Skip to content

Posts tagged ‘custody and access’

A Broken Child Support Contract:  Can it be Tantamount to a Human Rights Violation?

Image result for human rights

A Broken Child Support Contract:  Can it be Tantamount to a Human Rights Violation?

This was a unique recent case that was heard  not by a Family Court, but by the Ontario Human Rights Tribunal.

The husband went before the Tribunal with a rather novel argument.  He and his former spouse had entered into a child support contract together, but he was having difficulty enforcing the child support payments under it.   So as an alternative to going to court, he claimed this amounted to “discrimination” in connection with a contract, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

Unfortunately for the husband, the Tribunal was not on-side with his argument.  It advised the husband that it was planning to dismiss his discrimination-based application, because the respondent was his spouse or former spouse. As the Tribunal put it:

The Tribunal does not have a general power to inquire into all relationships and all difficulties that may occur in those relationships. The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in the social areas of “employment”, “goods, services and facilities”, “accommodation” (housing), “contracts” and “membership in vocational associations”.

Adding that the husband’s materials failed to point to any connection between this treatment and any social area covered by the Code, the Tribunal wrote:

The personal relationship between the applicant and his former spouse is not covered by the Code. I therefore find that it is plain and obvious that the Tribunal does not have the power to decide the allegations against her.

That “plain and obvious” threshold was the legal test for whether the Tribunal could dismiss the husband’s case, since it was clear on the face of the application that it did not fall within the Tribunal’s jurisdiction.  The Tribunal accordingly dismissed his application outright.

For the full text of the decision, see:

Meldrum v. Brown

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 RussellAlexander.com

Wednesday’s Video Clip: How Long Does Child Support Continue in Ontario

Wednesday’s Video Clip: How Long Does Child Support Continue in Ontario

In Ontario, child support must be paid as long as the child remains a dependent.

In this video, family lawyer Russell Alexander discusses how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

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 RussellAlexander.com

 

Is $500,000 Loan for Husband’s Taxi License Loan Deductible for NFP?

Image result for taxi

Is $500,000 Loan for Husband’s Taxi License Loan Deductible for NFP?

The story in Leu v. Joca begins this way:  More than 20 years ago, the husband borrowed $66,000 from his parents to get a Taxi License, which would be taken out solely in his name. The loan was documented in a Demand Note, with interest being set at prime-plus-5 percent, payable on demand.   It was initially registered for a five-year term under the personal property security legislation, but it was never renewed, and no security was registered in respect of it.

During the span of the couple’s marriage, the husband never made any payments on this loan, nor did his parents every make any demands to have it repaid.

However, the couple separated after 24 years. By this time, interest had accumulated, and the value of the loan had ballooned to almost $513,000, a figure provided in a discharge statement prepared by husband’s mother’s lawyer.

The now-separated spouses went to court for assistance in equalizing their Net Family Property (NFP), most notably the proper manner in which to treat that Taxi License Loan.

The husband asked the court to verify the existence and have it valued at $513,000; more importantly he asked the court to confirm that, for NFP purposes, he could deduct it to reduce the shareable part of his property.  The wife, not surprisingly, asked the court to give the Taxi License Loan a value of zero, for NFP-calculation purposes.

The court, looking at all the circumstances, endorsed the wife’s position.  It concluded this was a valid loan from the husband’s parents – not a gift.  This outcome was supported by the existence of the signed demand note, the registration under the personal property security legislation, and the prepared discharge statement.  More to the point:  The facts showed that the parents expected repayment, and the husband believed he was obliged to repay them.

However, the court pointed out that since more than 20 years had passed since the funds were actually advanced, the husband’s parents would have little chance of actually recovering the funds by way of a notional court action, since the 6-year limitation period for suing on the loan had expired.  The clock started ticking on the limitation period on the date the funds were advanced.

In other words:  The parent’s loan to the husband was valid, but legally uncollectable.

This being the case the loan was not deductible, because only legally-enforceable debts were eligible to be treated that way.  This loan had effectively expired, and was no longer a debt that the husband owed.

The court accordingly set the value of the loan as zero for NFP purposes.  On the other hand, the court accepted the evidence of an expert as to the value of the Taxi License itself, attributing $171,000 as of the separation date.  This amount was factored into the husband’s NFP.

