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Does Large Age Gap Between Spouses Dictate an Unequal NFP Division?

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Does Large Age Gap Between Spouses Dictate an Unequal NFP Division?

The old-fashioned term for it is a “May-December” marriage, where one spouse is considerably younger than the other. Think Ashton Kutcher and Demi Moore (and we all know how that worked out!).

In a recent case called Dnistrianskyj v. Savard, the much-younger wife raised the argument that she should be awarded an unequal division of Net Family Property (NFP) because she had married very young to an older man, and that unless there was an adjustment she would not get sufficient financial support from him now that he was on the brink of retirement.

The woman worked as a babysitter for the husband and his first wife from the time she was approximately 12 years old. The woman and the first wife became friends, and she would sometimes accompany then on vacations to help with the care of the three children.

When the husband was 36 and the woman was 17, the first wife died suddenly from a heart-related issue. Only a few months later, the husband initiated a sexual relationship with woman; because the husband was an RCMP office and he was concerned about being found cohabiting with a minor, they hid the relationship for a time, especially from the children and the first wife’s parents. Nonetheless, they eventually moved in together “officially”, and were married in 1989. They separated about 20 years later.

The court chronicled the wife’s complaints in the period leading up to separation this way:

During that time, the relationship between the parties was experiencing difficulty. [The wife] indicated that there was a sense that [the husband] saw her role within the marriage as a “maid with benefits”, meaning that her job was to do the childcare, cooking and housekeeping, as well as to satisfy [the husband] in the bedroom. He insisted that she not be involved in family finances or in decisions regarding “his” family, notwithstanding that they were married and she was the primary caregiver for [the three children]. [The wife] said that she was young compared to him and vulnerable, as she was not working and was estranged from her family. If she argued with his authority, he would threaten divorce and, at times, would pack her suitcase and take her to a hotel. After staying a night she would need to beg him to be allowed to come back. He would, at times, take her car keys away from her. Letters written by [the husband] supported her view of the relationship during this time.

Against this background, and in addition to numerous other legal issues, the court considered the valuation of the wife’s share in connection with their respective NFP amounts. It noted that the court had the discretion to award a spouse an amount that is greater or less than the NFP in cases where to do otherwise would be “unconscionable”, having regard to various specific factors.

Noting that the test of unconscionability is exceptionally high, and that it covers scenarios that “shock the conscience of the court”, the court evaluated the wife’s claim that her overall circumstances were unfair considering her contributions to the husband’s family, the age difference, the need to be re-educated after separation, and especially the period of cohabitation before marriage when she was only 17 years old. She claimed that these considerations were not adequately addressed by whatever spousal support she might receive in the divorce settlement.

In response to this, the court said:

However, in her evidence [the wife] did not present herself as someone who was weak or oppressed, or wronged by what turned out to be her life. Without a doubt she was young and vulnerable when she started her relationship with [the husband]. But she was also headstrong and determined. Her parents tried to alter the path she was on, with no success. In her evidence, [the wife] said that she recognized her own responsibility in choosing her circumstances, and that she made those decisions as she loved [the husband] and she loved his children. With the hindsight of a 44 year old adult, she said that she did not regret much. She certainly grew and matured with time, dealing with some very difficult issues within the family with dignity and composure.

As a result, the court found that the requisite level of “unconscionabilty” was not met in this case, to the extent that an unequal division of NFP should be ordered. The court concluded:

[The woman] had a general sense of the unfairness of having married very young to an older man who was now seeking to withdraw from the workforce when she would benefit from his financial support. I accept that. However, I am unable to find that this rises to the level of unconscionability under [the Family Law Act] such that it shocks my conscience. I also find that the relief under [the Act] must be tied to the acquisition, disposition, preservation, maintenance or improvement of property, and that has not been made out in this case.

For the full text of the decision, see:

Dnistrianskyj v. Savard, 2014 ONSC 2152, 2014 CarswellOnt 4242

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com