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Does this story worry you as a man? It should.
The Millionaire, His Ex-Girlfriend, And The Family Court Judge
Janice FiamengoNovember 5, 2020Barely 50 years ago a man could tire of his wife, tell her he wanted a divorce and, with a little luck in court, walk away financially intact, leaving his ex in virtual penury to start over if she could. Since then, the legal and financial pendulums have swung. And swung. And swung some more. About time, too! many will answer. But should there be no limits at all on spousal support obligations? Janice Fiamengo dissects a prominent – and, for the male party, extremely costly – divorce case to reveal the one-sidedness now baked into Canadian family law.
With 70 percent of divorces initiated by women, a man guilty of nothing worse than becoming unappealing to his spouse can find himself forced by law to financially support a woman who prefers never to see him again. Though the woman has ended the relationship, the man pays the financial penalty and faces the possibility of fines, garnisheed income or even prison if he refuses or is unable to do so. The notable recent judgement in the case of prominent Toronto multi-millionaire Michael Latner provides an occasion to consider the moral and philosophical bases for such decisions. Latner has been ordered to pay out over $53,000 per month to a woman he never married or even lived with. The case prompts the question of whether the State’s appetite for expropriating (mostly male) personal assets and transferring them to (mostly female) spouses (or non-spouses) has any limits at all.
The enormous sums of money involved in Climans v. Latner made for juicy headlines but the precedent set may be even more significant. Latner, 65, is a member of one of Canada’s wealthiest families, with a personal fortune estimated at approximately $137 million. One of four children of the late real estate developer and entrepreneur Albert Latner, he manages the family’s companies and is an avid art collector and benefactor of the Art Gallery of Ontario. He is clearly able to pay for his ex-girlfriend’s support, and he will not experience the financial exigencies some divorced men are made to suffer. Still, why Latner’s ex-girlfriend, or any woman in a similar position – especially in our era of alleged female autonomy – is entitled to such lavish compensation is never satisfactorily explained in the judgement. If women are responsible adults capable of making their own decisions, why are they not seen as able to live with the consequences of their choices?
Latner first met Lisa Climans, a former model from the Lytton Park neighbourhood in Toronto, in 2001. He was divorced with three children, already paying spousal and child support; she was separated from her husband, with two children. Throughout her time involved with Latner, Climans was already receiving $2,000 per month in child support from her ex-husband. There is no suggestion that Latner ever mistreated Climans. The evidence established that he was a devoted and even doting lover, providing amply for her and her children.
Family patriarch Albert Latner, seen here in Israel, was a hugely successful businessman, prodigious philanthropist and intellectual.
Climans received voluminous gifts and money from Latner from the time they began dating until their civil trial, for which Climans made application in late 2015. One of Latner’s major claims at trial, in fact, was that if Climans had managed the money he had given her since 2001, she should have been set for life. It is not clear which party ended the relationship, but it was likely Climans. A close friend of Latner’s testified that, “He spoke to Mr. Latner before the relationship ended. Mr. Latner was unhappy but he cast no blame on either one of the parties.”
Climans apparently did not like the financial limitations the contracts would place upon her. Perhaps she wagered that in the event of a separation, a sympathetic judge would side with her in the matter of support. If so, she was correct.Tweet
When the couple began seeing each other, Latner had been understandably hesitant about marrying again without a clear financial framework, likely unwilling to risk his fortune and his children’s inheritance on a woman who might exploit him for personal gain. He later testified that he would “never marry or move in with Ms. Climans without a domestic contract.” Such hesitancy did not prevent him from lavishing gifts on Climans, including paying off the mortgage on her house, paying for multiple credit cards he provided for her (at least one in the name of Lisa Latner), showering her with jewellery that included a 7.5 carat diamond ring, leasing her a luxury automobile, and giving her $5,000 per month for her personal use. He took her on opulent vacations and amongst many other kind acts bought her seven fur coats and paid for her “cosmetic procedures.”
This very generosity laid the groundwork for Climans’ claim to spousal benefit, enabling Superior Court Justice Sharon Shore to find that the relationship involved “economic dependency” and that its termination would reduce Climans’ standard of living. From a different perspective, one might allege the relationship involved economic exploitation by Climans of Latner, and that the exploitation came to an appropriate end with the relationship’s dissolution.
Latner had asked Climans to marry him. The couple presented themselves to friends and acquaintances as married, wintering together in Florida and summering at Latner’s Muskoka cottage. But they did not marry legally, keeping separate primary residences and bank accounts. Climans never reported herself as a common-law spouse on her tax returns.
