Section 5(6) of the Family Law Act provides: (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 spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
- the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
- the part of a spouse’s net family property that consists of gifts made by the other spouse;
- a spouse’s intentional or reckless depletion of his or her net family property;
- 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;
- 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;
- a written agreement between the spouses that is not a domestic contract; or
- any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.
In accordance Serra v Serra, 2009 ONCA 105, the Court held that the threshold of section 5(6), that of unconscionability, is set very high. In Merklinger v Merklinger (1992), 11 OR (3d) 233 (Ont. Gen. Div.), the court stated, “the result must be more than hardship, more than unfair, more than inequitable.”
In Cosentino v Cosentino, 2015 ONSC 271, the parties were married for 29 years and had 2 children. The Wife brought an Application for the division of family and sought unequal division of family property. The Wife claimed that the Husband had extra-martial affairs, put improper pressure on her to reconcile in 2006, depleted their joint assets in 2006-2007, and used some of her money to acquire an investment property in his name after separation.
Issue 1:
The Wife had argued that the “nature, extent, or duration of the extramarital affairs engaged in by the Husband…came within the enumerated considerations in section 5(6).” However, morally objectionable or emotionally harmful conduct does not provide the Court with the grounds to exercise its discretion under section 5(6) of the Act, as there was no evidence in this case that the Husband’s affairs had any significant effect on the parties’ debts, liabilities, or property. The Court held that “section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.”
Issue 2:
The Wife further submitted that the Husband used threats to have her reconcile with him, and thereafter, drew improvidently on the parties’ joint line of credit. The Court found, given the evidence, that the Husband did not use improper pressure, let alone duress, and found that the parties’ reconciliation in 2006 was genuine. As such, the Court dismissed the Wife’s argument and found that the Husband’s conduct did not reach the threshold of unconscionability.
Issue 3:
The Wife further submitted that the Husband ran up the parties’ joint line of credit in 2006 and 2007. Although the Wife characterized the Husband’s expenditures as unnecessary and unwise, she failed to demonstrate to the Court that such expenses were reckless or deliberate so as to deplete the net family property of the parties.
Issue 4:
The Court then continued its analysis to the final ground argued by the Wife for an unequal division of family property. The Wife asserted a constructive trust interest in relation to property acquired by the Husband following the separation in 2008. The Court held this purchase was nothing more than the usual post separation accounting that is done when one party draws more than the other draws on a joint line of credit.
The Court found that the appropriate remedy was an accounting for the sum drawn and not an ownership interest or an unequal division of family property. In conclusion, the Court dismissed all of the Wife’s claim for an unequal division of family property. Cosentino v Cosentino, 2015 ONSC 271