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Can Second Wife Foil Court Order Securing First Wife’s Support?


Can Second Wife Foil Court Order Securing First Wife’s Support?

In Watkins v. Watkins – which essentially pitted the rights of a man’s first wife against those of his second one – the court considered whether it could encumber a matrimonial home, even if spouses were prevented from doing so.

In that case, in connection with his home the husband was ordered by the court to sign a collateral mortgage in favour of his first wife, from whom he was now divorced. This was intended as security for what he owed her for existing and future spousal support, child support, and legal costs.

However, because he was now married to a second wife – and even though the home was owned solely by him – it was considered a “matrimonial home” under the Ontario Family Law Act, and was therefore subject to the special rules governing its sale, disposition or encumbrance. In particular as I’ve written before, the second wife was legally required to give her consent to the collateral mortgage.

However, the second wife refused to do so, fearing that in the future the home might be sold under the collateral mortgage, thus jeopardizing the security that she and their child have. (Apparently, even though she did not own the home herself, she had put a lot of work into it). Without the second wife’s consent, the Land Registrar refused to register the collateral mortgage.

The husband brought a motion to the court, asking for it to dispense with the second wife’s consent and authorize the collateral mortgage registration in the first wife’s favour.

In granting the husband’s request, the court looked at the purpose of the Family Law Act: It was designed to limit what a spouse was allowed to do in terms of encumbering the home; it was never intended to foil a court’s ability to secure one spouse’s financial obligation to the other.

In this case, the court had itself created the husband’s liability in the form of the collateral mortgage, regardless of what the husband wanted. The order stemmed from the court’s own initiative and by virtue of a prior court order, and – in legal jargon – arose “by operation of law”. The husband had no intentions of his own in this regard.

With this in mind, the court was fully entitled to impose a charge on the home in the form of the collateral mortgage, as a means of enforcing the husband’s legal support obligations to the first wife. The second wife’s consent was accordingly dispensed with and the collateral mortgage was duly registered by court order.

For the full text of the decision, see:

Watkins v. Watkins, 2014 CarswellOnt 5287, 2014 ONSC 2506

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 our main site.


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About the author

Russell Alexander

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