The province’s Law Reform Commission this week recommended changes to the law governing the division of assets from marriage. The 130 recommendations are now filed with the provincial government for consideration.
The decisions by Supreme Court Justice Theresa Forgeron involve an interim order for a wife to move from the matrimonial home to make room for the husband and child while the other two involve issuing divorce decrees and the division of matrimonial assets.
In one case, the mistrust between the former partners, after more than 20 years of marriage, was so heightened, Forgeron did not order the ex-wife to turn over family photos and videos to the husband for copying explaining the ex-husband would be unlikely to return the originals.
Instead, the judge ruled the items be given to the ex-husband after he pays all outstanding maintenance costs plus an additional $500 to cover the cost of duplicating the photos and videos. The duplication is to be completed by the ex-wife.
In her decision, Forgeron noted the couple had raised two children, started a business and developed two properties.
“Much should have come from these accomplishments. Unfortunately, it did not. The separation was highly acrimonious. The business failed, judgments were registered against the parties and their business,” she said.
Of most concern, said the judge, was the ex-wife left to raise the dependent child with only minimal support from the ex-husband.
After the couple separated, the husband embarked on a new relationship and continued to operate the business. Without the consent of his ex-wife, he also transferred and mortgaged another property the couple owned and bought new property.
The business subsequently failed and the ex-husband said he is now without work and has no ability to pay child support.
He attempted to argue that the second property he transferred and mortgaged was not a matrimonial asset because he owned it prior to the marriage.
But as Forgeron pointed out in her decision, the Matrimonial Property Act deems all real and personal property acquired by either spouse prior or during the marriage to be subject of equal division unless it falls under a specific exemption.
Forgeron found the ex-husband was not credible and described his conduct in removing an antique car and other personal items from the garage while the ex-wife was away from the home as unsavory. He later signed the vehicle over to another family member without his ex-wife’s knowledge.
When it came to child support, including retroactive payments, the ex-husband argued his work experience was limited to manual labour and that his ability to work is compromised because of back problems.
The former wife argued he underrepresents his income because he largely works for cash.
In referencing the law, Forgeron said a parent cannot avoid child payments by self-induced income reductions or by simply claiming they are unemployed.
In her decision, Forgeron ruled the ex-husband provided little credible evidence of health issues, did little to find suitable employment, underreported his income and was focused on his own needs and interests.
Forgeron granted the divorce, ordered a division of assets that included an equalization payment to the ex-wife, along with retroactive and on-going child support.
In another case, Forgeron granted an interim order, which the ex-wife said she would appeal, ordering the woman vacate the family home in favour of the husband and teenage child.
After nearly 20 years of marriage, the couple separated with the child first living with the mother and later, the father.
The father and child had to move three times because the places they rented were eventually sold.
“It should likewise be noted that the separation has been highly conflictual, punctuated with anger, bitterness and allegations of physical, and substance abuse. The police were involved on more than one occasion,” said Forgeron.
The father argued the child needed a stable home and the mother had fallen behind in the mortgage payments and was destroying the home. He was prepared to buy her out of the property.
The ex-wife argued her former husband can neither care for the child or the home properly and accused him of using drugs, gambling and not paying his bills.
She also gets along with the neighbours while the ex-husband does not.
In granting the father’s request, the judge ruled it appeared likely the child would stay with the father.
Forgeron also noted that while maintaining the status quo would favour the mother, the best interests of the child trump status quo.
In the third case, Forgeron was asked to grant an unequal division of assets by the husband while the wife sought an equal division and spousal support payments. The husband argued against such payments.
The couple’s union lasted 10 years and while they did not have children together, the wife did have children from a previous relationship who lived with the couple.
In his argument for an unequal division of assets, the husband said the RRSP’s and penny stock he owned were purchased prior to the relationship and that his ex-wife and her children benefitted from the financial support he provided.
He further argued his ex-wife did not make sacrifices that benefitted him.
“The fact there were no biological children does not assist him with his claim. Canadian families are diverse. Families are no less families because children are not biological,” said the judge.
She said both contributed to the marriage in different ways. While the husband made a greater financial contribution, the wife provided more care to the home and children adding her contributions are no less valuable because it was not financial.
Forgeron granted an equal division of assets, including the stock and RRSP’s.
She also granted the wife support payments explaining given her age and skills, she has likely reached the outer limits of her ability to achieve economic independence. Also, the wife continued to depend on her husband after the separation as he paid the mortgage and car loan, which again accented a need.
Forgeron did order spousal support payments that are payable for the next five years.
