Last week, TMZ reported that Pamela Anderson filed for divorce from her husband, Rick Salomon, just two days after he won $2.8 million in the World Series of Poker Big One for One Drop. The couple tied the knot this past January, meaning they were married for roughly six months. Under California's community property laws, Pamela likely gets half of those winnings, but would that be the case in Ontario?
Under Ontario's Family Law Act's property division regime, each spouse is entitled to one half of the value of all property acquired during the marriage. Property division is done via a process called equalization where each spouse calculates the value of their assets after deducting or excluding their debts, liabilities, and the value property they bring into the marriage. The resulting sum for each spouse is their net family property. The spouse with the higher amount owes the spouse with the lower amount an equalization payment of one half the difference between them.
To avoid adding his recent poker winnings to his net family property, Rick might attempt to claim that the money as an excludable third-party gift under s. 4(2) of the FLA. However, such an assertion is unlikely to hold water as numerous Ontario cases have demonstrated that similar gambling winnings (i.e lottery prizes) of one spouse are included in their equalization calculation. Even if Rick has not yet received the cash, he holds a present interest in it, which means it falls under the definition of family property inFLA s. 1(1).
Additionally, as Rick is a professional poker player, technically, the money would most likely be considered part of his earnings under the Income Tax Act. He would be required to include it in his financial disclosure for the purposes of property division as it was won during the marriage. Presuming that the couple separated at the time of the divorce filing, after Rick won the money, then Pamela will likely be entitled to share in the $2.8 million.
However, if the couple separated prior to the Tuesday win, Pamela may be out of luck. What property must be included in equalization calculations is determined by a couple's valuation date. For Pamela and Rick's case, their valuation date is likely to be in accordance with FLA s. 4(1)(a): the date which a couple separates and there is no reasonable prospect that they will resume cohabitation.
Since there are few available facts pertaining to the circumstances of their separation, it is uncertain whether the Thursday Pamela filed divorce papers is the date of separation. If the relationship actually ended prior to the tournament, then it is possible that their separation pre-dates the One Drop prize. If so, their valuation date could be one that excludes the $2.8 million as the win would have occurred after separation. The onus would be on Rick to prove that they separated before the game date and that they were unlikely to resume the relationship before then.
Alternatively, if Rick is unable to exclude the prize money from his net family property calculation through either of the above means, he might attempt an application for unequal division to avoid splitting the money 50/50 with Pamela.
The courts have the discretion to depart from equalization and award unequal division under a few limited scenarios outlined in FLA s. 5(6) when a spouse can demonstrate that equal sharing would be unconscionable in their circumstances. In this case, Rick would claim under s. 5(6)(e) that equalization would result in Pamela receiving a disproportionately large share of his assets given the shortness of their marriage and the amount of time they lived together. He must satisfy the court that the disproportionateness of an equal share in relation to the length of their marriage is one that 'shocks the conscience of the court' in the circumstances; mere unfairness, unjustness, or harshness does not rise to the level of unconscionability.
Overall, unconscionability is a highly strenuous test to meet. Whether Rick could succeed in such a claim depends on whether it would be equitable in the court's eyes for Pamela to share in the prize money given all the relevant circumstances.