-based lawyer.
Whaley has worked on cases involving predatory marriages, and is a co-author of Capacity to Marry and the Estate Plan.
She said that there are no statistics on the prevalence of predatory marriages — victims are often isolated, with no family to take up their case in court — but from her work she sayss the problem is becoming more common.
"It is increasing — like financial exploitation is generally increasing," said Whaley.
"I think that's because we have longevity," she added. "People are living longer, they're vulnerable, dependent — and they're available to be preyed upon."
The Marriage Act states that a marriage should not be solemnized if one of the parties "lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason."
Emily Clough, a Vancouver lawyer who represented Walker's family in court, said the problem lies in determining that capacity.
"Our test of marriage is so low, it really takes very little ... to have the capacity to get married," she said.
Clough thinks that when two people marry, it should be part of the marriage commissioner's role "to do some analysis, do some investigation, do something regarding capacity."
Walker married, she added, despite being "barely cognizant of what was going on in her life, due to her own declining mental capacity."
A happy life that starts to unravel
Devore-Thompson was always close to her "cool aunt" Walker — so close that their family referred to them as Little Donna and Big Donna. When the younger Donna grew up and moved from Edmonton to Vancouver, the pair would get together and treat themselves on "Donna Days."
But in 2004, she noticed something wasn't quite right — her aunt was becoming forgetful. The diagnosis came in 2005, when Walker was 66. The following year, she began to mention her "new friend" Poulain.
By 2007, Walker's doctor advised that it was time to get her affairs in order. She gave power of attorney to Devore-Thompson, who gave her phone number to Walker's bank and her favourite shops.
"She kept saying to me, 'Protect my money, protect me,'" Devore-Thompson said. "And I remember her telling me that she doesn't know where this disease is going to take her, but, 'Just always remember that I love you.'"
Walker 'couldn't explain' where cash was going
In the years that followed, Walker's condition deteriorated, and Poulain's influence grew.
"Floyd would go with her to the bank and she would start taking out cash," Clough said. "That amount of cash she was withdrawing over time increased and she couldn't explain where it was going."
The bank flagged the unusual activity, but because the money belonged to Walker, her family was powerless. Then came the call about the marriage.
A few months later, Walker fell and was hospitalized. Her diminished mental capacity became apparent, and she moved into a care home that September in 2010.
Packing up her belongings, Devore-Thompson found handwritten notes to her aunt.
"One of them was: 'Donna ... go down the bank, take out $40,000, it's really important," she said.
The Donnas get their day in court
Walker died on Boxing Day 2013. She was 74.
She had spent the last three years of her life in a care home, but Poulain, as her husband, stood to inherit much of her estate.
Whaley explained that in some provinces, entering into a marriage revokes a will.
"Many people don't know that, and if you don't have the requisite capacity to know that, or to do a new will, then it creates a big problem," she said.
While that law was changed in Alberta in 2012, and B.C. in 2014 — after Walker's death — this is still the case in Ontario.
The civil trial began in the fall of 2016, with Clough arguing that this was a case of predatory marriage. Not only was the marriage invalid, but so was the will, she said.
Poulain countered that he had just been trying to help Walker get her own money, after her family restricted access. He also stated in evidence that he never noticed anything wrong with Walker's mental state.
The judge in the case, Justice Susan Griffin, decided that Poulain was not telling the truth, and "was attempting to deceive the Court as to Ms. Walker's abilities and health."
She concluded that he was a "dishonest witness."
The case wrapped up in summer 2017. Justice Griffin set aside both the will and the marriage, concluding Walker did not have the capacity to marry.
Protect vulnerable adults, says lawyer
Walker's case was unique, Whaley pointed out, because there was a lot of medical evidence regarding her mental state. This gave the judge context when considering whether she had the capacity to marry.
She wants the government to enact specific legislation around predatory marriages, but also thinks provincial marriage law could be tightened. Convening a marriage where one party is incapable is banned in Ontario, but the law in B.C. makes it a criminal offence.
She hopes that Walker's case will help to move the law along.
"Something has to be done to prevent ... financial abuse perpetrated on older adults," she said.
Devore-Thompson said that Poulain "took a big chunk of my life," but she knew she had to stand up for her aunt.
"I promised her — made that promise to her," she said. "I feel very proud of what I've done to help protect her, and her dignity."
Listen to the documentary near the top of this page.
Written by Padraig Moran. Produced by The Current's documentary editor Joan Webber.