According to testimony at trial, Latner brought a number of marriage (or “domestic”) contracts to Climans but could never convince her to sign. The significance of that refusal is never commented upon by Justice Shore, but its meaning seems relatively clear: Climans did not like the financial limitations the contracts would place upon her. Perhaps she wagered that in the event of a separation, a sympathetic judge would side with her in the matter of support. If so, she was correct.
The case was decided in early 2019. Justice Shore found Climans entitled to indefinite spousal support of $53,077 per month (Climans’ two children were adults living on their own by the time of the breakup, so there was no question of child support). Latner appealed, stressing that as a girlfriend and travel companion only, Climans had no legitimate claim to be supported in the manner of a spouse. Since their breakup in 2015, he had been paying her $6,000 in cash plus $5,000 on her VISA card per month, as well as continuing to pay for many house and car expenses, for a total of $621,783.88 over the now four-year period. Despite Latner’s objections, the amount of $53,077 per month was maintained upon appeal although the period of support was reduced to ten years.
Climans v. Latner involved more than just a lot of money; it included a substantial reinterpretation of the private decisions of two adults. Though the ill-fated lovers may have presented themselves as a couple, and though Latner may have wanted to marry Climans at one time, both made the decision not to wed. Yet these years of reasoned choices counted for nothing with the Canadian court. As a result, Latner will pay over $6,360,000 (in nominal dollars) to a woman who wouldn’t allow him to “make an honest woman of her.”
According to Professors Carol Rogerson and Rollie Thompson in “Spousal Support Advisory Guidelines,” a document prepared for the Canadian government in 2016, spousal support in Canada is based on two principles, one compensatory and the other non-compensatory. In the case of compensatory support, it is alleged that a spouse (we’ll assume here a woman in a heterosexual marriage or common-law relationship) has lost earning and career opportunities, and has conferred an uncompensated benefit on her spouse throughout the years of marriage. The woman’s homemaking and childrearing responsibilities are understood to have interfered with her pursuit of career and are considered an unpaid benefit to her husband.
Non-compensatory benefits reflect the understanding that a spouse who has been out of the job market or working only part-time during the marriage will experience a significant decline in her standard of living upon the breakup. According to Rogerson and Thompson, “Non-compensatory support reflects the economic interdependency that develops as a result of a shared life, including significant elements of reliance and expectation…” Common “markers” of entitlement to such non-compensatory support, they explain, include “the length of the relationship, the drop in standard of living for the claimant after separation, and economic hardship experienced by the claimant.”
Although these two bases for spousal support are generally accepted, they are not self-evident. For one, they seem designed for a different era, a time when women expected to marry for life and to devote themselves to their husbands and children; a time when women’s opportunities for employment were far more limited. Even on their own terms, however, the support guidelines are far from logically coherent.
In the case of compensatory support, one may be inclined to agree that a woman who keeps house, provides companionship, makes meals, and rears children for her breadwinner husband has provided a benefit. It is not at all clear, however, that it has been an uncompensated one. She has been given a roof over her head, given the money to buy the food she cooked, and provided with innumerable material and other benefits for herself and her children that she alone may well not have been able to provide.
In many households, wives have access to or even control over their husbands’ earnings, acting as family banker, paying bills, managing budgets, and making decisions about everything from new appliances and furniture to automobiles and vacations. She may have fulfilled her roles superbly or inadequately; she may in fact have deprived her husband of sexual pleasure or edible meals, but he is bound by law not to deprive her of a roof over her head or access to her children (rights that he may forfeit upon her decision to divorce him).
The idea that in being a housewife or mother she sacrificed a career and thus deserves financial compensation is hypothetical. Perhaps she did. Or perhaps she would never have had a career. Perhaps she experienced a blissful respite from soul-deadening work, enjoying instead the opportunity to devote herself to family without the stresses and inconveniences of outside-the-home employment. The notion that being a stay-at-home wife is a sacrifice depends on a jaundiced view of home-making and a rosy view of paid work; both of these are modern-day cultural assumptions rather than established social science.
Those uninitiated in the subtleties of Canadian family law will probably be surprised to learn that two people who explicitly made the decision not to live together may be seen as “cohabiting”.Tweet
As for non-compensatory support – the view that the former wife will likely experience a drop in her standard of living – it is not clear why the husband should be forced to maintain her in comfort and security at all, particularly if she initiated the breakup.
