16 Nov Did you know that you have Recourse against your Spouse for Squandering Family Patrimony Assets?
Joseph and Renée have been married for 15 years. Joseph is a compulsive gambler and alcoholic, and this creates big problems in their marital union. For years, he has been promising his wife that he will stop gambling and do something about his drinking problem. This year, the situation deteriorates: Renée finds out that her husband has been spending all his afternoons at the Casino de Montréal, and that he has withdrawn $40,000 from his RESP during the last 6 months. This makes her decide to quit Joseph for good. Renée has $20,000 in her RESP, but Joseph does not have a penny left in his. She wonders if she would have to share what is in her RESP with Joseph after their separation.
As a rule, during a divorce or separation, the value of the family patrimony is divided equally between the spouses, and the RESPs are part of the patrimony. However, in exceptional situations, one of the parties may request an unequal division of the value of the family patrimony. In the given situation, Renée would be justified to request that the RESPs be divided unequally. Indeed, Joseph’s irresponsible and reckless behaviour of squandering his RESP at the Casino should not penalise Renée.
Renée must show that Joseph did not respect his obligation of contributing to the fructification and maintenance of the family patrimony, and that an equal division of the RESPs of both parties would lead to an injustice.
Renée could equally request that the Tribunal issue a judgment for a compensatory payment, considering that Joseph deprived her of her share in his RESP that used to contain $40,000.
If Renée demonstrates properly the elements mentioned above, the Tribunal could order Joseph to pay her $10,000, which would have been her rightful share, had Joseph not squandered his RESP.
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Text drafted by Me Michelle Merhi,
Lawyer at Brunet & Associés