Top Five Lottery Cases in Family Law
Lottery wins are a once-in-the-lifetime stroke of good fortune. (At the least, they certainly happen less frequently than anyone hopes). But in the case of married or common-law couples who buy the winning ticket, the joy of having a monetary windfall can quickly become tainted if they later separate or divorce, because issues often arises as to who gets the money, or how it is to be split.
So, in the unlikely event that these become relevant to our readers, we present these top five interesting lottery cases from across Canada:
1) Barkacin v. Wasiak
In this decision before the Ontario Court of Appeal, the husband moved from Turkey to join the wife in Canada, where they got married. However, seven years after marriage the husband obtained a divorce, which the wife claimed not to know about since they still lived together. Ten years after that, the husband bought a lottery ticket and although he checked the numbers, he forgot to check the “Encore” portion of the ticket, which – as the wife later discovered upon taking it back to the store at the husband’s request – turned out to be a $1 million winner. The wife claimed the husband had given her the ticket as a gift, but reluctantly gave him $300,000 out of the winnings. However, when he asked for his equal share of the prize, she refused. The parties fought, and the husband left the house and sued for half the prize. Despite the divorce and unusual living arrangements, the parties lived in a spouse-like relationship, and the neighbours noted that they celebrated the lottery win as if they were both recipients of the prize. Overall, the husband had not gifted the ticket to the wife, nor could it be said he abandoned it, so it was to be shared equally.
2) Thompson v. Haley
When the man and woman decided to live together, the woman moved into the man’s house and they pooled their limited resources and shared living expenses. However, they did not set up a joint bank account. They were considered a “couple” by neighbours, but their relationship was volatile and they were both recovering alcoholics. Three years later, the same day the woman found that a lottery ticket she had in her purse was worth $2.1 million, she left the house with all her belongings. The woman claimed that the full amount of the win was hers to keep since she bought and carried the ticket. The man claimed half the prize because of their shared living arrangements and shared financial resources and expenses. The Saskatchewan Court of Appeal confirmed that the parties’ day-to-day living arrangement support the equal sharing of the prize.
3) Souder v. Wereschuk
A man and woman dated for two years, got engaged, but never married. Even though they lived separately and had separate incomes and bank accounts, they began to merge their lives and planned a future together. A few years later the woman bought a lottery ticket which won $750,000. She deposited it into a joint account to which both of them had access. They treated the money as if they both owned it, paid off the mortgage, bought joint GICs, and each bought themselves a new car. After another two years, however, they separated. The man sued for an equal division of the money. After deciding the threshold issue that the parties had an exclusive, committed, common law relationship with a measure of economic interdependence, the Alberta Family Court concluded that they intended to share the win equally.
4) Nisbet v. Nisbet
In this case, the husband and wife married each other late in life, at close to retirement age. It was a second marriage for both. They shared a mutual lifestyle and regularly bought lottery tickets with another couple. Ten years after they married, during a separation that lasted several months, the husband won $560,000 as his share of a winning ticket. The husband and wife reconciled several weeks later and bought a home, a truck and a recreational vehicle with part of the winnings. The husband invested the remaining $150,000 in his name but used the interest for family purposes. When they separated for the final time 12 years later, the wife brought a court claim for half of the remaining lottery money. The husband resisted this on the basis that the ticket had been bought while they were briefly separated, so the winnings were not a family asset. The B.C. Court disagreed; it found that over the years, lottery tickets had been bought from joint funds and that the winning ticket had been similarly paid for jointly, even though technically they were separated. In these circumstances, the wife was entitled to an undivided one-half interest in the winnings.
5) Yamada (Litigation Guardian of) v. Zolad
In this Ontario decision, the husband and wife had been married 15 years when the wife developed Alzheimer’s in 2001. The husband visited the wife almost every day. A year later, he won $1 million in the lottery; a year after that, the wife’s daughter from another marriage moved her to another city. After that point, the husband saw her only once, given that he was confined to a wheelchair by this time. Still, no steps were taken to legally separate, and when the husband died in 2005, he had made provision for the wife in his will. The court found that the husband had never stopped loving the wife, and that – without more – the fact that he been geographically prevented from visiting wife did not mean they that they were separated. The court found that they never were, so the lottery winnings were therefore part of the husband’s net family property and subject to equal sharing with the wife.
Courts across Canada seem willing to go out of their way to ensure that lottery winnings are shared equally between husbands and wives. But like many other areas of law the facts of each particular case will play a significant role in the outcome.
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.
For the full text of the decisions, see:
Barkacin v. Wasiak, 2009 ONCA 807
Thompson v. Haley, 2000 SKCA 70
Souder v. Wereschuk, 2003 ABQB 258
Nisbet v. Nisbet, 2002 BCSC 596
Yamada (Litigation Guardian of) v. Zolad, 2007 CarswellOnt 905 (S.C.J.)
