Come and Get It
Tuesday, November 27, 2007 at 00:00
By Marcel Strigberger
Family lawyer Harold Naiman put it best recently when he said, "It's not a good time to be a man with money going through matrimonial proceedings or having been divorced in the past."
It is getting increasingly easy for wives or ex wives to get support, more support and support when such has even been waived and released years earlier. On the other hand somebody like Mr. Leopold who was a relative pauper was unable to get an extension of time limited support from his millionaire ex, the judge saying, a deal is a deal. We are probably not far from the day where a decision such as the following will be commonplace.
HAMMERHIM J.: This is an application for variation of a divorce judgment by the former wife ("hereinafter referred to as the economically disadvantaged spouse") who seeks an order for spousal support as against the former husband (hereinafter referred to as "him").
The parties were married for about 15 years. There were no children of this marriage as both parties concentrated on their respective careers as lawyers, the husband as a personal injury litigator and the wife as a corporate counsel for a large firm. They separated about 4 years ago at which time the parties signed a separation agreement whereby each released the other from any and all claims for spousal support. The record shows that the wife was making more money than the husband but nonetheless, the husband apparently also released his interest in the jointly held matrimonial home, a value of about $50,000, as part of the bargain. This was over and above the equalization settlement. The husband testified that he gave the wife the extra property on the advice of his family lawyer as he did not want a court in the future to have any reason to suggest that the agreement might be unconscionable."
At present, the wife pleads there has been a material change of circumstances and she would like support. At the time of the separation the wife was earning about $200,000 per annum and the husband about $150,000. At present the wife's income has actually increased a bit to $250,000 per annum and the husband's income has plummeted to about $75,000 per annum. The drop is attributed in part to the fact that the husband was off sick a fair bit due to what he wants the court to believe is "burn out".
The wife now seeks support in the amount of $2000 per annum.
In cases such as this the court must examine the provisions of the Divorce Act. Factors to consider are the needs and means of the parties, economic disadvantage and the need to encourage self-sufficiency of the parties.
It is quite apparent that in this case the wife has not really suffered a blatant economic disadvantage following the marriage breakdown. She is better of than him. Similarly as with need, her means and his needs are greater. As for economic self-sufficiency, the parties have been self-suffcieint throughout and continue to be so. In fact if anything it is the husband who might come up short in this area and who on the face of it might be in a position to claim spousal support from the wife.
But the provisions of the Divorce Act must be given a liberal meaning. The court must look at the particular case and deal with it on its facts to ensure that justice is done.
In cross-examination, the wife admitted freely that she simply would like more money. She said she is an ex wife and as such if she ever chooses to ask for money from her ex husband she should be entitled to same as of right. She likens herself to Oliver Twist, who at the orphanage wanted more porridge and accordingly he simply went over to the cook and said, "I would like more please."
Her counsel, when asked whether the landmark Supreme Court of Canada decision of Moge v Moge can be stretched this far, responded "Moge Shmoge. If it can't, then let us make new law here and now."
I agree. The legal system is about fairness and justice. A wife or ex wife is prima facie a person in need. Wives usually become mothers. Where would we be without mothers? Exactly.
The fact that there were no children in this case is irrelevant. Mrs. Gimme could very well have become a mother but for the fact that she frequently refused to have sex with her ex husband. The potential was there.
The husband argues that even if she would qualify for support, there was the separation agreement that released same. He asked that the agreement be given full force and effect. Counsel even argues that there is no suggestion that it would be unconscionable to allow the terms of the agreement to continue to be binding as it is blatantly a fair agreement.
This argument, while it looks temptingly convincing at first blush, is doomed to failure. We do not really have to worry about the agreement being unconscionable. Let us examine a more fundamental concept.
I remind the husband of that Peanut strip where Lucy annually would hold the football with her finger and ask Charlie Brown to place kick it while she held the football. She would promise not to remove her finger before Charlie Brown kicked the ball but invariably every year she would double cross poor master Brown and indeed remove her finger prematurely causing him to lose his balance and fall down. On one such occasion when he asked her why she did that notwithstanding her undertaking this year not to do so, she replied, "It is the right of a lady to change her mind"
The court considers this an infallible right indeed. It is true that this may increase the risk of uncertainty in the creation of domestic agreements. But the certainty surely cannot be at the expense of this inalienable right for the lady to change her mind. I would also find that any clause to the effect that the wife is to be bound by it in perpetuity would be void as offending public policy. I am even sure Lord Denning would agree if he were alive today.
I therefore allow the wife's application and order the husband to pay her $2000 per month in spousal support.
As for costs, as the wife's lawyer had this much courage and confidence to pursue what appeared like an uphill battle, I believe it would be fair that the husband pay his fees. I note in any event that the husband never filed an offer to settle offering to pay the wife any money.
Order accordingly.