The court went on to settle other aspects of the spouses’ respective NFP, and granted summary judgment, accordingly.

For the full text of the decision, see:

Leu v. Joca

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 RussellAlexander.com

 

Is $122,000 a Month in Interim Support Excessive?

Image result for real estate

Is $122,000 a Month in Interim Support Excessive?

In a blog last week, I wrote about the recent decision in Zavet v. Herzog, which was essentially an Estates matter where the key “players” were:  1) Sam, the now-deceased successful real estate developer worth at least $200  million; 2) his Estate Trustee, who was his wife Dianne from whom Sam had been separated for over two decades; and 3) Alona, his longtime girlfriend.

Sam had not made provision for Alona in his Will, so she was bringing various claims against his Estate.

The matter was in the very preliminary stages, mainly because evaluating Sam’s extensive investments, corporate holdings, and sizeable assets was going to take a great deal of financial leg-work.  To tide her over until that work was complete, Alona had already been given $900,000, and her expenses for cellphone, health insurance, car insurance and gas were being paid directly by the Estate.

Still, Alona launched a motion asking the court to award her interim support from Sam’s Estate, pending the full hearing of her application for support as a “dependent” under the provincial Succession Law Reform Act.  (This legislation allows a dependent to apply for support from a deceased’s Estate in cases where the deceased has not made adequate provisions for the proper support of that dependent.  The test is whether Alona “is in need of and entitled to support.”)

Dianne, in her role of the Estate Trustee, opposed the amount of interim support Alona was requesting, claiming that it was “unrealistic and unreliable.”

The court agreed.  It ultimately rejected Alona’s budget entirely, stating that “[b]esides being inaccurate and overstated, it is unsubstantiated. It is not an accurate estimation of her needs pending return of the [dependent’s support] Application, many of which, in my view, have already been provided for.”

As the court explained:

In my view, Alona’s motion for interim support is premised on the basis that the Estate has lots of money and she is entitled to continue to live the lifestyle that she says she and Sam were living before his illness. …

As a result, I consider Alona’s budget to be of no assistance. In addition, I do not consider it to be an accurate reflection of her actual monthly expenses. Alona has little to no experience in managing money or preparing budgets. She stated in cross-examination that she kept no personal or financial records. The budget was composed by her without any reference to any specific documentation. She initially produced very few records. Although requested, she brought no documentation to her cross-examination. …

Noting that Alona’s documents were disorganized and didn’t “come close” to substantiating her budget numbers, the court concluded they were “grossly overstated.”  It gave the following illustrations:

–         $5,000 per month for groceries; $13,200 per month for meals outside the home; $2,500 a month for a private chef; and $4,000 a month for her Four Seasons account which includes mainly in-room dining (in excess of $20,000 a month for food);

–         $1,700 per month for pet care. The only pet living at the Condo is [her son’s] dog which Alona says is really the family dog. It been living with [her son] since 2011;

–         $700 a month for public transit and taxis and $4,000 a month for a driver although she owns a 2014 California Ferrari and a 2017 Bentley Bentayga;

–         $31,250 per month for clothing, purses and shoes;

–         $2,500 a month for eye care (contact lenses, sunglasses and reading glasses);

–          $3,000 a month for charities.

The court noted Alona was also unable to show how she had spent the initial $900,000 that she had already received since Sam’s death.

Nonetheless, the court did acknowledge that Alona was entitled to a further monthly amount to meet her needs pending the hearing of the larger Estates applications.  It awarded her $30,000 per month for this purpose – an amount that was admittedly “somewhat arbitrary”, but one that was based on some of the documented expenses Alona was able to submit.

For the full text of the decision, see:

Zavet v. Herzog

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 RussellAlexander.com

 

 

Wednesday’s Video Clip: How Family Run Businesses can Survive and Thrive after Divorce

Wednesday’s Video Clip: How Family Run Businesses can Survive and Thrive after Divorce

One of the common fears of clients who own family-run businesses is how a divorce will affect the business they have spent their life building. While business owners have control over the work they put into their business and the legacy they are building for their family, they may have little influence over a relationship breakdown. The worry in regards to the effects of this breakdown on a business can cause additional stress above and beyond the heartache associated with restructuring a family.

