WHEN WILL THE COURTS AWARD AN UNEQUAL DIVISION OF MATRIMONIAL PROPERTY?
In general, both spouses are entitled to an equal share of the wealth accumulated by them during the marriage regardless as to who earned more. One can ask for an unequal division of this wealth, however. In Malandra v. Malandra, 2014 ONSC 3533 the Wife made this request. The Husband purchased a café without looking at the prior owner’s books. He then renewed a lease on the property after operating at a loss for 5 years. The Wife argued that she should not have to pay for the Husband’s unwise business decisions.
According to statute, there can be an unequal division of matrimonial property if a spouse spends unconscionably. Unfairness is insufficient. The behaviour must “shock the conscious of the court”.
The Honourable J. Robert MacKinnon considered past cases. Although he did not enunciate a test, he did mention some factors in making the decision:
- Did the spender spend with the intention of denying the spouse of his or her or share of the matrimonial property?
- Did the wronged spouse have an opportunity to stop the spending?
- Did the spender hide the financial losses from the spouse?
- It is insufficient if the spouse had an opportunity to know the household finances but deferred to the spending spouse.
Bad business decisions made in good faith are not “unconscionable”. A big factor is whether reason for the business’s failure was foreseeable or within the spender’s control;