Court Cases & Orders Property Division, Sharing & The Matrimonial Home

Battle of the Ex-Spouses – Who Gets the $2.4 “Prize”?

Written by Russell Alexander / (905) 655-6335

Battle of the Ex-Spouses – Who Gets the $2.4 “Prize”?

In a contest between two former spouses, which of them gets the deceased husband’s $2.4 estate? That was the question for the court in a recent Ontario case called Quinn v. Carrigan.

The man, Ron, had been estranged for 12 years from his first wife Melodee, with whom he had two now-adult children. They did not divorce or even enter into a formal separation agreement, but Ron promised that he would always support her. For the last 8.5 years of their separation, he had been living common law with another woman, Jennifer, who had a limited income and medical problems. At the time of his sudden death from a heart attack at age 57, Ron was the sole financial support for both women.

After Ron died, it came to light that he had left nothing in his will or pension for Jennifer; instead, he left his whole $2.4 estate to Melodee and their daughters. He also gave a 1/3 share of his $1 million pension to each of them. The title to the condo that he and Jennifer lived in together at the time of Ron’s death was actually in his and Melodee’s name.

Jennifer applied under the Ontario Dependent’s Relief Act, which allows a court to order Ron’s estate to pay her support – whether or not he left a Will – in cases where he failed to adequately provide for her financially. The court awarded her $350,000 to be paid from Ron’s estate and pension.

But after two trials, and two appeals, the true legal characterization of Jennifer’s status for claiming under the estate and pension was still uncertain. Under pension legislation, for example, the question of who was Ron’s “spouse” was unclear: at least one earlier court had found that it was Jennifer (who had been living with him in a common-law relationship at the time of Ron’s death) rather than Melodee (who was technically still married to him). A later appeal ruling had overturned that finding, concluding that the mere fact of living with Ron did not turn Jennifer into a “spouse” for pension purposes.

Returning to the dependent’s relief application (which was separate from the pension issue), the court reviewed the complex details of Ron’s estate and the various holdings, expenses and entitlements of both spouses and the adult daughters. Although Ron was certainly entitled to arrange his estate so that his first wife Melodee receive the bulk of it (and that it would eventually trickle down to his children and grandchildren), his wishes could not ignore or override Jennifer’s valid legal claims. While there was evidence that he intended to provide for Jennifer somewhat, those intentions were never implemented and in any event they would not have been enforceable unless Ron made full disclosure to her of his substantial wealth (which he did not want to do) and unless she obtained independent legal advice (which was never done).

The court explained that under that same dependent’s legislation, Melodee was still entitled to a “preferential share” of Ron’s estate; however, it was unfair to ignore Jennifer’s support entitlement, particularly since she was in poor health and impoverished. (She had returned to work shortly before Ron’s death, but had lost her job due to an economic downturn. Her health concerns also limited her employment prospects, and had no assets other than her personal belongings, and had some debts. In contrast, the first wife Melodee and the daughters were living comfortably).

Ultimately – and after some complicated analysis – the court allowed Jennifer’s appeal, and awarded her $750,000, comprised of $550,000 for her legal entitlement to spousal support (calculated using the Spousal Support Advisory Guidelines and based on Ron’s significant annual income) plus another $200,000 reflecting her “moral claim” to Ron’s estate.

For the full text of the decision, see:

Quinn v. Carrigan, [2014] O.J. No. 4589, 2014 ONSC 5682 (Div. Ct.)

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About the author

Russell Alexander

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