An Ontario court has dismissed a woman’s bid to have a court enforce a provision of her divorce agreement which required her ex-husband to buy life insurance to ensure that his ongoing spousal and child support obligations would be paid.
In Katz v. Katz, the Court of Appeal for Ontario dismissed an appeal from a woman who sought, among other things, an order against her ex-husband that would enforce a provision in their divorce agreement requiring him to obtain a $500,000 life insurance policy and designate their three children as beneficiaries.
According to the decision dated August 25, as part of their divorce agreement in 2010, the ex-husband was required to obtain life insurance within 60 days of the divorce order, which was premised on his obligation to pay child and spousal support for up to 17 years. He didn’t secure the insurance, and, in 2013, the ex-wife brought a motion seeking an order that would entitle her to obtain the required insurance and collect the premiums from her ex-husband as if it were child support. The husband argued that he had been prevented from obtaining the required insurance because he was diagnosed with, and treated for, prostate cancer.
The lower court dismissed the motion. It found that the ex-husband was ineligible for the insurance because of the cancer, which was discovered in the process of applying for insurance. And, it said it was “not aware of the legal proposition” that would allow the former wife to insure her ex-husband’s life and pass on the costs.
The appeal court partially upheld the lower court’s decision, noting, “it was open to the motion judge to find that the respondent made reasonable efforts to obtain life insurance within the 60-day period following the divorce order and that he had been unable, due to his medical condition, to obtain traditional life insurance then or subsequently.”
However, the appeal court conceded that the lower court made a mistake on the question of whether the ex-wife could seek to insure her ex-husband’s life. It found that insurance legislation does allow dependents to take out insurance on the life of a person providing them with support. Nevertheless, it still dismissed the appeal; although it also said that this does not relieve the ex-husband of his obligation under the divorce order to obtain and maintain life insurance. “In the event the respondent remains unable to fulfill this obligation, he should serve and file a motion,” it notes.
The court also said that the case “demonstrates the desirability of having evidence of the payor’s insurability and of the amount and cost of the available insurance.” It suggested that the amount of insurance to be maintained should decline over time, as the total amount of support payable declines; and that the obligation to maintain insurance should end when the support obligation ends.