If Husband Was Unfaithful, Should Wife Get Bigger Share of Equalization?
The spouses had been married almost 30 years when they separated. In the course of dividing their family assets in the customary manner (i.e. through the process of equalizing their Net Family Property), the wife took an interesting position: she claimed that she should get a larger share than would otherwise be the case, because the husband had repeatedly cheated on her during the marriage.
Her novel approach was based on s. 5(6) of the Family Law Act, which sets out eight different factors that a court can taking into account when deciding whether to order an unequal division of family property. Those include factors such as whether a spouse failed to disclose information, recklessly spent money, or racked up a disproportionate amount of debt; however, the section makes no mention of adultery or other spousal misconduct.
The court described the wife’s position this way:
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).
In considering this argument, the court recalled its own prior judgment in another case called Biant v. Sagoo, where the wife had likewise asked the court to grant her a larger share of the Net Family Property to account for money the husband had spent on travel and jewellery for his mistress – a sum that totaled somewhere between $20,000 and $50,000 in that case. That prior court had rejected the idea, stating:
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.
The court applied the same reasoning in rejecting the wife’s position in Cosentino. Although the husband’s conduct may very well have been morally objectionable and emotionally harmful, the court’s hands were tied: It could consider only the factors in s. 5(6), none of which related to adultery. Indeed, the listed factors for consideration were very tightly-drafted to deliberately exclude extramarital affairs and similar spousal misconduct.
Here, there was no evidence that the husband’s affairs had any significant effect on the couple’s debts, liabilities or property during the marriage. Certain expenses by the husband that the wife objected to did not relate to his clandestine affairs, and in any event took place after separation.
The court rejected this particular argument by the wife, but – after considering other various arguments by both spouses – went on to make an award as to the proper division of the former couple’s assets.
For the full text of the decisions, see:
Cosentino v. Cosentino, 2015 CarswellOnt 196, 2015 ONSC 271
Biant v. Sagoo,  O.J. No. 1685, 2001 CanLII 28137 (Ont. S.C.J.)