In many family law matters involving children, the spouses are able to agree to cooperate in order to address the best interests of the children. In many ways, a family business can be used as a similar incentive: spouses can agree to cooperate in order to address the best interests of the family business. While fueling conflict is an almost unavoidable side effect of the court system, a collaborative approach is a very effective method in reducing the impact of separation and divorce on family run businesses. This process seeks to ensure that the business remains viable for both spouses, as well as future generations.

As an alternative to a purely rights based approach, other options can be considered in the collaborative approach, including:

• Family trusts or holding companies as a method of sharing income from the family business

• Tax planning, avoiding the possibility of triggering a Canada Revenue Agency audit

• Considering the formation of a new family trust

• Employment of children in the family business

• Estate, succession, and capacity planning

• Ensuring insurance is in place to cushion the effects of any risks

• Gifting shares or portions of the family business to children or other family members

• Maintaining the privacy of the family business

• Managing the continuation of income streams

• Splitting income amongst family members

• Delaying equalization or sharing business payments (Ie: if and when the family business sells)

• Preserving the family legacy for generations

• Recognizing and predicting the ebb and flow of the market and business patterns Unlike the court system, the collaborative process is unique in that it offers the additional benefit of involving neutral professionals.

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 RussellAlexander.com

 

A Crash Course on Paying for Kids’ Post-Secondary Education

Image result for college

A Crash Course on Paying for Kids’ Post-Secondary Education

It’s almost back-to-school time, and with it comes the usual surge of expenses for parents. For separated or divorced parents of older children, the allocation of education costs can be contentious, particularly if the child has already completed one university or college degree, and is embarking on a second degree.  A very common question arises in this scenario:

Under what circumstances do parents have to pay for their adult child’s post-secondary education?

The recent decision in an Ontario case called Laramie v. Laramie is a goldmine of information on this narrow legal issue. Here are some of the main points of the court’s own summary:

  • An adult child undertaking educational studies may trigger a right to child support, but it is not automatic. The question is whether the child is “unable” to withdraw from parental charge.[1]
  • An adult child who looks to their parents to continue to support them through their advanced studies cannot claim indefinite dependency while engaging in “half-hearted or ill-conceived educational endeavours.”[2]
  • The test is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.”[3]
  • The factors that courts consider in determining entitlement for children enrolled in post-secondary studies include, without limitation, the following:
    • Is the child actually enrolled? Is it a full- or part-time program?
    • Has the child applied for or received student loans, bursaries or scholarships?
    • Can the child contribute to his or her support through savings or part-time work?
    • Does the child have a reasonable and appropriate education and career plan? Or do they just have nothing better to do?
    • Is their primary focus on school? Or is it primarily on career, with school being secondary?
    • What are the benefits, costs, and prospects of the success of the child’s education plan?
    • Is this the child’s first post-secondary degree? Or is it an extended graduate program?
    • Is the child engaging diligently in his or her studies? How is their academic performance?
    • What is the child’s age, qualifications, aptitude, level of maturity, sense of responsibility, and experience?
    • What are the means, needs and other circumstances of the parents and the child?
    • Is the child willing to remain reasonably accountable to the parents with respect to their education plans and progress?[4]

Note that not all of these factors have to be considered to show a child’s entitlement.[5]  A child who is diligently pursuing studies, in a suitable program, will generally be entitled to support for the first college or university program.[6]  This will involve a reasonable degree of attendance, involvement, engagement and success in the program, in light of the child’s overall circumstances.

For the full text of the decision, see:

Laramie v. Laramie

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 RussellAlexander.com

 

[1] Jackson v. Jackson, 1972 CanLII 141 (SCC), [1973] S.C.R. 205 (S.C.C.);  Menegaldo v. Menegaldo, 2012 ONSC 2915 (CanLII), 2012 ONSC 2915 (S.C.J.) at para. 157.

[2] Kohan v. Kohan, 2016 CarswellAlta 736 (C.A.).

[3] Geran v. Geran, 2011 SKCA 55 (CanLII), 2011 CarswellSask 333 (C.A.).

