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Going through a separation or a divorce can lead to those involved having a difficult time working through things, such as the division of their personal property or custody of their children. While it’s natural for hard feelings to develop through these times, a recent decision from the Ontario Superior Court of Justice serves as an important reminder not to let these feeling get in the way of what’s most important – resolving the issues between the parties.
The relationship
The court explained that the parties were married for four years and were together for a total of eight. They went to court to resolve claims around unjust enrichment, a constructive trust, proprietary estoppel, loss of future income, and compensation for emotional and physical damages stemming from the wife’s role in pursuing IVF treatments. All of these claims were dismissed, but it took a nine day trial for things to conclude.
Unequal division of net family property
One claim by the wife was successful in court, though. This was her claim for an unequal division of the net family property. The court wrote that the husband would have received free and clear ownership of two family properties which had been purchased as a result of a joint venture financed by both parties. This investment led to the purchase of a working dairy farm.
The wife originally claimed $450,000, while the husband offered her just $9,000. The court ultimately awarded the wife $83,851.40, just 18% of her original claim.
Costs negate the award
When it came time to determine costs, the wife found herself with almost no money left. The court was critical of the decision by the wife to pursue the number of claims she did. The court wrote,
“The applicant, in any proceeding of this nature, chooses the remedies to be sought. It was the choice to seek multiple remedies that led to the case being over-litigated. Without those claims for extraordinary remedies, I agree with the submission of counsel for the respondent that, this matter could have been dealt with in one day to one and a half days of court time. The facts surrounding the NFP claim were basically admitted. There was no real dispute about each party’s role in that joint venture that resulted in the paying off of debts for both of them. There was no dispute about the applicant’s financial contributions to the joint venture from the proceeds of the sale of her home in Red Deer Alberta. There was no real debate about the fact that the applicant had carried the major, if not entire, costs of the IVF treatments for seven years. There was no dispute that when she moved from Alberta to Ontario, she kept her option of returning to her former employment in Alberta open.”
The court decided to award costs based on the successful claim as well as the unsuccessful ones. Again, the court wrote,
“I find the apportionment of liability is directly related to the number of claims by the applicant that were dismissed as well as the one claim that was allowed. The proceedings were made unreasonably complex by the number of unsuccessful claims. The issues are important, but should have been narrowed. I find the conduct of the applicant tended to lengthen unnecessarily the duration of the proceeding that should have taken a day to one day and a half, at most, ended up taking nine days of court time. I find that claiming those extraordinary remedies, that were all dismissed, was unnecessary and resulted in an exceptional example of over litigation in circumstances where it was clearly unwarranted.”
Ultimately, the wife was left with just $2,588.93 after having to pay substantial costs to the husband.
To speak with an experienced Windsor lawyer about complex property division, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.
