Unequal Division of Net Family Property

with Mary Tersigni

Please note: The script may not be exactly what is spoken, but contains the same information as presented in the video.

Hi, my name is Mary Tersigni and I am a lawyer with Feldstein Family Law Group. Today I am going to talk to you about equalization and unequal division of net family property.

When a married couple separates in Ontario, s. 5 of the Family Law Act governs the process known as equalization of net family properties. Although the law has attempted to ensure that individuals walk away from a marriage in an equitable way with the process of equalization, there can be situations where equalizing property would be unfair to one of the parties. For this reason, s. 5(6) of the Family Law Act provides the Court with the discretion to order an amount that is more or less than half of the difference between the parties’ respective net family properties. This is known as an unequal division of net family property.

In order for a Court to determine whether it should award an amount that is more or less than half of the difference between the parties’ respective net family properties, the Court must look at all of the factors outlined in s. 5(6) of the Family Law Act. Some examples of the factors to consider include the intentional or reckless depletion of one’s net family property, or the fact that an equalization payment would be disproportionately high given a period of cohabitation that is less than five years. Again, these are not the only factors which a Court will consider in making this determination.

Before a Court will award an unequal division of property, it must be satisfied that the equalization payment owing from one party to another based on a standard calculation of such a payment would be “unconscionable” in the circumstances. It should be noted that the threshold for showing “unconscionability” is exceptionally high. Circumstances which are “unfair”, “harsh”, or “unjust” do not meet the test. It has been held that in order to be considered “unconscionable,” an equalization of the parties’ net family property must “shock the conscience of the Court” in the circumstances. The onus is on the party who is claiming an unequal division of net family property to meet this very high threshold.

That having been said, while it is very difficult to prove a claim for unequal division of net family property, there are situations which would “shock the conscience of the Court” and in these circumstances, s. 5(6) of the Family Law Act is an important tool to ensure that the parties are walking away from the marriage in an equitable way.

If you would like to learn more about equalization, visit our website at www.separation.ca. If you need legal advice about your own situation, please call us to schedule an initial consultation. Thanks for watching.