Within the case of Torgersrud v. Lightstone the questions for the Ontario court docket had been comparatively easy: Had been two marriage contracts, signed by a pair in Quebec, nonetheless efficient after they moved to Ontario? And did these contracts function to oust the spouse’s entitlement to about $8 million in equalization below the Ontario Household Regulation Act?
In 1987, the couple had been residing in Quebec. They eloped partly to make the most of a piece alternative for the spouse, who was from one other nation and didn’t have a piece visa.
When the husband’s household came upon concerning the elopement a couple of 12 months later, they insisted he enter right into a separation settlement that will shield the household enterprise. In 1988 he and the spouse signed such a doc, titled “Modification of Matrimonial Property Regime.” The settlement stipulated that they had been “separate as to property”, wouldn’t be accountable for one another’s money owed, and renounced their property rights to “partition of acquests” (the latter being the time period used below Quebec legislation to seek advice from the property accrued throughout marriage). They signed a second comparable settlement in 1990, opting out of Quebec’s patrimony-based household legislation regime that had been not too long ago enacted.
On the time of these 1988 and 1990 Quebec agreements, the spouse had stopped working so she might maintain their kids. Neither of them was conscious of the appreciable inheritances the husband would ultimately be receiving over time, from varied relations. When a few of the preliminary funds began rolling in, the couple used them to purchase a house collectively and for residing bills.
The couple moved to Ottawa in 1993, and had been nonetheless residing there after they separated after almost 30 years. At that time the spouse had $1.6 million in investments, whereas the husband – who did present full monetary disclosure – was estimated to have a number of tens of millions at his disposal.
The spouse utilized for a court docket order, declaring that these Quebec agreements from the early days of their marriage didn’t function to oust her proper to an equalization below the Ontario Household Regulation Act (FLA). That laws would give her the suitable to share within the husband’s belongings, and yield her an equalization fee estimated to be round $8 million.
The court docket thought of the spouse’s argument. It thought of the 1988 Quebec agreements, and located they had been in had been in full compliance the validity necessities in that province. Had they continued residing there, the agreements would have operated to maintain their property separate as supposed.
However since they’d moved to Ontario, the court docket had to have a look at whether or not they had been additionally enough to type legitimate “home contracts” below Ontario legislation. The court docket concluded they did: They had been in writing, signed by the events, and witnessed. In addition they handled elements of property division.
Importantly, nevertheless, the Quebec agreements didn’t function to oust the spouse’s proper to equalization in Ontario, the court docket dominated. They didn’t comprise direct, clear language that will oust the FLA’s equalization regime in Ontario. Because the court docket defined, “there’s a excessive threshold that have to be met earlier than discovering that an out-of-jurisdiction marriage contract prevails over the [Ontario] equalization provisions.” A mere assertion that the spouses had been “separate as to property”, wouldn’t suffice.
There needed to be clear language as to what the couple wished to occur upon marriage breakdown, and a transparent renunciation of their respecting rights in that occasion. In all of the circumstances, the court docket determined it might train the discretion to put aside the Quebec agreements; this meant the spouse might proceed with equalization. That course of would happen at a separate listening to, nevertheless it was estimated that her web equalization fee could be within the vary of about $8 million.
The essential lesson from this uncommon case, is {that a} marriage contract signed by a pair in a single jurisdiction won’t have the supposed authorized impact after they transfer to a brand new jurisdiction. For many who are contemplating a wedding contract, or who have already got one, it’s essential to get skilled authorized recommendation on this slender level.
Full textual content of the choice: Torgersrud v. Lightstone, 2022 ONSC 7084 (CanLII)
