Strike One, You're Out
Tuesday, November 27, 2007 at 00:00
By Marcel Strigberger
I practice a fair amount of family law representing men and women equally. Like a chess game, I play black as often as I play white. I find however that if the practice of family law is compared to a casino, then women are the house. It's hard to say how and why but their cases just seem to have that edge with most judges. In fact I am starting to have reoccurring nightmares of being counsel on the male side of the following decision:
GRAB J.: This action was brought by Wilma Jenkins against her former lover Norman Brown.
By way of background, both parties are in their mid thirties and reasonably well off financially. Norman is a lawyer practicing plaintiff personal injury and Wilma is a general surgeon, on staff at Toronto Hospital. There are no children. The parties do however have a pet beagle, named Columbo.
They met on a cruise about a year ago, fell madly in love and decided shortly thereafter to cohabit. They lived together for about 30 days in Norman's three bedroom house when suddenly the relationship became a bit strained. Each side accuses the other of physical and mental abuse.
The parties separated after they had a bit of a row. Norman claims that he was watching television program "Ally McBeal" one Monday evening as he unusually does. He advises that he finds the law based program intellectually stimulating. Wilma came along and accused him of unduly staring at Ms. McBeal's legs. The evidence gets a bit fuzzy here but Wilma alleges that she asked Norman to take a break and walk Columbo. Norman said, "After the show dear", whereupon Wilma allegedly suddenly lunged at him with a scalpel. He claims he then ran out of the house and called 911.
The police came and after listening to the parties they charged Norman with assault and threatening Wilma and their daughter and arrested him. A term of his bail conditions was that he refrain from having contact with Wilma or any children should he have any. As well he has to keep at least a half kilometre away from his house.
I find no fault in the actions of the police. Where there is conflicting evidence between spouses the authorities should apply the contra preferandum rule. They should prefer the woman's version contrary to the man's.
Norma makes a claim in this action for spousal support and for a fifty percent share of Norman's property. She claims that even though they were not married she gave the defendant the best days of her life. She pleads that he holds all of his property as a constructive trustee for her and that he would be unjustly enriched were he allowed to keep it all and not give her half.
I have little difficulty in coming to the conclusions I am about to reach in this case.
As for the property issue, I find that for the month or so the parties cohabited Wilma frequently stayed home and did some housework. The evidence is that on two occasions she took Columbo to the vet. She gave him a bath once. She also walked him about 6 times. As well it was she who was responsible for the dinners making the phone calls to Pizza Pizza. This enabled Norman to concentrate on his law practice and to further amass his fortune.
Norman argues that she made no contribution whatsoever to his assets, such as his house or his RRSP.
This argument carries no water. The only question is, did he suffer a benefit and did she suffer a detriment and is there a juridical reason why he should keep that benefit.
I find that this case cries out for relief as sought by the woman, I should say, Ms. Jenkins. I can think of no juridical reason why Norman should be allowed to keep all of his stuff to the exclusion of the woman with whom he agreed to cohabit. In other words once the movers left the parties together alone, he became a sitting duck.
I now turn to the issue of support. The plaintiff seeks $3000 a month support claiming that she has suffered economic disadvantage. She earns over $150,000 a year as a general surgeon and Mr. Cooper has been earning about $35,000 as a personal injury lawyer since no fault legislation hit Ontario. But this is not the point. During the period of cohabitation Ms. Jenkins claims she passed over several opportunities to become a brain surgeon. She testified that Norman told her, "It's OK honey, just continue making $150,000 a year as a general surgeon. I'll still love you.
The Moge case is clear on this point. All women suffer economic disadvantage after cohabiting with men. I draw from this decision that there is a presumption that all women, were they not in a relationship with a men, would indeed become brain surgeons. Men put the brakes on these aspirations and this disadvantage must be redressed.
The defendant argues that the plaintiff does not require support and that in any event the relations was of a rather short duration. In my view duration is an issue which the court should consider. The court has considered it. There shall be an order for spousal support in the amount of $3000 per month.
The plaintiff will have her costs on a solicitor and client scale. The court shall however firstly consider any offers to settle.
Judgment Accordingly.