[4] Whitton; Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master); Geran; Rebenchuk; Haist v. Haist (2010), 2010 ONSC 1283 (CanLII), 83 R.F.L. (6th) 147 (Ont. S.C.J.); Caterini v. Zaccaria, 2010 ONSC 6473 (CanLII), 2010 CarswellOnt 9344 (S.C.J.);  Menegaldo; Charron v. Dumais, 2016 ONSC 7491 (CanLII), 2016 ONSC 7491 (S.C.J.); Kohan v. Kohan, 2016 CarswellAlta 736 (C.A.).

 

[5] Darlington v. Darlington (1997), 1997 CanLII 3893 (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A);  Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4th) 435 (B.C. S.C.) at para. 11.

[6] Achkewich v. Achkewich, 1998 CarswellAlta 1275 (Q.B.); Marsh v. Jashewski, 2011 ONSC 3793 (CanLII), 2011 ONSC 3793 (S.C.J.); Caterini; Metter v. Solomon, 2005 CarswellOnt 986 (S.C.J.).

Court Bars Condo Guests from Posting Interior Pics on Social Media

Image result for real estate law

Court Bars Condo Guests from Posting Interior Pics on Social Media

The recent ruling in Zavet v. Herzog involved a preliminary motion brought by a woman named Alona, who was the long-time common-law partner of a very successful real estate developer named Sam.  Although the Estate was still in the early stages of untangling his extremely complex business affairs (with Sam’s separated wife Dianne being named as his Estate Trustee), the early figures showed that Sam had amassed a fortune of over $200 million during his lifetime.  Sam’s Will made no provision for Alona, even though they had been living together for at least 12 years at the time of his death.

Pending the full resolution of issues arising from the Estate distribution, Alona had obtained a court order entitling her to continue to live in Sam’s 5,000 square-foot Condo in the Four Seasons in Toronto for the interim. Her 29-year-old son Michael was also living there, with his girlfriend and their dog.

Although the Estate Trustee had acquiesced to that arrangement until the Estate matters were unwound, she did take umbrage with something else:   It seems that Alona had hosted a charity event that ended up all over social media.  As the court explained:

The Estate’s motion arises as a result of Alona and her family’s use of the Condo and specifically a public fundraising wine tasting event that was hosted by [Alona’s son] Michael on October 28, 2017 at the Condo.  The event, which normally costs $5,000 a couple, was reduced to $500 per person to attract a younger crowd. There is no evidence of how many people attended the event but photographs of it showing a number of different people in attendance were posted on social media. The photos contain images of the interior of the Condo, including valuable art work, furnishings, sculptures, antiques, fixtures and crystal. In addition, Tillie, who is an aspiring model, has posted professional pictures on social media taken of her in the Condo to promote her career.

As a result, the Estate Trustee wanted a court order:   1) prohibiting Alona from hosting, or permitting public- or semi-public events at the Condo, and 2) making it a condition of Alona’s occupancy that other residents of the Condo shall not make any social media posts showing the Condo’s interior – including but not limited to Instagram, Facebook and Twitter.

Admittedly, the charity event was very prestigious, and raised a significant amount for a Toronto hospital.  Alona also pointed out that her use of the Condo was unrestricted, that she had been granted sole possession by a court, and that she had Sam had hosted charity events while he was alive.

The court had urged the parties to try to come to terms, they were unable to agree on how many people could attend the Condo at any one time, and whether there should be any restriction on posting pictures of the interior of the Condo on social media.  In the court of resolving the impasse, the court stated:

In my view, the answer to this issue lies in a balancing of the interests of both Alona and the Estate in the interim period. On the one hand, Alona is entitled to sole possession of the Condo. On the other hand, given the valuable nature of the Condo and its contents, the Estate has an interest in not having it opened to the public or pictures of the interior displayed on social media.

While I do not think it is appropriate during this interim period for Alona or her son to host public fund raising events at the Condo, it is reasonable for her to be able to host family events and dinner parties for her friends. Alona submits that the number of people should be 25 and the Estate submits 15. I prefer the Estate’s number. It is large enough to permit family and friends without being excessive. Accordingly, Alona shall be permitted to entertain a maximum of 15 people at any one time at the Condo.