It was the “economic interdependency that develops as a result of a shared life” that was fundamental to the Latner judgement. Rationalizing around the fact that Latner and Climans never lived together continuously, Judge Shore cited abundant case law in determining that they shared a common-law or de facto marriage (under Ontario law, that is one in which a couple has lived together continuously for three years) and that Climans had grown accustomed to a standard of living she would not be able to maintain without Latner.
The judge emphasized that Canadian law has consistently refused to set forth any “bright-line rule” to define cohabitation. Instead, Canada’s courts have adopted a “flexible approach to spousal relationships,” finding that “the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting.”
Those uninitiated in the subtleties of Canadian family law will probably be surprised to learn that two people who explicitly made the decision not to live together may be seen as “cohabiting”. In the judge’s words, “each case is fact specific” and may be determined by a variety of other factors including whether others thought they were a couple, level of commitment and financial dependency. For men worried about women who may have long-term designs on their money, Shore’s ruling suggests there are almost no potential circumstances in which a man may not find himself obligated to provide long-term and hefty financial support to an ex-girlfriend.
That the “pattern of economic dependency” the judge found so important was created with Climans’ consent and perhaps even with her conniving was not considered. “For fourteen years, Mr. Latner provided Ms. Climans with a lavish lifestyle, one that she cannot maintain on her own income,” the judge noted. Now, Climans’ only independent source of income was from teaching yoga (another result of her own choice).
One might well ask why Climans remained entitled to this lavish lifestyle. On what rational basis should Latner continue to pay for her car, her vacations, her jewelry, or her cosmetic procedures? Under what rule is it laid down that a woman who profits from a man’s freely given gifts is entitled to keep on profiting, through the force of the law, now that she has left him?
It’s also possible there were other sorts of dependency – emotional, psychological and sexual – that underpinned or accompanied the economic dimension, particularly for Latner. Surely his lifestyle, too, suffered a decline after the breakup: no more intimate meals, no more joyful companionship, no more opportunities for sexual comfort. A relationship that obviously meant a lot was replaced by loneliness. But only Latner’s duty remains while Climans is not held responsible for anything.
One might also ask why, given that Climans brought nothing financial to the relationship, she is now owed anything financial. If she had aided Latner’s various business endeavours, it would be understood that she deserved to be compensated. But she was rewarded for no financial contribution. So why, now that she has chosen to ruin their relationship, is she not liable to pay back some portion of what she received? In our present climate, of course, this sounds like foolishness. But it is no more foolish than the contention that she deserves to be maintained like a queen by a man she no longer cares for.
Climans’ own position seemed relatively straightforward in its naked greed. In the judge’s words, “She takes the position that given that Mr. Latner did not deny, or refuse to admit and give reasons for his refusal, the statement that ‘he has the ability to pay any amount to Lisa for her support,’ he is deemed to have admitted same.” In other words, Climans frankly asserted that she continues to see Latner as a source of near-unlimited wealth to be tapped by her. Judge Shore did not comment on the crudity of Climans’ assessment, nor disagree with its underlying assumption.
The judge also found that Climans was owed “compensatory” support to address lost earning opportunities. “Ms. Climans gave up her job at the start of the relationship to be available to Mr. Latner,” the judgement states. “She has been out of the workforce for 14 years, due to the relationship.”
It is difficult to understand the basis on which the judge could reasonably determine that a man, simply because he has the ability to pay, should be obligated to underwrite his ex-girlfriend’s boxing lessons, Botox treatments, or exotic vacations.Tweet
A properly skeptical observer might find it a bit much to allege that Climans suffered any “economic loss or disadvantage” as a result of her relationship with Latner. She had previously worked in sales and marketing at her brother’s construction firm, grossing about $60,000 per year. With Latner, she more than doubled her cash income to $11,000+ each month (tax-free), and benefited from innumerable perks and bonuses like vacations, restaurant meals and a luxury car, plus had all of her personal expenses paid.
So where was the “loss” Climans suffered due to the breakup she initiated? If Climans had merely put aside some portion of her income, she could have been set for a comfortable life in a mortgage-free home (also thanks to Latner). But the judge never considered what Climans could or should have done with the millions of dollars she had already received from Latner. Instead, she focused solely on working out how much Climans should continue to receive.
