Miscellaneous Cases
The brief notes below are only synopses and summaries of recently
released decisions and as such should not be relied upon as an accurate
description of the law contained in the actual judgments referred
to. Always check the actual report before relying upon a comment
set out below. Please check Caveat and Note About Sources for a description of the sources used to collect these cases.
I am gratefully indebted to Shelagh Mathers of Campbell & Mathers,
in Picton, Ontario, for her assistance in compiling the
cases found below. Shelagh has been in practice since 1988 and serves
clients in Prince Edward County and surrounding areas. You can reach
her by phone at (613)476-2366 and by fax at (613)476-6064. You can
also e-mail Shelagh directly.
Joel Miller
MISCELLANEOUS CASES OF INTEREST
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Halliday v. Halliday, Ont. C.A.(Dec. 24/97)
No Christmas present for Mrs. halliday. She and the mister had been married and then divorced in 1976. the resumed cohabitation from 1979 to 1992 without remarrying. She used all her income to cover groceries and support for herself and her children and was destitute when they separated again. Mr. halliday, however, had used his income to accumulate $258,000. Court of Appeal upheld trial judge's finding that the parties had entered into a "business arrangement". Even though one could claim unjust enrichment even with a business arrangement, the court held there wasn't enough evidence to support she had made sufficient contribution to entitle her to make a trust claim.
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Spence v. Michell, Ont. C.A.(Dec. 9/97)
Parties had never married. Common law wife agreed to move from Quebec to Ontario only if husband promised she would have the security of a home. He purchased home in her name. They separated and he claimed a constructive or resulting trust. Court of Appeal upheld lower court finding that the home was a gift and that there was never any common intention that it was to be held by her in trust for both of them. Accordingly, the presumption of a resulting trust was rebutted.
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Bennett v. Bennett, Ont. Gen. Div.(Nov. 21/97)
Parties married 22 years and entered into marriage contract months before separation. Controlling and domineering husband and wife signed against her lawyer's advice while extremely distraught. No financial disclosure. Contract set aside in the circumstances. It was held to be unconscionable because of its inequality ad improvidence.
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Deguire v. Deguire, Ont. Gen. Div.(Dec. 3/97)
Parties married 11 years when husband got wife to sign a marriage contract. He separated 4 months later and court found he had planned to leave when he insisted she sign. Agreement set aside because court found wife signed in the false expectation that by doing so she would keep the marriage together.
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Maljkovich v. Maljkovich Estate, Ont. C.A.(Oct. 30/97)
In a case which doesn't shock the conscience of many the Ontario Court of Appeal upheld a trial court's decision that a husband who murders his estranged wife was not entitled to a division of assets. After all, crime shouldn't pay.
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Dutton v. Dutton, Ont. Gen. Div.(Oct. 6/97)
The parties had been married for 17 years and their separation agreement involved the wife giving up a substantial claim in family property. But she retained the right to use the cottage property owned by the husband. She exercised this right and visited the cottage with her new husband. This upset the old husband who transferred title to the cottage to his new wife as a gift and then claimed that he was no longer the owner of the property and first wife no longer had any rights of access to it.
The court wan't impressed and held that although the ex no longer held legal title to the cottage he still held a property interest which remained subject to the terms of the separation agreement. Court granted wife a declaration that she had a right of access to the property and could recover damages for being denied that right.
Moral? Don't make deals you don't want to keep.
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Hesse v. Phillips, Ont. Gen. Div. (Nov. 12/97)
Common law spouses. Husband put more cash into the home they lived in than wife when they bought it as joint tenants. For several years the parties shared the carrying cost of the mortgage but husband paid off the mortgage in 1988. They renovated house, adding to its value and husband put up most of the money for this. Husband sought more than 50% interest on grounds of constructive trust. Court agreed and held that by putting up the cash he had created a benefit for the wife with a corresponding detriment to himself. As there was no juristic reason for the benefit and it would be unjust not to acknowledge th greater contribution he made to the purchase of the home the court granted him a larger interest in it than the wife. Not so regarding the improvements because while he put up the more cash she invested more time in household tasks as well as contributing financially to the renovations. Therefore no injustice in equal sharing of the increase in value attributable to the improvements. End result was granting husband 2/3rds of the equity.
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Best v. Best, Ont. C.A.(Oct. 3/97)
In a major decision about how pensions should be valued in Ontario under the Family Law Act (FLA) the Ontario Court of Appeal held that the "value-added" approach was more consistent with the principles in the FLA to calculate its value than any other approach (such as pro-rata). This means that you value the pension at the date of the marriage and again at the date of separation - just as any other asset - rather than calculate its value by dividing the number of years of marriage by the total pensionable years. The value-added approach results in a higher value, sometimes very much so.
The Court also agreed with trial judge that the probable time for a pensioner's retirement should be determined by what the pensioner contemplated at the valuation date, not at the time of trial. If there was a change in circumstances after valuation date they should not be referred to unless they fitted into the kind of situations which would allow a court to consider post-separation events.
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Kane v. OntarioOnt. Gen. Div. (Oct. 1/97)
Court held that s. 224(1) of the Ontario Insurance Act was discriminatory by defining spouse as "either of a man or woman" and struck it down declaring the definition should read "either of two persons". Mr. Justice Coo said: "Exclusion of same-sex relationships adds nothing meaningful to the scheme, except discrimination based on sexual orientation." He also stated: The denial of equal benefit ... is deliberately based only on sexual orientation and runs against the preservation of human dignity and self-worth for part of our society."
