April 21, 2015

Caring for your aging spouse may be difficult and stressful without a support network. When the “healthy” spouse is too old and fragile to provide care, additional support or alternate accommodations for the ailing spouse must be found. Unfortunately, when one 80-year old wife made it clear to her children and step-children that she was not able to care for her ailing husband, she found herself the centre of a lawsuit.

Max and Cynthia were married in their late 60s. It was the second marriage for both. Each had four adult children from their previous marriages. When they married, they entered into a marriage contract. They provided each other with full financial disclosure and had the benefit of legal advice. Their mutual intention, as set out in the marriage contract, was to maintain complete financial independence, including no equalization or spousal support on death or separation. On death, their individual property was to pass to their respective children. Importantly, the marriage contract also contained a clause that each spouse would pay for his or her own nursing and health care expenses.

Max grew ill, and Cynthia cared for him for seven years at home. Eventually Max’s illness meant he was admitted to hospital, then a rehabilitation centre. When Max’s health improved somewhat, he looked to return home. Cynthia, who was now 80 and feeling frail, explained that she could not provide Max with proper care. It was decided, on the recommendation of Max’s doctors, that he would be moved into a long-term care facility. Shortly thereafter, Cynthia and Max were divorced.

Max’s son, acting as litigation guardian and, following Max’s death, on behalf of Max’s estate, sued Cynthia for unlawful refusal to allow Max to return to his matrimonial home. The amount of damages claimed were the costs of the nursing care and medical expenses.

Max’s claim was dismissed on summary judgment. The motion judge found that Cynthia did not refuse Max entry to the matrimonial home, so there was no genuine issue for trial. Because Cynthia had made an offer to settle prior to the motion, which was refused, Cynthia was awarded substantial indemnity costs in the amount of $45,000. Max appealed.

The court of appeal upheld the motion’s judge’s decision (Warshafsky v. Gasner). The court found that Cynthia did not refuse to allow Max to reside in their home per se, she only indicated that her own frail health meant she could not adequately care for him. The court found that Max (or Max’s children) never brought forward a plan to provide Max with appropriate at-home care which would have made it possible for him to return home safely. In addition, Max’s children (with the exception of Max’s son, who was acting as litigation guardian) had agreed with the recommendation of the staff at the rehabilitation centre that Max would be best cared for at a long-term care facility.

Given the above, the court of appeal upheld the motion judge’s decision and dismissed the appeal. The court further noted that, in any event, the claim for medical and nursing expenses was barred by the marriage contract.

This is an example of how a marriage contract can be of assistance when litigation arises. When the parties entered into the marriage contract, their wishes were expressed clearly and comprehensively. They entered into the contract openly and in good faith. Although litigation cannot always be avoided, the marriage contract helped bring the matter to a speedy resolution on summary judgment, keeping costs contained.