Court Cases & Orders

Court Holds You Can’t Be a “Spouse” and a “Separated Spouse” at the Same Time

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Written by Russell Alexander / (905) 655-6335

Court Holds You Can’t Be a “Spouse” and a “Separated Spouse” at the Same Time

The decision in the early June 2012 case called Wilding v. Wilding is relatively brief, but it brings up a neat little technical point about disclosure obligations in family law matters.

In this case the husband and wife – who had a very acrimonious separation – had several different court cases on the go.  In one of them, the wife sought spousal support against the husband; in the other, the issue was the validity of two wills and powers of attorney that the husband had signed, and who was going to be the beneficiary of his estate when he died.  The need for this second court action arose because the husband had become mentally incapacitated, and a lawyer had been appointed under the Substitute Decisions Act, 1992 to act for the husband and manage his affairs.

Unfortunately, the bitterness between the parties meant that each of them had experienced difficulty in obtaining disclosure and getting relevant information from the other, especially in connection with the validity-of-the-will action. In particular, the wife resisted providing certain information for that litigation, claiming that because she was still the husband’s “spouse”, she did not need to make disclosure of the assets and funds that were still in her husband’s name, but which she herself had kept and controlled when they separated.  In other words, she claimed that since she was still technically the husband’s “spouse”, in that role she was entitled to deal with and manage these funds as she wished.

The court disagreed with the wife’s argument; it emphasized the obligation of both parties to make full disclosure in connection with both court actions.

For example, the wife should have the benefit of full and complete disclosure of all relevant documents pertaining to the medical condition of the ailing husband, and also in connection with the monies that were received and managed on his behalf.    Similarly, the from the incapacitated husband’s perspective the lawyer appointed to manage his affairs was also entitled to receive from the wife all the information needed in order to properly apprise himself with a view towards managing the husband’s funds.

With respect to the wife’s specific argument that she was still a “spouse”, the court observed that she had changed her status from “spouse” to “separated spouse” when she launched her application for spousal support under the Family Law Act, which was one of the court actions that was ongoing.   Legally, it is a pre-condition for anyone making a spousal support claim that he or she be separated.   Therefore, the wife’s separated status, coupled with the fact that she was making the spousal support claim against the husband, put her in a position of being adverse in interest to the husband, and they were no longer on the same “side”.    The wife was now protecting her own interests, exclusively.

As such, the court found that it was reasonable to order that the wife – as an adversary – disclose information that may be relevant to both the spousal support claim, and the will-validity proceeding.  Documents such as bank statements, those relating to the sale of land, and other materials related to the disposition of assets, were all ordered produced by the wife, to be forwarded to the lawyer who had been appointed to act in the incapacitated husband’s stead.  The court wrote:

It is my intention in this order that full disclosure be exchanged between the parties and a full accounting be made by the parties with respect to funds received on behalf of Sydney Wilding and managed on behalf of Sydney Wilding from January 1, 2011 onward.

For the full text of the decision, see:

Wilding v. Wilding, 2012 ONSC 3330

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.