An Unequal Division Of Net Family Property Or How Unfair Does Unfair Have To Be or What Property Division If Together Less Than 5 Years

Date: 18 Jun, 2019| Author: Fred Streiman

The Family Law Act for married couples (not common law) contains a formula for the division of property upon separation. Sometimes simply applying that formula, especially when one person brought into the marriage the matrimonial home, can produce an extremely unfair result. The Family Law Act does provide a provision for a division other than strict adherence to an equalization of the parties’ net family property (at times this can result in simply an equal division of everything). In grossly simplistic terms something other than an equal division.

One of the factors pointed out in the Family Law Act is cohabitation of less than five years. Note the Act uses the word cohabitation and not marriage. So if you are only married for a single year, but that follows four years of living together, one would fail to meet the five year period.

So then what does the court do when you are faced with a relationship of less than five years?

While the law, as stated at its judicial highest, such as by the Ontario Court of Appeal in Serra holds that there is no formula, this often is an impractical and far too expensive a process to abide by. The court has a wide discretion and there are numerous cases applying that discretion in many different ways.

However, the practical solution often is to simply use a percentage in this sense that if five years equals 100% of an equalization payment, every year short of that reduces it by 20%. There are numerous cases that exercise that such as Gomez v. Mchale,Sarcino,Kucera, and Kruschenske.

The law states that the process is subtle,variable and sensitive to numerable factors. However, few of us can afford to have those factors explored at the end of a long hearing. Lawyers in the best interest of our clients frequently look to use the crutch of a mathematical formula that has some judicial legitimacy.