I practice a fair amount of family law representing men and women equally. Like a chess game, I play black as often as I play white. I find however that if the practice of family law is compared to a casino, then women are the house. It's hard to say how and why but their cases just seem to have that edge with most judges. In fact I am starting to have reoccurring nightmares of being counsel on the male side of the following decision:
GRAB J.: This action was brought by Wilma Jenkins against her former lover Norman Brown.
By way of background, both parties are in their mid thirties and reasonably well off financially. Norman is a lawyer practicing plaintiff personal injury and Wilma is a general surgeon, on staff at Toronto Hospital. There are no children. The parties do however have a pet beagle, named Columbo.
They met on a cruise about a year ago, fell madly in love and decided shortly thereafter to cohabit. They lived together for about 30 days in Norman's three bedroom house when suddenly the relationship became a bit strained. Each side accuses the other of physical and mental abuse.
The parties separated after they had a bit of a row. Norman claims that he was watching television program "Ally McBeal" one Monday evening as he unusually does. He advises that he finds the law based program intellectually stimulating. Wilma came along and accused him of unduly staring at Ms. McBeal's legs. The evidence gets a bit fuzzy here but Wilma alleges that she asked Norman to take a break and walk Columbo. Norman said, "After the show dear", whereupon Wilma allegedly suddenly lunged at him with a scalpel. He claims he then ran out of the house and called 911.
The police came and after listening to the parties they charged Norman with assault and threatening Wilma and their daughter and arrested him. A term of his bail conditions was that he refrain from having contact with Wilma or any children should he have any. As well he has to keep at least a half kilometre away from his house.
I find no fault in the actions of the police. Where there is conflicting evidence between spouses the authorities should apply the contra preferandum rule. They should prefer the woman's version contrary to the man's.
Norma makes a claim in this action for spousal support and for a fifty percent share of Norman's property. She claims that even though they were not married she gave the defendant the best days of her life. She pleads that he holds all of his property as a constructive trustee for her and that he would be unjustly enriched were he allowed to keep it all and not give her half.
I have little difficulty in coming to the conclusions I am about to reach in this case.
As for the property issue, I find that for the month or so the parties cohabited Wilma frequently stayed home and did some housework. The evidence is that on two occasions she took Columbo to the vet. She gave him a bath once. She also walked him about 6 times. As well it was she who was responsible for the dinners making the phone calls to Pizza Pizza. This enabled Norman to concentrate on his law practice and to further amass his fortune.
Norman argues that she made no contribution whatsoever to his assets, such as his house or his RRSP.
This argument carries no water. The only question is, did he suffer a benefit and did she suffer a detriment and is there a juridical reason why he should keep that benefit.
I find that this case cries out for relief as sought by the woman, I should say, Ms. Jenkins. I can think of no juridical reason why Norman should be allowed to keep all of his stuff to the exclusion of the woman with whom he agreed to cohabit. In other words once the movers left the parties together alone, he became a sitting duck.
I now turn to the issue of support. The plaintiff seeks $3000 a month support claiming that she has suffered economic disadvantage. She earns over $150,000 a year as a general surgeon and Mr. Cooper has been earning about $35,000 as a personal injury lawyer since no fault legislation hit Ontario. But this is not the point. During the period of cohabitation Ms. Jenkins claims she passed over several opportunities to become a brain surgeon. She testified that Norman told her, "It's OK honey, just continue making $150,000 a year as a general surgeon. I'll still love you.
The Moge case is clear on this point. All women suffer economic disadvantage after cohabiting with men. I draw from this decision that there is a presumption that all women, were they not in a relationship with a men, would indeed become brain surgeons. Men put the brakes on these aspirations and this disadvantage must be redressed.
The defendant argues that the plaintiff does not require support and that in any event the relations was of a rather short duration. In my view duration is an issue which the court should consider. The court has considered it. There shall be an order for spousal support in the amount of $3000 per month.
The plaintiff will have her costs on a solicitor and client scale. The court shall however firstly consider any offers to settle.
Judgment Accordingly.
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© 2007 Marcel Strigberger. This article CANNOT be copied or reproduced in any way without the expressed written consent of the Author.
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