As for the social media aspect – and in dismissing Alona’s objections over the challenges of enforcing any restrictions – the court said:

Further, I do not accept Alona’s submission that a restriction in connection with posting on social media of pictures of the Condo interior is simply unenforceable in respect of today’s young people. There is no reason or need for the occupants of the Condo or their families to post pictures of the interior of the Condo on social media. To the extent they do, they run the risk that they will no longer be entitled to occupy or attend at the Condo.

I agree that guests are a different matter in that they are more difficult to supervise. That said, there is no reason that they would not respect their host’s wishes, particularly given they emanate from a court order. Accordingly, the occupants shall be required to advise any guest of the restriction that pictures of the interior of the Condo, either directly or indirectly, cannot be posted on social media. Again, I do not consider that such a restriction is too onerous or unenforceable.

For the full text of the decision, see:

Zavet v. Herzog

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 RussellAlexander.com

 

Wednesday’s Video Clip: How Long Does Child Support Continue in Ontario

Wednesday’s Video Clip: How Long Does Child Support Continue in Ontario

In Ontario, child support must be paid as long as the child remains a dependent.

In this video, family lawyer Russell Alexander discusses how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

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 RussellAlexander.com

 

Children and the Legal System — Appeal Court Rules on Kids’ Privacy and the Role of the OCL

Image result for parenting

Children and the Legal System — Appeal Court Rules on Kids’ Privacy and the Role of the OCL

Being involved in the Canadian justice system is never easy on anyone. But especially for children, it can have long-range negative impact.  As the Ontario court observed in a case called Graham v. Bruto:

Children are among the most vulnerable members of society. Courts, administrative authorities and legislative bodies have a duty to recognize, advance and protect their interests. When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable. Exposure to conflict has been called the “single most damaging factor for children in the face of divorce.”

Traditionally, the justice system has tried to be sensitive to the vulnerabilities and needs of children.   It features established safeguards around children’s participation in the system, including the protections of the Office of the Children’s Lawyer (OCL), which is an office within the provincial Ministry of the Attorney General.  The role of the OCL, among other things, is to  represent children in various areas of the law, including child custody and access disputes, child protection proceedings, and civil litigation.

A very recent Ontario Court of Appeal decision addresses the parameters around the OCL’s duty toward children, and its ability to release information in its possession that concerns them.

The spark for the analysis was a routine custody and access dispute between a father and the mother of his children.  The OCL had become involved, and appointed the Children’s Lawyer to conduct an investigation, and make a report with recommendations on the issues.   The father wanted to see the notes, records and assessments in the Children’s Lawyer’s files,  including those that had been made by the social worker assigned to the case.

The father made his access-to-information request to the Attorney General for Ontario under the Freedom of Information and Protection of Privacy Act (“FIPPA“), since the OCL is an independent branch of that Ministry.  The OCL claimed that FIPPA did not apply to force disclosure, contending that its role was to independently represent the interests of children.  The Ministry also added that the information was not under its custody or control, so it could not provide the information the father requested.

The Ministry advised the father to seek the information from two different courthouses, where his custody proceedings were being heard.  However, he found that the sought-after information had been removed by the OCL.  The father’s further requests directly to the OCL were refused.

This prompted a legally-complex hearing before an Adjudicator appointed though the Assistant Information and Privacy Commissioner.  The key practical issue was whether a child’s litigation records, held with the Children’s Lawyer, were subject to the father’s freedom of information access request. Legally, the issue hinged on whether the OCL documents were in the “custody and control” of the Ministry (which is the wording in FIPPA that triggers certain safeguards around information privacy).  The Adjudicator ordered that they were, and ordered the Ministry to respond to the father’s disclosure request.  A later court upheld the Adjudicator’s order.

This prompted a further appeal to the Court of Appeal, which engaged detailed consideration of several statutes, of federal privacy policy, and of the scope of the OCL’s fiduciary duty to the children it protects and represents.  The issue also required consideration of the scope of the OCL’s independence in relation to the Ministry itself, and of the interplay between various government department roles.

The Appeal Court ultimately concluded that the Adjudicator had erred; the Adjudicator’s ruling was based on a “fundamental misunderstanding of the role and function of the Children’s Lawyer, her relationship to the [Ministry], and her duty to provide children with the heightened protection the law mandates.”