Family lawyer Harold Naiman put it best recently when he said, "It's not a good time to be a man with money going through matrimonial proceedings or having been divorced in the past."
It is getting increasingly easy for wives or ex wives to get support, more support and support when such has even been waived and released years earlier. On the other hand somebody like Mr. Leopold who was a relative pauper was unable to get an extension of time limited support from his millionaire ex, the judge saying, a deal is a deal. We are probably not far from the day where a decision such as the following will be commonplace.
HAMMERHIM J.: This is an application for variation of a divorce judgment by the former wife ("hereinafter referred to as the economically disadvantaged spouse") who seeks an order for spousal support as against the former husband (hereinafter referred to as "him").
The parties were married for about 15 years. There were no children of this marriage as both parties concentrated on their respective careers as lawyers, the husband as a personal injury litigator and the wife as a corporate counsel for a large firm. They separated about 4 years ago at which time the parties signed a separation agreement whereby each released the other from any and all claims for spousal support. The record shows that the wife was making more money than the husband but nonetheless, the husband apparently also released his interest in the jointly held matrimonial home, a value of about $50,000, as part of the bargain. This was over and above the equalization settlement. The husband testified that he gave the wife the extra property on the advice of his family lawyer as he did not want a court in the future to have any reason to suggest that the agreement might be unconscionable."
At present, the wife pleads there has been a material change of circumstances and she would like support. At the time of the separation the wife was earning about $200,000 per annum and the husband about $150,000. At present the wife's income has actually increased a bit to $250,000 per annum and the husband's income has plummeted to about $75,000 per annum. The drop is attributed in part to the fact that the husband was off sick a fair bit due to what he wants the court to believe is "burn out".
The wife now seeks support in the amount of $2000 per annum.
In cases such as this the court must examine the provisions of the Divorce Act. Factors to consider are the needs and means of the parties, economic disadvantage and the need to encourage self-sufficiency of the parties.
It is quite apparent that in this case the wife has not really suffered a blatant economic disadvantage following the marriage breakdown. She is better of than him. Similarly as with need, her means and his needs are greater. As for economic self-sufficiency, the parties have been self-suffcieint throughout and continue to be so. In fact if anything it is the husband who might come up short in this area and who on the face of it might be in a position to claim spousal support from the wife.
But the provisions of the Divorce Act must be given a liberal meaning. The court must look at the particular case and deal with it on its facts to ensure that justice is done.
In cross-examination, the wife admitted freely that she simply would like more money. She said she is an ex wife and as such if she ever chooses to ask for money from her ex husband she should be entitled to same as of right. She likens herself to Oliver Twist, who at the orphanage wanted more porridge and accordingly he simply went over to the cook and said, "I would like more please."
Her counsel, when asked whether the landmark Supreme Court of Canada decision of Moge v Moge can be stretched this far, responded "Moge Shmoge. If it can't, then let us make new law here and now."
I agree. The legal system is about fairness and justice. A wife or ex wife is prima facie a person in need. Wives usually become mothers. Where would we be without mothers? Exactly.
The fact that there were no children in this case is irrelevant. Mrs. Gimme could very well have become a mother but for the fact that she frequently refused to have sex with her ex husband. The potential was there.
The husband argues that even if she would qualify for support, there was the separation agreement that released same. He asked that the agreement be given full force and effect. Counsel even argues that there is no suggestion that it would be unconscionable to allow the terms of the agreement to continue to be binding as it is blatantly a fair agreement.
This argument, while it looks temptingly convincing at first blush, is doomed to failure. We do not really have to worry about the agreement being unconscionable. Let us examine a more fundamental concept.
I remind the husband of that Peanut strip where Lucy annually would hold the football with her finger and ask Charlie Brown to place kick it while she held the football. She would promise not to remove her finger before Charlie Brown kicked the ball but invariably every year she would double cross poor master Brown and indeed remove her finger prematurely causing him to lose his balance and fall down. On one such occasion when he asked her why she did that notwithstanding her undertaking this year not to do so, she replied, "It is the right of a lady to change her mind"
The court considers this an infallible right indeed. It is true that this may increase the risk of uncertainty in the creation of domestic agreements. But the certainty surely cannot be at the expense of this inalienable right for the lady to change her mind. I would also find that any clause to the effect that the wife is to be bound by it in perpetuity would be void as offending public policy. I am even sure Lord Denning would agree if he were alive today.
I therefore allow the wife's application and order the husband to pay her $2000 per month in spousal support.
As for costs, as the wife's lawyer had this much courage and confidence to pursue what appeared like an uphill battle, I believe it would be fair that the husband pay his fees. I note in any event that the husband never filed an offer to settle offering to pay the wife any money.
Order accordingly.
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© 2007 Marcel Strigberger. This article CANNOT be copied or reproduced in any way without the expressed written consent of the Author.
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