Ms. Kane had been denied insurance benefits available to a spouse upon the death of her long time same-sex partner.
This case follows the earlier decision of the Ontario Court of Appeal in M v. H to the same effect, which the Ontario government has appealed and which is expected to be heard by the Supreme Court of canada early in 1998.
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Heung v. Heung, B.C.C.A., (Sep. 24/97)
Parties married in 1973 and wife ceased working to raise their family. They separated in 1981 with an agreement and court order including support to wife with a formula for increases which was more generous than actual cost of living increases. Husband's net assets had increased significantly but he was now earning very little. He owed over $100,000 in arrears and sought to vary and wipe them out because his income had dropped significantly and he felt wife should be taking steps to support herself. Court held no. He had arranged his affairs to increase his capital wealth at the expense of income and there was nothing in the agreement suggesting that the spousal support should end unless a specified event occurred. It hadn't and therefore the support was to remain in force.
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Sagl v. Sagl, Ont. Gen. Div. (Jul 11/97)
The Court held that the husband's contingency interest as a capital beneficiary in a family trust he created 2 years before the second marriage could be valued as part of his Net Family Property under Ontario's Family Law Act by assuming a deemed realization of the trust at the date of separation less contingent income taxes. It was felt best to "approach this difficult issue [ie: how to deal with the trust in which the husband only had a right to an income and was not one of the trustees] on a fair and equitable basis having regard to trust law, the definition of property and the evidence as to what the intention was at the time of the creation of the Trust."
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Knechtel v. Knechtel, B.C.S.C. (Aug 15/97)
Dentist and wife separated after 15 years marriage. Signed separation agreement obliging him to pay $2,400 per month spousal support and to continue to pay that if she attended school. She enrolled part time, worked part time and remarried. Husband sought to discharge his obligations. There was no fixed termination clause and the agreement specifically contemplated her returning to school to train for a new career. The remarriage was, or should have been, foreseeable. Wife says she gave up claim to husband's practice in exchange for the support arrangement. In today's world remarriage doesn't necessarily offer long term security. Court denied husband's request.
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Philp v. Philp, Ont. Gen. Div. (Aug 20/97)
Wife sought support 15 years after separation. She using up her property settlement and had variety of menial jobs. Court granted support and took into consideration that: had wife made a timely claim for support she would have received it without time limitation (42 years old and out of the work force 24 years at separation); the property division - even though it gave her more than half - wasn't an equitable distribution of resources having regard to the permanent economic disadvantage to her arising from the breakdown of the marriage; the wife's inability to support herself and her slide into poverty commencing upon separation and her inability to act in her own interest due to her undiagnosed condition of major depression coincident upon the separation.
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Gray v. Gray, Ont. Gen. Div. (June 26/97)
At time of original order for spousal support wife earning $31,620 and husband $$44,000. Parties knew wife suffering from life-threatening health problems. Her health deteriorated since then and she now unable to keep her employment. Income now $16,000 while husband's continues above $40,000. Each party entered into new, long term relationships. Wife's request for increased support denied because she hadn't been able to show any need for it. Although her drop in income was a material change warranting an examination of her support, her standard of living was now as good as, or better than, that she had at the time of the divorce as a result of her new relationship.
CAVEAT and NOTE ABOUT SOURCES
The brief notes below are summaries of recently released decisions as
well as from digests and reports set out more fully in a variety of
sources including the Syrtash Family Law Netletter (one of the QuickLaw
databases found as SFLN), the monthly Ontario Family Law Reporter, the
case summaries found at the end of both The Lawyers Weekly and the Law
Times weekly legal newspapers, caswes posted onn the Internet by the
Supreme Court of Canada and The British Columbia Superior Court and
Court of Appeal and the Ontario Court of Appeal and the public press.
The summaries here are done for general information by the Family Law
Centre and are not the responsibility of any of those sources.
As these are only synopses and summaries they should not be relied upon
as an accurate description of the law contained in the actual judgments
referred to. Always check the actual report before relying upon a
comment set out below.
If you have access to QuickLaw, you will be able to find the excellent
Syrtash Family Law Netletter (SFLN) with John Syrtash's full summary
and comments along with the report of the case itself. That is the most
direct way to get the written decision of any case without obtaining
a copy from the lawyers involved or the court office - unless the case
is a decision of the Supreme Court of Canada, the Ontario Court of Appeal
or the British Columbia Superior Court or Court of Appeal, whose decisions
are available on the Internet. Both The Lawyers Weekly and The Law Times
have fax services which will send you copies of the decision at a charge.
Many of the cases set out below will eventually be reported in the regular
print legal reports and available from your local law library.
The Family Law Centre will not be able to supply copies of full judgements.
To get further information if you are not a lawyer with access to the
sources referred to above, you are advised to retain one to do the research
you want or to follow up on anything you find of interest below.
Note: The designation means that the summary
is new and is the most recently added case or group of cases to the
section, not necessarily that the case is more recent than the others
noted below it.
If you know of any case you think should be included to the listing above,
please send me an e-mail
with the information. Thanks, Joel Miller.
