The divorce process is often a long and depleting one. It can take its toll on even the healthiest of couples. This recent case shows a former couple that managed to stretch this process to the (near) bitter end, even in the face of serious health challenges.
The pair had separated after about 20 years of marriage. Although their relationship had historically been rocky, their present-day divorce issues (like child and spousal support) were now largely resolved.
One key remaining issue was whether the wife owed the husband about $400,000 that he had given her during the marriage in 2013, for her daycare business. Unfortunately, it had become challenging to resolve this issue in court, because the husband had been recently diagnosed with cancer.
The court introduced the case this way:
This is a sad case. The husband is very ill. He is in his mid-sixties and is undergoing treatment for advanced cancer. The wife is nine years younger than the husband and operates a licensed daycare business. They married in early 2007 and separated, at the latest, in 2018. They share a child together, a young man who will be 18 years old in a few months.
Nevertheless, the litigation rages on, even in some instances when the husband is too sick to attend the proceedings.
The husband was currently living in his home in Collingwood, and was ineligible to drive or get life insurance. Still, the court accommodated his illness in setting hearing dates; it even lamented the evidence he had gave only a few months earlier in mid-2022, before he knew of his prognosis:
When the husband testified in April 2022, we did not know about his advanced cancer diagnosis. Looking back on his evidence at the time, however, it is sad to be reminded of what he said. He described then some pain in his upper abdominal area and a recent hospitalization for that pain (the cancer is in his stomach area). He also described an enlarged prostate, back problems, arthritis, high blood pressure, gastrointestinal problems, and depression and anxiety. …
After a lengthy hiatus, this trial resumed on September 13, 2022. The husband presented then with an appearance that was strikingly different than when he had testified back in April 2022. He was visibly much thinner, with significant hair loss, and he looked extremely ill. This Court granted permission for the husband to be re-called as a witness, subject to cross-examination, to give to the Court some evidence about his current medical circumstances.
The husband testified that he has been diagnosed with cancer. A mass was found in his stomach area just before he testified in April 2022, and in fact he was taking morphine at the time that he testified in April 2022. Shortly after that trial testimony, the formal diagnosis was made. He is now taking chemotherapy. He continues to take morphine. His life expectancy is uncertain.
Against the background of this medical development, the court turned to the task of assessing the spouses’ respective legal arguments.
The husband claimed that the $400,000 he gave the wife in 2013 was a loan, not a gift. He said it was always the expectation that it would be repaid. In proof, he pointed to an unsigned promissory note, and a demand letter his lawyer sent the wife in 2020. He also offered up a 2019 text from the wife that both acknowledged the loan, and proposed ways to repay it. Finally, he had several witnesses, including his financial advisor and a relationship counsellor, who attested to the loan’s existence.
In contrast, the wife admitted she did owe the husband about $40,000 that she had borrowed for her daycare business over the years – but not $400,000. There was never any discussion about a loan, security, or a personal guarantee for that amount, she said. While she admitted acquiescing to her husband’s mention of a “loan” over the years, this was only because she did not want to “rock the boat”. She also disputed the authenticity of the 2019 text message the husband was relying on.
The court examined these conflicting versions, and flatly said: “Although much time was spent on this issue at trial, it is not particularly difficult to decide.” It readily concluded that the $400,000 given in 2013 was indeed a loan to the wife – and on this point it expressly accepted the supporting evidence of the financial advisor and relationship counsellor.
But the legal outcome all boiled down to timing: The husband was statute-barred from trying to recoup the $400,000, under the two-year limitation period found in the provincial Limitations Act, 2002. As the court explained:
Aside from the $40,346.00, which sum this Court could not in good conscience deny to the husband given the wife’s own statements to her accountant [that she owed that amount], the husband is just plain out of time. His claim is framed in contract and debtor/creditor principles. It is clearly subject to the two-year limitation period. That limitation period expired before the claim was made.
The husband has very good counsel; he should have made all of the facts known to his lawyer, … long before I suspect he did. The result is unfortunate for him.
At the very latest, the applicable two-year deadline had started to run when the couple separated back in 2018. This meant it had lapsed long before the husband commenced his lawsuit to recoup the money.
After concluding “there is nothing that this Court can do to assist the husband”, the court ended by admonishing both spouses: “It is time to end the litigation, for the sake of the health of the husband and for the sake of the child”.
Full text of the decision: T.O. v. D.O., 2022 ONSC 5896 (CanLII)
