Divorced, Recognized with Most cancers, and Too Late to Obtain $400k

The divorce course of is commonly a protracted and depleting one. It may well take its toll on even the healthiest of {couples}. This current case reveals a former couple that managed to stretch this course of to the (close to) bitter finish, even within the face of great well being challenges. 

The pair had separated after about 20 years of marriage. Though their relationship had traditionally been rocky, their present-day divorce points (like little one and spousal help) had been now largely resolved. 

One key remaining difficulty was whether or not the spouse owed the husband about $400,000 that he had given her in the course of the marriage in 2013, for her daycare enterprise. Sadly, it had turn out to be difficult to resolve this difficulty in court docket, as a result of the husband had been not too long ago recognized with most cancers. 

The court docket launched the case this fashion: 

It is a unhappy case.  The husband may be very in poor health.  He’s in his mid-sixties and is present process remedy for superior most cancers.  The spouse is 9 years youthful than the husband and operates a licensed daycare enterprise.  They married in early 2007 and separated, on the newest, in 2018. They share a toddler collectively, a younger man who will likely be 18 years previous in just a few months.

Nonetheless, the litigation rages on, even in some situations when the husband is just too sick to attend the proceedings. 

The husband was at present residing in his dwelling in Collingwood, and was ineligible to drive or get life insurance coverage.  Nonetheless, the court docket accommodated his sickness in setting listening to dates; it even lamented the proof he had gave just a few months earlier in mid-2022, earlier than he knew of his prognosis: 

When the husband testified in April 2022, we didn’t find out about his superior most cancers analysis.  Trying again on his proof on the time, nevertheless, it’s unhappy to be reminded of what he stated.  He described then some ache in his higher belly space and a current hospitalization for that ache (the most cancers is in his abdomen space).  He additionally described an enlarged prostate, again issues, arthritis, hypertension, gastrointestinal issues, and despair and nervousness. …

After a prolonged hiatus, this trial resumed on September 13, 2022.  The husband introduced then with an look that was strikingly totally different than when he had testified again in April 2022.  He was visibly a lot thinner, with vital hair loss, and he regarded extraordinarily in poor health. This Court docket granted permission for the husband to be re-called as a witness, topic to cross-examination, to provide to the Court docket some proof about his present medical circumstances.

The husband testified that he has been recognized with most cancers.  A mass was present in his abdomen space simply earlier than he testified in April 2022, and in reality he was taking morphine on the time that he testified in April 2022.  Shortly after that trial testimony, the formal analysis was made.  He’s now taking chemotherapy.  He continues to take morphine.  His life expectancy is unsure.

Towards the background of this medical improvement, the court docket turned to the duty of assessing the spouses’ respective authorized arguments.  

The husband claimed that the $400,000 he gave the spouse in 2013 was a mortgage, not a present.  He stated it was at all times the expectation that it might be repaid. In proof, he pointed to an unsigned promissory word, and a requirement letter his lawyer despatched the spouse in 2020.  He additionally provided up a 2019 textual content from the spouse that each acknowledged the mortgage, and proposed methods to repay it. Lastly, he had a number of witnesses, together with his monetary advisor and a relationship counsellor, who attested to the mortgage’s existence.

In distinction, the spouse admitted she did owe the husband about $40,000 that she had borrowed for her daycare enterprise over time – however not $400,000.  There was by no means any dialogue a few mortgage, safety, or a private assure for that quantity, she stated.  Whereas she admitted acquiescing to her husband’s point out of a “mortgage” over time, this was solely as a result of she didn’t need to “rock the boat”.  She additionally disputed the authenticity of the 2019 textual content message the husband was counting on. 

The court docket examined these conflicting variations, and flatly stated: “Though a lot time was spent on this difficulty at trial, it’s not notably troublesome to determine.”   It readily concluded that the $400,000 given in 2013 was certainly a mortgage to the spouse – and on this level it expressly accepted the supporting proof of the monetary advisor and relationship counsellor.  

However the authorized consequence all boiled all the way down to timing:  The husband was statute-barred from attempting to recoup the $400,000, below the two-year limitation interval discovered within the provincial Limitations Act, 2002.  Because the court docket defined:  

Apart from the $40,346.00, which sum this Court docket couldn’t in good conscience deny to the husband given the spouse’s personal statements to her accountant [that she owed that amount], the husband is simply plain out of time.  His declare is framed in contract and debtor/creditor ideas.  It’s clearly topic to the two-year limitation interval.  That limitation interval expired earlier than the declare was made.

The husband has excellent counsel; he ought to have made all the information recognized to his lawyer, … lengthy earlier than I believe he did. The result’s unlucky for him.  

On the very newest, the relevant two-year deadline had began to run when the couple separated again in 2018.  This meant it had lapsed lengthy earlier than the husband commenced his lawsuit to recoup the cash.   

After concluding “there’s nothing that this Court docket can do to help the husband”, the court docket ended by admonishing each spouses: “It’s time to finish the litigation, for the sake of the well being of the husband and for the sake of the kid”.

Full textual content of the choice: T.O. v. D.O., 2022 ONSC 5896 (CanLII)