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Leaving lost wages? Court may order an unequal division property.

leaving

Leaving lost wages? Court may order an unequal division property.

This week, we take a look at gambling: specifically, situations where a spouse fritters away money during the marriage on games-of-chance, and how that imprudent conduct affects the equalization of property after the couple breaks up.

How does a court ‘deal’ with unlucky gamblers?

In the first case, R.(A.) v. R. (H.), 2000 CarswellOnt 4844 the husband asked for an unequal division family property, claiming that the wife had recklessly depleted the family assets: over the course of a 4-year period, she had squandered over $14,000 on bingo. In fact, she had hawked the family jewellery to fund her habit, and had forged the husband’ signature to his father’s account, all to fund her bingo habit. This was at a time when the husband’s modest income annual amounted to between $25,000 and $40,000 per year.

While sympathetic to the woman’s circumstances and apparent self-esteem issues (for which she blamed the husband), the court stopped short of declaring that the wife had an actual addiction. Instead, in light of the wife’s gambling and other financial factors, and in particular the wife’s unconscionable conduct in misappropriating funds, the court considered her behaviour to amount to “reckless depletion” of family assets and ordered that there be an unequal division of family property upon their divorce.

A second, more recent case called Laing v. Mahmoud, 2011 ONSC 4047 (CanLII). There, it was the husband who had a gambling problem: bank records showed that he had spent a significant amount of the family’s money at the Casino, sometimes making 3 or 4 withdrawals from the nearby ATM in a single day. In one month alone, he withdrew $9,000 that could not be accounted for (despite his claims that this money was spent to buy business supplies, or to pay his workers, or that he spent it on expenses for the family – who at the time happened to be living in a friend’s home rent-free). The business records did not corroborate his claims; nor for that matter did the evidence of the wife, as the court explained:

The argument that [the husband] was making withdrawals from the ATM at the Casino in Hull for gambling purposes is further supported by the evidence of [the wife] who gave clear detailed testimony. She stated that she went to the Casino for the first and last time with [the husband] on his birthday in 2002. [The husband] appeared to be very comfortable at the Casino. People greeted him by name and appeared to know him. Employees offered him food and appeared to know his habits. [The husband] told [the wife] which would be “good machines” due for a big payout. On that occasion, [the wife] won $700 and when the parties went to cash out her winnings, [the husband] had a special card for that purpose. It was obvious to [the wife] that [the husband] regularly attended the Casino. …

Under the circumstances, the court found that even if only a portion of the ATM withdrawals were used for gambling, it represented an unacceptable proportion of his net income that was lost to the family, and “crossed the threshold into the realm of reckless depletion.” The court found that an equal division of net family property would be therefore be unconscionable, and ordered an unequal division instead.

For the full text of the decision, see:

Laing v. Mahmoud, 2011 ONSC 4047 (CanLII) http://canlii.ca/t/fm470

R.(A.) v. R. (H.), 2000 CarswellOnt 4844 (S.C.J.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.