Does Adultery Permit a Spouse to Seek a Larger Equalization Payment?


The breakdown of the marriage is the primary ground for spouses seeking a divorce. The Divorce Act establishes that a breakdown of the marriage is established if the other spouse has committed adultery. Apart from being included as a basis for seeking a divorce, adultery itself is not directly relevant to most proceedings, as Canada has a no-fault approach to family law. Courts will not use a spouse’s adultery to punish a party, nor will it usually be relevant to the calculation of spousal support or impact the division of family property. However, there may be an exception if the infidelity has directly impacted or dissipated family assets.

Matrimonial Misconduct Alone Doesn’t Entitle a Spouse to an Unequal Division of Property

In Cosentino v. Cosentino, the parties separated after the wife discovered the husband’s infidelity. The wife claimed an unequal division of net family property was appropriate on the basis that the husband’s conduct entitled her to a greater share of the family property. Section 5(6) of the Family Law Act permits a court “award a spouse 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”. 

In Merklinger v. Merklinger, the court found that the threshold of unconscionability is set very high. As the court explained, “the legislature deliberately chose to strictly define the severity of the result of the application of s. 5(1) which must pertain before there can be any judicial intervention. The result must be more than hardship, more than unfair, more than inequitable”. 

Court Can Only Order Unequal Division of Property if Conduct Falls Within Enumerated Clauses

In Cosentino, the court noted that the possible considerations in deciding whether the threshold of unconscionability has been met is not open ended, and that a “general sense of outrage, absent a clear connection to the parties’ debts, liabilities, or property, is not sufficient”. Although the wife suggested that the nature, extent, or duration of the husband’s extramarital affair fell within the considerations in section 5(6), the judge concluded that regardless of how morally objectionable or emotionally harmful the husband’s conduct may have been, the court can only respond to it with an unequal division of property if the conduct falls within one of the eight enumerated clauses under that provision. 

In Cosentino, the court found that there was no evidence that the husband’s affair had a significant impact on the parties’ debts, liabilities, or property. Additionally, “it is the financial result, the result of the usual NFP equalization, that must be unconscionable, after taking into account only the eight enumerated considerations, nothing else”. Consequently, matrimonial misconduct on its own would not give rise to a remedy under section 5(6) and the court noted that this provision was drawn to exclude consideration of matrimonial misconduct. 

Equalization Focuses on Financial Consequences Not Immoral Conduct 

In Frick v. Frick, the wife initiated proceedings including a claim for equalization of net family property, which included her assertion that the husband recklessly depleted his net family property by spending money on extra-marital affairs. The wife’s application referred to the husband’s ten-year affair but also referenced the husband’s conduct. The husband moved to strike these portions of the wife’s application, and the motion judge ultimately struck the wife’s full claim for unequal division of property. The issues were considered by the Ontario Court of Appeal. 

Originally, the motion judge determined that the claim for an unequal division of net family property could be struck on the basis that it disclosed no reasonable cause of action. The motion judge considered cases where the claim was based on extra-marital misconduct and determined that section 5(6) of the Family Law Act was not focused on immoral conduct but on financial consequences. Here, there was no evidence that the husband’s affair had a significant impact on net family property, so the wife’s claim could not succeed. However, on appeal, the court disagreed with the motion judge’s approach, finding that it was incorrect to eliminate the claim for an unequal division of property at the pleadings stage. While it was clear that there is a high threshold for a claim to succeed under section 5(6), it can only be evaluated after the equalization payment is calculated. It cannot be made on a pleadings motion, so the wife’s claim should not have been struck at the pleading stage. 

Court Finds Document Describing Husband’s Affairs is Inflammatory

The husband also sought to strike portions of the wife’s application pursuant to rule 1(8.2) of the Family Law Rules, which permits courts to strike out part of the document if it is “inflammatory, a waste of time, a nuisance or an abuse of the court process”. In the husband’s view, parts of the wife’s pleadings were inflammatory and were designed to personally attack him. The court explained that “the practice of family law has evolved over the last decades in an attempt to eradicate allegations of marital misconduct unrelated to financial consequences”. Additionally, fault grounds for divorce have largely been replaced. The court also recognized that this philosophy of family law is based on the understanding that litigation “has the potential to leave families worse at the end of the case” and that resolutions are the preferred outcome, and that “inflammatory allegations impede resolution”. 

For the Court of Appeal, the statements in the documents about the husband’s conduct were inflammatory and provided a means to “question the husband about his extra-marital conduct, not about his net family property”. This was an issue as the Ontario Court of Appeal had previously confirmed that, when considering an unequal division of net family property, it is the financial consequences of a party’s conduct – not the conduct itself – that is relevant. As such, reference to the husband’s “ten-year affair” did not offend the rule, but extended questioning about his conduct that was unrelated to financial consequences and was not justified. 

Adultery Will Usually Not Impact the Division of Property 

While a spouse’s adultery will not usually impact the equalization of net family property, parties can cite adultery when pursuing an unequal division of property. Generally, marital misconduct is not relevant, and equalization is conducted based on the respective financial standing of the spouses with the equal division of family property

Contact Johnson Miller Family Lawyers for Advice on Complex Property Division Matters

If you have questions about making a claim for unequal property division or are involved in a high-asset divorce, contact the experienced Windsor family lawyers at Johnson Miller Family Lawyers. We will guide you through the process and will advise you of your options moving forward. To speak with a member of our family law team or to schedule a confidential consultation with one of our divorce lawyers, call us at 519.973.1500 or contact us online

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