The judgement’s pièce de resistance comes in the manner the judge employed to determine the amount owing. She did not pluck the gigantic number from the air. Nor did she set about a sober calculation of Climans’ real needs. Instead, she asked Climans what she thought would be necessary to continue to live in the same manner, and Climans obliged by providing a “wish list.” The judge’s outline and response make for a fascinating bit of accounting:
With respect to her expenses, Ms. Climans provided a proposed budget of $34,679 net per month. During cross-examination, she acknowledged that her budget was a wish-list. She included groceries of $2,800 per month plus $2,000 for meals outside the home, as the amount she spent during the relationship. The $4,800 per month for food would have included Mr. Latner and her children. Mr. Latner is not responsible for the expenses for her children. I would therefore reduce these two items by $2,000 total. The estimated $6,000 per month for vacations included at least one of her children. There were a few other expenses which were not entirely accurate. I would reduce her budget for vacations to $4,000 per month. Her voice lessons ($1,600 per month), boxing ($350 per month), personal trainer ($433.33 per month), Canadian National Ballet lessons ($165 per month), gifts ($1,000 per month), and car lease (at $1,332 per month, even though Mr. Latner agreed to transfer the car to her as the lease is up shortly) were all part of her “wish list”. The monthly total for these items is $4,880.33. I would reduce the overall amount to $3,000. This would still give her a discretionary amount but perhaps not incurring all of the expenses at the same time. For example, if the car is transferred to her, her proposed budget is immediately reduced by $1,332 per month. If and when she needs to replace the car, she may no longer be taking voice lessons. Or she may find she is not spending $1,000 per month on gifts. She will still have significant discretionary funds to spend on these items. I have left many of her other lifestyle expenses such as her talk therapy ($1,000 per month), her beauty care (over $1,900 per month), her clothing ($5,000 per month) alcohol ($200 per month), and renovations on her home, without any reduction as they are reflective of the lifestyle and expenses she enjoyed during the relationship.
Judge Shore was notably restrained in dealing with the discrepancies and fudges in Climans’ budget. Attempting to make sense of the judge’s determinations, however, is an exercise in frustration. If $4,800 was the amount spent on groceries and restaurant meals for four people (Climans, Latner and Climans’ two children), why should the total amount be reduced by only 42 percent to cover Climans’ sole food needs? Surely Climans’ appetite never made up 58 percent of the food budget. From whence came the reduction to $4,000 per month for vacations if Climans’ budget, at $6,000, had included “at least” one of her children (whatever “at least one” could mean in dollar terms)? In what manner did the judge determine that $4,880.33 per month for voice lessons, boxing, personal trainer, ballet lessons, gifts, and car lease was excessive, but that $3,000 per month was just right? And finally, in what conceptual universe would a judge determine that talk therapy at $1,000 per month, beauty care at $1,900 per month, clothing at $5,000 per month and home renovations were all necessary expenses for a 51-year-old yoga teacher with no dependent children?
It is certainly reassuring to be informed that, “It is within the court’s discretion to draw the line at certain types of lavish expenditures such as private jets and plastic surgeons.” It is quite encouraging to be told that, “There is no dispute that Ms. Climans has an obligation to contribute to her expenses.” And yet the judge’s relatively minor tinkering with Climans’ wish list is unlikely to strike the average observer as fair or reasonable.
In the end, the judge determined that Climans had legitimate expenses totalling $28,800 after-tax per month, all of which should be covered by Latimer. She should therefore be paid a total of $53,077 (before tax) per month. Plus a lump-sum of $421,795.12 to cover the period from when she left Latner to the trial’s end. It is difficult to understand the basis on which the judge could reasonably determine that a man, simply because he has the ability to pay, should be obligated to underwrite his ex-girlfriend’s boxing lessons, Botox treatments, or exotic vacations – particularly in amounts so staggering that the court’s ostensible encouragement to self-sufficiency for the woman will never be realized.
The judge’s decision here lays bare the irrationality of Canadian family law. First, these two people did not have children together – and therefore the alleged need for “support” has no real foundation. Second, the man in question sought to guard himself from precisely the outcome the court reached. Latner was willing to marry Climans on terms that would have shielded to some degree the wealth she had no part in creating. She was unwilling to marry him on those terms. Yet then she went about profiting from their separation in a manner no different than if she had persuaded him to marry her without a domestic contract.
How is this judgement – affirmed on appeal – not an encouragement to sexual exploitation and learned (or feigned) dependency on the part of women, and calculated, even paranoid, self-protectiveness and resentment on the part of men – plus general mistrust between the two sexes? One wonders about the lessons learned by Latners’ and Climans’ children. More generally, it is difficult not to see such socially disastrous ends as deliberately produced by the Canadian family law system.
Janice Fiamengo is a Professor of English who retired from the University of Ottawa last year and, now living with her husband David Solway in Vancouver, is author of The Fiamengo File, a series of videos about men’s issues and feminism.