Unequal Division of Property: Affairs

The law with respect to division of property between spouses in Ontario is governed by the Family Law Act. The Family Law Act dictates that the spouses must conduct a Net Family Property when dividing up their property. This Net Family Property will result in one party having to pay his/her spouse an equalization payment.

However, in exceptional cases, the Family Law Act allows for an “unequal” division of property. These circumstances are outlined in section 5(6) as follows:

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) A spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) The fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) The part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) A spouse’s intentional or reckless depletion of his or her net family property;

(e) The fact that the amount a spouse would otherwise receive under subsection (1), (2), or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) The fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) A written agreement between the spouses that is not a domestic contract; or

(h) Any other circumstance relating to the acquisition, disposition, preservation, maintenance, or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

A former spouse often attempts to make the argument that they should be awarded an amount that is more than the equalization payment on account of the direct and/or indirect expenses their former spouse incurred to finance his/her extra-marital affair.

Justice Perkins, in the cases Biant v. Sagoo and Consentino v. Consentino, clearly explains that the ultimate purpose of section 5(6) was to ensure that spouses were not arbitrarily punished for their matrimonial misconduct.

Justice Perkins stated as follows:

It would be a novel proposition that a philandering spouse is responsible under subsections 5(6) for paying to the other spouse a sum equal to the cost of an affair, either direct costs (jewellery and such) or indirect costs (diminished profits from business)...  There was no evidence that the husband's expenditures materially affect the family in any way and certainly no evidence that the wife has been called on to show any portion of them.

However, normally objectionable or emotionally harmful the husband's conduct may have been in this case, it is only open to the court to respond to it under section 5(6) if it falls within one of the eight clauses of that provision. There was no evidence in this case that the husband's affairs had any significant effect on the parties' debts, liabilities, or property. There is accordingly no remedy under section 5(6) for the matrimonial misconduct of the husband. Indeed, section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.

However, that is not to say that if the former spouse’s affair fit the description of one of the eight circumstances in section 5(6), an unequal division of property could not be awarded. Thus, if the affair is proven to have depleted the property of the marriage or to have incurred large amounts of debts and liabilities, the spouse who had committed the affair may be subject to a claim for an unequal division of property.

To learn more about division of property as well as the services provided by Krol & Krol, call 905.707.3370 today.