In Booth v. Bilek, 2021 ONCA 128, the Ontario Court of Appeal considered an appeal of a trial judge’s decision to refuse to provide a full equalization of net family property due to the short length of marriage, which in this case was 48 months.
Section 5(6) of the Family Law Act, allows the court to reduce a spouse’s share of net family property if equalizing the net family properties would be unconscionable.
“What’s unconscionable? It’s up to the judge.”
– Barbara Petito
In Booth v. Bilek, the trial judge considered the facts in this case to determine that the wife would receive only 10% of the full equalization payment, or $10,627 instead of $106,274 which she would have been entitled to should there be a full equalization of net family properties. The judge considered the fact that the wife had already received $200,000 in proceeds of sale from the sale of the matrimonial home, much of the husband’s net family property was from gifts from the husband, and said a full equalization would be disproportionate to a short period of cohabitation.
The judge picked 10%, even though in other cases, some judges had used a pro-rata formula to determine the proper reduction in the equalization. The Court of Appeal stated that the judge had not erred in this case and upheld the trial decision. To determine if equalization would be unconscionable, the court will consider the following factors outlined in section 5(6) of the Family Law Act:
(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.
The shorter the relationship and the greater the impact of any one of these factors on the net family property of the parties, the more likely it is that the court would determine that an equal sharing of net family property would be unconscionable.
To help you navigate property division in a short marriage, we recommend that you hire trusted family law lawyers that will represent your best interests. If you have questions about your divorce or separation, or asset or property division contact Windsor family law lawyers Mary Fox, Tanya McNevin or Thomas MacKay today by calling 519-259-1820. We serve clients in Windsor, Tecumseh, Lasalle, Essex, Leamington, Kingsville, Belle River, Lakeshore, and throughout southern Ontario.