Wife Appeals What She Claims Is An Unfair Division Of Property


When couples get separated or divorced, the division of property can sometimes be one of the more complex issues to deal with, especially in situations where children are not involved. In a recent decision issued by the Court of Appeal for Ontario, the court addressed a wife’s claim that a trial judge unconscionably awarded her just 10% of what would have been her equal share of property division.

The original equalization decision

During the original trial, the judge awarded the wife $10,627.45, which was equal to about 10% of what she would have received if the parties’ property was divided equally. However, that did not include the proceeds from the sale of the matrimonial home, which was split equally, with the wife receiving about $200,000.

The trial judge reached their decision by following Section 5 of the Family Law Act, which allows a court to vary a spouse’s share of net family property
if the court is of the opinion that equalizing the net family properties would be unconscionable.” The reasons that an equal division would be unconscionable include:

(1) the extent to which the appellant’s net family property derived from gifts from the respondent;

(2) that a full equalization payment would be disproportionate to the relatively short period of cohabitation, and;

(3) the parties’ respective financial contributions to the property they owned during their marriage.

This wife disagreed with this statement, arguing the trial judge erred in concluding that it would be unconscionable to award here an equal share.

Did the trial judge err in awarding such a small amount in equalization of property?

The court looked at the reasoning behind the trial judge’s decision, starting by stating that the wife received $199,302.87 from the sale of the matrimonial home, even though she did not make a financial contribution towards its purchase. While she did use the proceeds from the sale of her condo before moving into the home, the court noted that the condo was purchased by the husband.

The trial judge also looked at the value of the parties’ investments, which had grown during their four years of marriage/cohabitation, but that the investments were made entirely by the husband, and that no family income had been used to finance them.

The last note from the trial judge on property related to the engagement ring and wedding band that were gifted to the wife, and have a value of $87,000.

Finally, the trial judge addressed the current situations of the parties. The husband, who was 69-years-old at the time, was retired and living off of his investments and CPP payments. Meanwhile, the wife was 45-years-old and had become self-sufficient since the separation.

Court of appeal agrees with trial judge

The court found that the trial judge did not make an error, instead stating she considered the relevant criteria and applied the law to the facts, adding, “ It is also relevant that the trial judge found that the appellant was much better off financially than she was at the beginning of the marriage, ‘with little if any financial contribution on her part’, while the respondent had become dependent for his living expenses on income from investments made prior to the marriage.”

The court dismissed the wife’s appeal and awarded the husband $20,000 in costs.

To speak with an experienced Windsor lawyer about complex property division, call 519.973.1500, get started now or contact us online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.



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