PEOPLE OFTEN ASK: WHAT IS A ‘VESTING ORDER’?
In fashion, a vest is a sleeveless, close-fitting waist-length garment worn over a shirt, typically having no collar and with buttons down the front.
In family law, spouses often seek Vesting Orders for the transfer the matrimonial home in exchange for an equalization payment and/or support.?
The idea is that if Mr. Husband owes Mrs. Wife an equalization payment or support of $200,000, and 50% of the net value of the jointly owned matrimonial home is $200,000, then it would make sense for the judge to ‘vest’ the matrimonial home in favour of Mrs. Wife.
Section 7(1) of the Family Law Act allows a judge to order the transfer of property (i.e. vesting) and section 100 of the Courts of Justice Act grants judges these broad powers.
This very request was made by the wife in Leith v. Eccles 2024 ONSC 4769 (CanLII).
The husband passed away and the wife asked that the matrimonial home be transferred to her as a set off to the equalization payment due to her from her deceased husband’s estate.
Because the husband passed away, it was the executor of the estate – the deceased husband’s children from a previous marriage – that had to decide.
Well they didn’t agree.
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The judge decided that it was not perfectly clear that the sums matched and, moreover, the judge found that if the husband wanted his wife to have (i.e. vest) the home, he would have said so in his Will.
And so the judge denied the wife’s request for a Vesting Order and ordered that the estate’s assets, including the home, be sold to determine the wife’s entitlement to the equalization payment. The judge reasoned that this was more fair to all beneficiaries of the estate, including the adult children.
While Vesting Orders are a tool spouses might use to transfer property in lieu of equalization or support payments, the court's decision in this case highlights the very fact that they are a discretionary remedy and that judges will weigh all of the considerations in the granting of such an equitable order.
CASE LINK:?Leith v. Eccles 2024 ONSC 4769 (CanLII)
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto.?He is a Certified?Specialist?in Family Law and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator, Arbitrator and Parenting Coordinator. As a?Divorce Mediator, Steve uses his 30 years of in-depth knowledge of family law,?court-room experience?and expert problem-solving skills in Divorce Mediation to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.?You can find his CV at https://benmor.com/wp-content/uploads/2023/12/Steve_CV_Nov23.pdf.?He can be reached at [email protected]