Thanks to Joel Campagna at Manulife Financial for drawing my attention to Spencer v Riesberry, 2012 ONCA 418, in which the Court of Appeal held that a wife did not have an “interest” in a family home for the purposes of the Family Law Act (Ontario) because the home was held in a trust settled by the wife’s mother of which the wife was merely a contingent beneficiary and co-trustee.
I took the trial judge’s decision in McNamee v McNamee, 2011 ONCA 533, as a sign of how far a court might go in seeking to get around language in a deed of gift that excludes property from “net family property” under the Family Law Act (Ontario). I’m always very cautious when advising clients about the efficacy of a plan for family law purposes. Perhaps the Court of Appeal is sending a different message, however. The Court of Appeal overturned the trial judge’s decision in McNamee, and in Spencer it refused to ignore or bend trust law principles simply to achieve a “just” result for family law purposes. Perhaps I needn’t be so cautious.
