Judges make justice unaffordable.....again
Karen Selick,
Tuesday, November 18, 2008
http://www.nationalpost.com/todays_paper/story.html?id=967648 The Supreme Court of Canada recently refused to hear an appeal in LeVan vs. LeVan, thereby passing up a splendid chance to undo mischief done by Ontario's lower courts. The facts of the case include more wrinkles than can possibly be described here.
However, in a nutshell, the lower courts nullified a marriage contract under which the wife had apparently agreed, in case of a separation, to forego the property equalization and spousal support rights that Ontario law would normally bestow.
Seven years after marriage, the couple split. Ms. LeVan applied to the court for all the things the contract said she wouldn't get, and the court obliged: $5.3-million in property equalization and $79,680 yearly in spousal support.
The court found the contract "unfair" for several reasons, but the one I want to focus on is the fact that the husband had not disclosed in advance the value of his assets. His family owned a controlling interest in a large company. In other words, Mr. LeVan was rich, but he neglected to tell his fiancee. What he did tell her was that if she didn't sign the marriage contract, there'd be no wedding.
Putting it bluntly, the bride had two options: either sign the contract and get virtually none of the husband's money, or not get married at all -- in which case she would obviously get none of the husband's money. Note that both options included the part about not getting any significant amount of the husband's money. Therefore, how could it have mattered whether she knew the dollar value of his assets, since she wasn't going to get any of them either way? Zero percent of any number is still zero.
Now, it's possible that Ms. LeVan didn't actually understand that she wouldn't be getting any of her husband's money. The contract was such a hasty, botched-up mess that it's not even clear whether the dyslexic husband or the three lawyers involved in negotiating it understood the final product. But that's a different issue.
My beef is that the courts have now made it virtually mandatory for betrothed individuals to disclose a dollar value for their assets, supported by independent appraisals, even if their marriage contract denies them any rights to each other's wealth.
Our paternalistic courts have held that without knowing "what asset base might potentially grow," couples can't understand what they are giving up. So even if they're determined to marry for love rather than money, they've got to produce those numbers.
During the negotiations, Mr. Le-Van's lawyer had responded to a request for financial disclosure with the objection that a "full-blown valuation" would cost "at least $10,000." Ha!
By the time the trial was over, the wife's appraiser had billed $244,753 for valuing the husband's assets and appearing as a witness. The husband's appraiser said the valuations would cost over $500,000.
Faced with such costs, what people in their right minds would ever get marriage contracts prepared? Even my middle-class clients will look askance at paying $1,000 extra to have their houses and pensions appraised when the outcome won't make one iota of difference. How many people have been effectively deprived of their statutory right to opt out of property equalization?
The ultimate irony is that the Supreme Court's decision not to tackle this case was made by a panel of three judges including Justice Ian Binnie. In a 1999 speech, Judge Binnie denounced "astronomical" legal expenses, saying "I am staggered at the amount of money law firms can burn up in addressing issues ... thousands and thousands."
Then, in a letter published here in the Post, he wrote: "The fault lies with the structure of civil litigation, which pushes conscientious lawyers to engage in lengthy pre-trial procedures that are out of proportion to the matter in issue and are in that sense 'unnecessary' to produce a just result." I responded in these pages with a column arguing that, frequently, it is judges who make justice unaffordable.
Judge Binnie, it seems this is another case where you judges were not part of the solution. Which means ...
so pre-nups are now garbage?
