An interesting question arose in a recent Ontario case: Should a wife get an unequal share in the division of family property upon divorce, based on the fact that the husband had extra-marital affairs?
The facts involved a couple who had been married 29 years. They had met when the wife was 15 years old and in high school, and he was 24. He worked full-time since their marriage, and the wife worked until the birth of the first of their two children.
They separated, and as part of their divorce proceedings the wife applied to have the family property divided under the Ontario Family Law Act (FLA). When it came time to equalize the couple’s Net Family Property under the provisions of the Family Law Act, the wife claimed that she was entitled to an unequal share on various grounds, including the fact that the husband had had repeatedly cheated on her during the marriage.
The court reviewed the FLA provision (namely, s. 5(6)) that allows for a spouse to get an unequal share where “unconscionability” arises in defined circumstances. That section contains eight factors a court is entitled to consider in assessing the unconscionability of what would otherwise be an equal division:
a) Lack of disclosure of debts/liabilities at marriage;
b) There are debts/liabilities claimed to reduce NFP which were incurred recklessly or in bad faith;
c) A spouse’s NFP consisted of gifts from the other spouse;
d) A spouse intentionally or recklessly depleted his or her NFP;
e) Where the couple lived together less than 5 years, the share received by a spouse would be disproportionately large;
f) One spouse incurred a disproportionately larger amount of debt/liability than the other, in order to support the family;
g) There is a written agreement between spouses that is not a domestic contract; or
h) Any other circumstance relating to acquiring, disposing, preserving, maintaining or improving property.
The court determined that – no matter how morally objectionable or emotionally hurtful the husband’s conduct may have been – the court was not entitled to compensate for it with a higher award to the wife in this case. On a straightforward reading of the eight factors, the husband’s affairs did not fall into any of the categories; most notably, the husband’s affairs did not have any significant effect on the couple’s debts, liabilities, or property. As the court wrote:
 The wife seemed to think that the nature, extent, or duration of the extramarital affairs engaged in by the husband, his having left evidence of the affairs where the wife could and did find it, or his having allowed one or more women to discover where he was living, so that the wife had to speak to or otherwise deal with one or more of these women, came within the enumerated considerations in section 5(6).
 A somewhat similar argument was raised before me in Biant v Sagoo,  OJ no 1685 (SCJ Fam Ct), where the wife sought compensation under section 5(6) for a sum of between $20,000 and $50,000 spent by the husband over a number of years on jewellery and travel for “the mistress”. In rejecting the wife’s claim, I said (at para 126),
It would be a novel proposition that a philandering spouse is responsible under subsection 5(6) for paying to the other spouse a sum equal to the cost of an affair, either direct costs (jewellery and such) or indirect costs (diminished profits from business). … There was no evidence that the husband’s expenditures materially affected the family in any way and certainly no evidence that the wife has been called on to shoulder any portion of them.
 However morally objectionable or emotionally harmful the husband’s conduct may have been in this case, it is only open to the court to respond to it under section 5(6) if it falls within one of the eight clauses of that provision. There was no evidence in this case that the husband’s affairs had any significant effect on the parties’ debts, liabilities, or property. There is accordingly no remedy under section 5(6) for the matrimonial misconduct of the husband. Indeed, section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.
Having rejected this line of argument, the court went on to assess other legal aspects of the parties’ respective claims.
For the full text of the decision, see:
Cosentino v. Cosentino (2015), 2015 CarswellOnt 196, 2015 ONSC 271
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