The Laws of the “McDivorce”26-Oct-17
By: Marlena McMurtry
In Mcleod v Mcleod, Ms. McLeod applied for an interim matrimonial property order directing that she and her soon-to-be ex-husband share equally in season tickets for Oilers hockey games, including playoffs, for the 2017/2018 season. Mr. McLeod resisted the application on the grounds that the Court had no jurisdiction to grant a matrimonial property order before the Court made a final decision dividing up all of the couple’s matrimonial property, or alternatively, if it had jurisdiction, it should not exercise such jurisdiction.
The only evidence before the Court were affidavits sworn by the applicant and respondent. The undisputed facts were that the parties had been married for 35 years until they separated in 2015. They had enjoyed the benefit of Oilers season tickets as a couple for 11 years. Mr. McLeod was the owner of the Oilers season tickets. Ms. McLeod was not an owner but had the right to make inquiries about the tickets, even though they were not in her name. In the 2016/2017 season, Ms. McLeod was provided with a third of the regular season tickets, with Mr. McLeod deciding which ones she would receive. She was only given one set of playoff tickets at the last minute. In the 2017/2018 season, Mr. McLeod refused to provide Ms. McLeod with any tickets at all.
The Court reviewed the Matrimonial Property Act (the “MPA”) to consider the threshold issue of whether the Oilers season tickets could qualify as property. Mr. McLeod argued that he simply had a “right” to acquire hockey tickets, and that actual possession of the tickets was required for them to qualify as property under the MPA. The Court rejected Mr. McLeod’s argument and found that the season tickets were matrimonial property under the MPA. Moreover, the tickets were owned for 11 years, were acquired during the marriage, and fell squarely within the definition of household goods under the MPA.
Next, the Court canvassed case law to determine whether it had the jurisdiction to make an interim order for distribution of matrimonial property and whether it was appropriate in the circumstances of the case. The Court found that since the object of the MPA was to ensure a just and equitable distribution of matrimonial property, making an interim order to achieve that end would be appropriate and consistent with the intent of the legislation.
Mr. McLeod argued that even if the Court had the jurisdiction to make the order, it should refrain from doing so for the following reasons: (1) Mr. McLeod acquired the tickets for thanking clients and promoting his business; and (2) Ms. McLeod was receiving spousal support in the amount of $15,000 and could afford to purchase her own tickets. The Court stated that Mr. McLeod’s claim that the tickets were used to entertain clients was contrary to Ms. McLeod’s evidence that the tickets were used primarily by family and friends. The situation was distinguished from a case relied upon by Mr. McLeod where the defendant’s employer had paid for the Oilers tickets and the tickets belonged to the employer. Further, the Court opined that Ms. McLeod’s spousal support was not relevant to her entitlement to matrimonial property.
In granting the interim matrimonial order and awarding Ms. McLeod costs, the Court observed that season tickets are unique property in the sense that they lose their value once the games have occurred. Accordingly, a retrospective matrimonial property order cannot account for loss of opportunity to enjoy the games. It was therefore appropriate to make an interim order so that the tickets could be justly and equitably distributed between the parties. For the reasons set out above, the Court made the following interim orders:
- The parties shall share equally in the Edmonton Oilers 2017/2018 season tickets, including playoff games, if applicable.
- The parties shall alternate choices for game tickets with Mr. McLeod choosing the first game, Ms. McLeod choosing the second game, and alternating thereafter until all regular season tickets are assigned. If there are playoff tickets, Ms. McLeod shall choose her game first, Mr. McLeod shall choose second, and the parties shall alternate thereafter.
- The interim order will be considered by the Court when it makes a final distribution of matrimonial property, at which time an accounting for the cost of the tickets will occur.
- If your Oilers season tickets are in your name only, your spouse might still be entitled to an equal share on divorce;
- Even if your spouse can afford to purchase his or her own season tickets by virtue of the amount you pay in spousal support, he or she may still be entitled to half of the tickets;
- If you do not continue to play fair with your tickets, the court may view your actions as unsportsmanlike conduct and you might lose first pick of playoff games and the chance to witness Oilers captain Connor McDavid hoisting the Stanley Cup; and
- To avoid being found offside by the court and having your season tickets slashed in two, you can take steps to better protect yourself by entering into a marriage contract with a specific term that the Oilers season tickets are not subject to division upon divorce.