Tag: family law issues

13 Jan

A Pound of Flesh?

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Shocking news out of Garden City, New York last week.  It is one of those incredible stories you hear that will either have you rolling on the floor clutching your gut to stave off the laughing-induced cramps, or shaking your head in disbelief at the state of the world today.

Now that my cramps have subsided…

In July 2005, Dawnell Batista filed for divorce from her husband of fifteen years, 49-year old Long Island surgeon, Dr. Richard Batista.  The couple have three children, age eight to fourteen.

In 2001, after his wife had two prior failed kidney transplants, Batista donated one of his kidneys to her, thereby saving her life.  Batista claims that his wife began having an extramarital affair a couple of years after the transplant.

Instead of going after their million dollar home in Massappequa, Batista now wants his estranged wife to return the donated kidney, although he says he’ll settle for $1.5 million in compensation.  Divorce lawyers say a donated organ is not a marital asset to be divided.  Further, in the U.S., organs cannot be bought or sold.

Speaking to reporters last week, Batista said, "There is no deeper pain that you can ever express than betrayal from somebody who you loved and devoted your life to."  Perhaps, but I’m guessing that having a donated kidney removed might come pretty close.

Hmmmm.  I’m suddenly having second thoughts about asking for those implants…

Jennifer Hartman, Guest Blogger

02 May

The Law and Polygamy in Canada

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The intense media coverage of the raid on the polygamist ranch in Texas has also generated scrutiny of Canada’s polygamous communities.

 

Polygamy is against the law in Canada but there has not been a prosecution of a case in over sixty years. For a background on the issues surrounding polygamy and Canadian law, read A Polygamy Primer on Osgoode Hall’s law blog, The Court.

 

The primer provides a link to a collection of research policy reports commissioned by the federal government exploring polygamy in the Canadian context. While the focus of the papers is on polygamy in a criminal law and family law context, the paper by Alberta’s Civil Liberties Research Centre discusses the civil case of Yew v. British Columbia (Attorney General) [1924] 1 D.O.D. 1166 (B.C.C.A.). In the case, the British Columbia Court of Appeal gave limited recognition to a polygamous marriage that had occurred in China to allow the two surviving wives to receive their annuities from their husband’s estate at a lower tax rate.

 

It will be interesting to see if the possible recognition of polygamous unions in the family law context will have an impact on estates law.

 

Enjoy your weekend,

Diane Vieira

14 Jun

Alzheimer’s No Bar to FLA Equalization

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Family law issues often make an appearance in estate litigation matters, as illustrated in a recent Ontario case, Yamada v. Zolad [2007] O.J. No. 607 (Ont. S.C.).

In Yamada Estate, a woman suffering from Alzheimer’s was allowed to elect to take her share of net family property under the Family Law Act, rather than take a life interest in the residue of her husband’s estate under his will.

The husband and wife had married in 1982. In 1997, when the couple was living in London, the wife began showing signs of Alzheimer’s and was moved to a medical centre in 2001, when her condition became more severe. The husband visited the wife almost every day until 2003, when the wife was moved to a Toronto facility. By this time, the husband’s mobility was impaired and it became difficult for him to visit his wife in Toronto.

The husband had won a million dollars in 2002. He died in 2005, leaving a Will. Further to the terms of the Will, he left his wife a life interest in the residue of his estate, with power given to his estate trustees to encroach on the capital to ensure his wife’s comfort and welfare. On the death of the wife, the two estate trustees were to receive $10,000.00 each in lieu of compensation, with the balance to be divided equally between two charities.

The wife, through her litigation guardian, brought an application to elect to take her entitlement under the Family Law Act, rather than keep her life interest in the residue of the husband’s estate. The estate trustees opposed the application, claiming that the parties had separated in 2001. They claimed that the husband had a fixed intention to separate from the wife in 2001.

Justice Greer granted the wife’s application. She found that the couple had never made any legal or emotional efforts to separate during their marriage and/or destroy the marriage. There was no Separation Agreement and no divorce petition. The couple simply became physically separated due to the wife’s advancing Alzheimer’s disease. This physical separation was not sufficient to establish legal separation in the circumstances.

Justice Greer also found that the husband’s 2002 lottery win was the motivating factor behind the estate trustees’ opposition to the wife’s equalization claim. She noted that they chose a separation date that pre-dated the lottery win, notwithstanding that the husband had been frequently visiting the wife at this time. She further noted that there was no evidence that either of the charities (as capital beneficiaries of the Estate), were opposing the wife’s equalization claim. Justice Greer appeared to reprimand the estate trustees for their position on the application, stating that as estate trustees and beneficiaries, they should have taken a neutral position on the application. Interestingly, the estate trustees were still awarded their costs to be paid out of the estate.

Have a great day!

Bianca La Neve

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