Specifically, the Court concluded that the Children’s Lawyer must operate separately and distinctly from the Ministry, and that when representing children, the Children’s Lawyer is not a branch of the Ministry per se.  Moreover, the father’s request for the documents was really not about privacy (which was the Adjudicator’s realm), but rather related to issues touching on the OCL’s unique role and its duties towards children, which are “fundamental to the proper functioning of our legal system.”

This was beyond the realm of the Adjudicator’s specialized expertise, and her ruling was “not in the best interests of children.”   It needed to be reviewed for correctness since she had taken the wrong approach.  In the end, the Court of Appeal overturned a prior order, and allowed a full judicial review of the Adjudicator’s previous order to take place.

Although it may be currently mired in legal concepts, the outcome of the Appeal Court’s decision is to underline that the best interests of children remain uppermost in the minds of the courts, and by extension in the workings of the judicial system, at least in theory.

For the full text of the decisions, see:

Graham v. Bruto ; aff’d Graham v. Bruto, 2008

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner)

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 RussellAlexander.com

Who Gets Custody of Purchased Embryos?

Image result for embryos

Unique Case Asks: Who Gets Custody of Purchased Embryos?

In a unique contract law case, the Ontario court was asked to rule on which of two former spouses is the “owner” of an embryo created from purchased gametes during their marriage.

During their 10-year union the couple had paid US$11,500 to purchase donated eggs and sperm from a U.S. company.  Four embryos resulted, only of two of which were viable. One was implanted in the wife, and she gave birth to the couple’s son in late 2012.  Less than 10 days later, the couple separated, and an acrimonious divorce ensued.

The wife, now 48 years old, wanted to use the second embryo that remains in storage, with the promise that she would not ask the husband for child support in the future, in the event that the process resulted in the birth of a child.  The husband preferred to have the embryo donated. Neither spouse has a biological connection to the embryos.

To resolve the impasse, the couple appeared before the court, which determined that the matter essentially boiled down to a battle of competing contracts:  The parties had signed one agreement with an Ontario Fertility Center, and had also signed a contract with the U.S. company, each of them purporting to cover what happens with extra embryos. The two contracts were incompatible with each other by their terms, so the court was asked to determine which of them governs the situation.

Under the Ontario contract, the parties agreed that in the event of separation or divorce, the wishes of “patient” – which was contractually defined as being the wife – would be respected. The wife naturally urged the court to endorse this contract, allowing her to keep the last embryo; she also pointed out that it was made from the same genetic materials as the parties’ son, who would benefit from having a sibling.

The U.S. contract stipulated that the embryos were “property” and gave options on how they were to be disposed of.  The parties chose “donation” in the event they were unable to agree. In the event of separation or divorce, the contract put the responsibility for deciding on a court, and eliminates consideration of the parties’ wishes.   The husband argued in favour of this U.S. contract being approved by the court, and pointed out that he had himself paid the entire purchase price for the embryos, arguing they were therefore his “property.”

In settling this novel dispute, the court started its ruling this way:

There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.

The court noted that Canadian federal law actually makes it illegal to purchase and sell embryos; however, that was not a legal impediment to making a ruling here.  Under either contract, the parties had agreed between themselves that the embryos would be treated as “property”. Ontario provincial family legislation addressed some property-division issues, but since there was only one embryo, it could not be split or sold in the customary way.

In short:  since the embryo could not be divided, nor could it be sold and the proceeds divided, the ownership had to be determined by what the former couple intended.  This could be determined solely by looking at the contracts they had signed. Neither of them argued that they had been unduly influenced when doing so, that they did know what they were signing, or that there were other reasons to suggest the contracts were invalid.

Looking at their wording, the court concluded that the Ontario contract which called for respecting the “wishes of the patient” had to govern. (And it added as an aside, that the best interests of the couple’s existing son was not a relevant consideration to this outcome).

This meant the embryo was to be released to the wife.   However – and despite the sale of embryos being illegal – the court still had to acknowledge that the husband had paid for the embryo, and that it was property. It therefore ordered the wife to reimburse the husband for his monetary contribution:  Since four embryos cost US$11,500, the husband’s half-share of the one remaining embryo would be US$1,438 USD.

For the full text of the decision, see:

S.H. v. D.H.

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 RussellAlexander.com