Unfair vs Unconscionable
The Ontario Court of Appeal in its December 2012 judgment in Symmons v. Symmons reviewed a Trial decision that involved many complicated and interacting factors. In that case, the parties first lived together for almost 6 years, married in 1999 and separated 10 years later. However, the husband was 13 years older than his now estranged bride and he had retired. Because of the age gap, the pension the husband had earned at work had vested fully, including the survivor’s benefits to be enjoyed by his now former spouse. Those survivor benefits were deemed to be worth over $300,000.
The wife was very unhappy that this was being tagged as an asset that she would have to now share with her retired husband and attempted to convince the court that is was unfair and indeed it met the test of unjust enrichment or alternatively an unconscionable division under Section 5 (6) of the Family Law Act.In the end, the Ontario Court of Appeal said no, holding that it was not unconscionable (which one might describe as being unfair on steroids), because the wife’s net worth had increased substantially during the marriage and taking into account the survivors benefit amongst other factors. The Court did equalize the survivors benefits.
I have in this article used the words unfair and unconscionable rather loosely, which is incorrect. For married parties, the property division scheme is set out in the Family Law Act. It is a very precise formula which must be followed.A spouse may argue that to blindly follow the formula would produce an unconscionable result and therefore the court should use its discretion and order a different result.
The drafters of the Family Law Act very specifically chose the word unconscionable rather than unfair. Unconscionable means a result that would shock the conscience of the court and its threshold is exceptionally high. This area of law has been litigated many times since the enactment of the Family Law Act. To determine whether or not a fact situation has a reasonable chance of meeting that test requires a lengthy and detailed examination with a qualified family law lawyer.