Hi, my name is Shilpa Mehta and I am an associate with Feldstein Family Law Group. In this session, I will be discussing how family law in Ontario deals with property division in marriages that are less than five years in duration. I ask viewers to review our other blogs dealing with the legal concept of equalization before watching this blog so that they are aware of how this computation is completed.

Under s. 5(6) of the Family Law Act Section 5(6) (e), it allows for an unequal division if equalization would be unfair based on a period of cohabitation of less than five years' duration.

In the 2017 Court of Appeal decision in Gomez v. McHale the court specifically dealt with determining the appropriate equalization payment in short term marriage. In that case, the parties cohabited for less than five years, then upon separation had a dispute about the equalization of their net family property.

Under the expanded rules for summary judgment in Ontario, the wife moved for summary judgment with respect to her calculation of the net family property. The wife sought a judgment for $268,000 being the full calculation or alternatively 4/5 of that amount, or $214,000, presumably on the basis that the period of cohabitation was 4/5 of the five-year period. The husband sought summary judgment dismissing the plaintiff's claim for an equal or unequal amount of net family property given that he brought the home into the marriage and that the period of cohabitation was under five years.

The wife argued that the trial judge erred by going outside the parameters of the motions before him. That is, she argued that the motions court judge could only make an equal distribution of net family property or grant her an unequal 4/5 distribution or grant partial judgment in some amount and direct the balance to proceed to trial. The Court of Appeal bluntly pointed out that this is not the way motions for summary judgment, especially dueling motions, work. They noted that the trial judge was entitled to consider all of the evidence under section 5(6) of the Family Law Act and determine whether an unequal division was appropriate, and if so, what the quantum of award should be.

The wife argued that the motions judge should have followed a mathematical formula for calculating the unequal division of net family property given the cohabitation period of less than five years. There have been some Ontario cases that did apply a mathematical formula by fixing an unequal division of net family property as a percentage of the five-year statutory period.

The Court of Appeal rejected that argument. They pointed out that while a mathematical formula may be of assistance in some cases, the trial judge did not err by failing to apply it in this case. He did exactly what section 5(6) requires by looking at all of the evidence, finding that an equal division would be unconscionable and fixing what he regarded as a reasonable figure.

In the end, the wife in this case was awarded $60,000 in equalization although the presumptive equalization payment owed to her was $268,000. This case is reflective of the fact that each case of unequal division is decided on a fact specific basis and therefore, it is important for parties faced with this sort of situation consult with an experienced family law lawyer to ensure that the facts of their case are properly canvassed before a judge.

If you require further information regarding this matter or simply wish to consult with a family law lawyer about the separation and divorce process, please contact us at 905-415-1636 to schedule a consultation.

Thank you for taking the time to watch this presentation, and I hope that you have found it helpful. Please also visit our website at www.separation.ca.

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