Property Division, Sharing & The Matrimonial Home

Did Husband Get to Share in Wife’s $2.1 Million Lottery Win?

Written by Russell Alexander / (905) 655-6335

$2.1 Million Lottery Win

In Family Law, it’s not a common predicament – and it might even be an enviable one.  But the legal question of how to allocate lottery winnings between separated spouses is always interesting. 

In an older case called Hamilton v. Hamilton, the court was faced with the important task of ruling on exactly when the parties separated, since this had a big impact on how their equalization calculations would proceed in light of the wife’s lottery windfall. 

The court introduced its decision this way: 

“Money does not buy happiness.” This case confirms that old adage. Mrs. Hamilton won the lottery: she won $2.1 million on September 24, 1997.

The winner(s)

Although the spouses were agreed on the date of the lottery win, they differed sharply on their date of separation:  The wife claimed it was before the win, in 1996; the husband said they split afterwards, in 1998.  If the husband’s version was correct, then the sizeable winnings would form part of the wife’s pre-separation net family property, and would be subject to equalization in the husband’s favour. 

The court looked at the facts.  In the years leading up to the demise of their relationship, the husband was developing a restaurant and business in his native Jamaica.  He travelled back there periodically, sometimes with the wife, but oftentimes alone.  But during those years his total time in Jamaica amounted to only a few weeks per year.  

The court explains

But all that apparently changed in late 1996, as the court explained:

While Mr. Hamilton claims that nothing significant happened in November of 1996, the date claimed by his wife as the date of separation, I find that by that time he had, in reality, permanently moved back to Jamaica and begun a new life working on the business and restaurant. I find that Mr. Hamilton by this time had asked his wife for a divorce, but she did not proceed with it only because she could not afford it. On the facts as I find them, the two were clearly separated by this time.

The court arrived at this conclusion despite the husband’s periodic visits back to Canada 1997 and 1998, which usually involved staying at the wife’s home. But in the court’s view these short visits not indicate the marriage was continuing. The wife merely allowed them because the husband needed a place to stay, and it meant he could spend time with their son.  The wife’s hospitality was merely a reflection of her generosity toward the husband. It did not involve them sleeping in the same bed, nor resuming sexual activities as they had when living together.  Indeed, they were both continuing to discuss divorce at the time, and the husband was aware the wife was dating someone new. 

The court also noted that in the 20 months prior to the husband’s asserted separation date in 1998, he has spent only a few months in Canada, and even then it was only to obtain supplies, visit his son, or attend the Caribana festival in Toronto. 

In making these findings, the court also remarked on the husband’s lack of credibility on the key issues, and noted he had also fallen short on his support obligations during the relevant times. As the court wrote:

Mr. Hamilton’s cross-examination, on his prior affidavits and on his examination for discovery, clearly indicated that he was willing to alter his version of the events in order to suit the purpose of his evidence. Repeatedly through his cross-examination he was faced with inconsistencies on points about which he could not have been mistaken, such as funds he had available by January 1988, or the amount of time he spent in Jamaica prior to 1996. He repeatedly said that he was “sorry, that he made a mistake” but I was driven to the conclusion that his evidence was tailored in order to assist his case. It is clear to me that from December 1995 through to July of 1997 he paid minimal child support and the bulk of the financial and emotional obligations of childcare fell on Mrs. Hamilton during that time period.

On an entire view of the facts, the wife clearly considered the lottery windfall as being hers alone.  This was supported by a great deal of evidence, including her taking steps to put the funds in a joint bank account she held with her son, rather than in an existing joint account with the husband. 

In the end, the court rejected the husband’s bid to have the $2.1 million lottery win included in the equalization calculation. 

Full text of the decision: Hamilton v. Hamilton, 1999 CarswellOnt 1580, [1999] O.J. No. 1889.

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About the author

Russell Alexander

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