Calling all armchair legal experts! How would you rule on this scenario?
Here are the facts:
- The spouses married in 1995, and separated in August 2011. They started negotiating a Separation Agreement soon after.
- Part of that draft Agreement envisioned that the wife would pay the husband $117,000 to buy him out of his interest in their matrimonial home. The husband had told her he wanted to stay in the home after their separation and divorce.
- In reliance of the husband’s stated intentions, the wife started looking for a new place to live. In September of 2011 she found a suitable home (the “Claridge home”), and put down a $25,000 deposit, which she borrowed from her mother. The closing date was October 2011.
- She also arranged for a $354,000 mortgage, but it was subject to her providing the lender bank with a signed Separation Agreement, indicating that the husband was releasing her for any liability on the mortgage over their matrimonial home.
- The husband refused to sign. He claimed he was not on-board with the stated separation date in the Agreement, as currently drafted.
- The wife’s mortgage fell through – and with it, her intended purchase of the Claridge home. The wife had to forfeit the $25,000 deposit she had paid to the seller.
These were the facts in a recent Ontario case called Boyer v. Brown. Among the questions for the court:
- Should the husband (referred to as Mr. Brown) be ordered to reimburse the wife (Ms. Boyer) for 50 percent of the $25,000 deposit she had to forfeit?
Perhaps surprisingly, the court’s answer was: “No.”
The court found that the wife had acted precipitously, by arranging a mortgage that was predicated on getting her husband’s signature on the Separation Agreement. Knowing his personality, she should have known that this task would “not be straightforward”. As the court explained:
By 2011, Ms. Boyer and Mr. Brown had been married for 16 years. Based on the duration of the marriage, I draw an inference and find that Ms. Boyer had some appreciation for Mr. Brown’s personality, Mr. Brown’s emotional state after learning of her infidelity, and the likelihood that finalizing a separation agreement with Mr. Brown would not be straightforward.
Ms. Boyer initially believed she would be the party to move out of the matrimonial home. In the circumstances, she may well have been anxious to do so. I find, however, that, before the parties had finalized the terms of their separation, Ms. Boyer made a unilateral decision to pursue the purchase of another home. She made the down payment on the Claridge home at a time when the parties’ future circumstances remained uncertain.
The court accordingly dismissed the wife’s claim against the husband for half of the $25,000 downpayment she lost.
If you were the judge in this case, would you have come to a different conclusion? What are your thoughts?
For the full text of the decision, see:
Boyer v. Brown, 2023 ONSC 3905 (CanLII), <https://canlii.ca/t/jzpr8>
