Unequal Division of Family Property for Short-Term Marriages

Understanding How Cohabitation Length Affects Property Division After Separation

Married spouses in Ontario are entitled to the equalization of property pursuant to section 5(1) of the Family Law Act upon separation.  To simplify this family law concept, equalization can be best understood as the equal division of the accumulation of wealth during the marriage.  This, of course, is subject to consideration of certain exceptions, which include various exclusions and unequal division.

Section 5(6) of the Family Law Act permits an unequal division of net family property (i.e. an amount that is more or less than half the difference between the net family properties) if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to:

1. a spouse's failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
2. the fact that debts or other liabilities claimed in reduction of a spouse's net family property were incurred recklessly or in bad faith;
3. the part of a spouse's net family property that consists of gifts made by the other spouse;
4. a spouse's intentional or reckless depletion of his or her net family property;
5. the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
6. the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
7. a written agreement between the spouses that is not a domestic contract; or
8. any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

This article will explore the law regarding unequal division if the period of cohabitation is less than five years (i.e. section 5(6)(e)). 

Is Unequal Division Automatic for Married Spouses Who Have Cohabited Less Than 5 Years?

No.  In order for a claim for unequal division to succeed, not only does one of the enumerated grounds have to be triggered, but a Court must also find that it would be unconscionable to equalize the net family properties.  As discussed in our previous article, the test for establishing unconscionability is exceptionally high.  A result that is simply “unfair”, “harsh” or “unjust” does not alone meet this test. 

How does Unequal Division Fit within a Court’s Analysis When Determining the Equalization Payment?

The Supreme Court of Canada held in Rawluk v Rawluk, [1990] 1 SCR 70, that the assessment of whether equalization would be unconscionable in a particular case is the third step in the equalization process. 

The three steps in the process are as follows:

1. First, a Court must determine the ownership interests of the spouses. 
2. Second, a Court would complete an equalization calculation based on the ownership interests.
3. Third, a Court would then complete an unequal division analysis under section 5(6).

If a Marriage is Less than 5 Years, Does Section 5(6)(e) Apply?

This is a common mistake made by those who do not carefully review the wording of section 5(6).  Section 5(6)(e) permits the consideration of a claim for unequal division if the equalization payment is disproportionately large in relation to a period of cohabitation that is less than five years.

That is, the wording for unequal division in short-term relationships refers to the period of cohabitation and not marriage.  That is, a married spouse who is seeking unequal division under section 5(6)(e) must consider the length of their cohabitation. 

This understanding is confirmed by the Superior Court of Justice in Daciuk v Daciuk, 2023 ONSC 70.

Is a “Standard Formula” Used When the Period of Cohabitation is Less Than 5 Years?

Some Courts have applied a mathematical formula to determine the unequal division of net family properties by determining how many months the parties cohabited before reaching the five-year “threshold” (i.e. 60 months) and applying this percentage to the unaltered equalization payment.  This formulaic approach was best described by the Ontario Court of Appeal in Gomez v McHale, 2016 ONCA 318:

“In several cases, courts have looked at the actual period of cohabitation (e.g. 48 months) and then fixed an unequal division of net family property using that period as a percentage of the five year statutory period, i.e. 48/60 = 80 percent…”

The Court of Appeal in that case found that although the mathematical formula may be of assistance in some cases, it is not necessary to apply it.  In fact, the Ontario Court of Appeal in Booth v Bilek, 2021 ONCA 128, held:

“Although applying a mathematical formula based on the length of the marriage provides the benefit of certainty, neither the Act nor relevant case law requires the trial judge to do so.”

Furthermore, it would be incorrect for a party to immediately jump to this formulaic approach, as a Court must be satisfied that an equal division would be “unconscionable” before determining what a reasonable figure would be.

Speak With a Family Lawyer If You Separated After a Short-Term Marriage

If you have separated from your spouse after a short-term marriage, contact us to schedule a consultation with one of our lawyers to:

1. Understand the property issues in your matter;
2. Understand the process of determining the equalization payment; and
3. Understand whether you or your former spouse may seek unequal division.