



COURT OF APPEAL FOR ONTARIO

CITATION: Booth v. Bilek, 2021 ONCA 128

DATE: 20210302

DOCKET: C68248

Strathy C.J.O., Brown and Miller
    JJ.A.

BETWEEN

Clifford
    Alan Booth

Applicant
    (Respondent)

and

Michelle Yvette Marie Bilek

Respondent (Appellant)

Paul D. Slan, for the appellant

Shawn M. Philbert, for the respondent

Heard: February 8, 2021 by video conference

On
    appeal from the order of Justice Gisele M. Miller of the Superior Court of
    Justice, dated March 10, 2020.

REASONS FOR DECISION

OVERVIEW

[1]

The parties, who were married, separated after
    four years and four months of cohabitation. There are no children of the
    marriage.

[2]

The sole issue on this appeal is the equalization
    of net family property. Section 5(6) of the
Family Law Act
, R.S.O.
    1990, c. F.3 (the Act) permits the court to vary a spouses share of net
    family property if the court is of the opinion that equalizing the net family
    properties would be unconscionable.

[3]

Here, the trial judge declined to award the
    appellant an amount that would equalize the parties net family properties
    under s. 5(1) of the Act, given: (1) the extent to which the appellants 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.

[4]

The trial judge awarded the appellant $10,627.45,
    or 10% of the full amount that would equalize the parties net family
    properties, namely $106,274.49. The appellant had already received
    approximately $200,000 from the sale of the matrimonial home.

[5]

There is no dispute that the trial judge correctly
    identified the governing law. She considered appropriate factors under the
    legislative provision permitting a variation of share, as well as the relevant
    case law.

[6]

The appellant argues, however, that the trial
    judge erred in concluding that: (1) full equalization would be unconscionable
    under s. 5(6) of the Act; and (2) 10% of the full equalization payment would be
    just and equitable. The appellant argues in the alternative that an unequal
    division of 87% would be appropriate, tracking the length of the marriage.

[7]

As explained below, we do not agree that the
    trial judge erred either in finding that full equalization would be unconscionable,
    or in her exercise of discretion in setting the appropriate payment at 10% of
    the amount that would fully equalize the parties net family properties.

ANALYSIS

(a)

Unconscionability

[8]

The trial judge concluded that an award of full
    equalization would be unconscionable, per s. 5(6) of the Act, considering: (1)
    the extent to which the appellants net family property derived from gifts from
    the respondent; (2) the disproportion between full equalization and the
    duration of cohabitation; and (3) the fact that the respondent was almost the
    sole financial contributor to the property owned by the parties during the
    marriage.

[9]

The trial judge found that the appellant had
    benefitted financially from the comparatively short marriage. The appellant
    received $199,302.87 as half of the proceeds of sale of the matrimonial home, despite
    having made no direct financial contribution to its purchase. Although the
    appellant contributed $16,000 to the cost of renovating the first matrimonial
    home, those funds had come from the sale of her condominium, which in turn had been
    entirely financed by the respondent before their marriage. The appellant had used
    the balance of the proceeds of sale of the condominium (approximately $33,000)
    to pay off her personal debt. The trial judge also found that the appellant had
    benefitted from the gift of wedding and engagement rings from the respondent, worth
    in excess of $87,000.

[10]

The trial judge found that the difference between
    the parties respective net family properties at separation was attributable
    almost entirely to the growth of the respondents investments over the course
    of the marriage. The trial judge also noted that the respondent had not made
    any contributions to these investments during the marriage, meaning that none
    of the family income earned during the marriage had been used to finance them. The
    trial judge also found that at the time of trial, the respondent was 69 years
    old, retired and in addition to CPP and OAS, was living solely off the income
    generated by his investments. The appellant was 46 and had become
    self-supporting.

[11]

The trial judge correctly observed that the
    threshold for unconscionability under s. 5(6) of the Act is high and not
    satisfied by a finding of mere unfairness:
Serra v. Serra
, 2009 ONCA 105,
    93 O.R. (3d) 161, at paras. 47-48. The high bar for unconscionability precludes
    trial judges from undertaking a minute parsing of the parties relative
    contributions to the marriage. It also promotes the goal of certainty in family
    law disputes.

[12]

For the vast majority of cases, s. 5(1) sets the
    default rule that upon marriage breakdown, the spouse whose net family property
    is the lesser of the two net family properties is entitled to equalization.
    This presumption can only be displaced where equalization would be unconscionable,
    as assessed using the criteria set out in s. 5(6) and guided by the purpose articulated
    in s. 5(7).

[13]

Section 5(6)(e) of the Act specifically
    identifies that a period of cohabitation less than five years is relevant to
    whether full equalization may be unconscionable. This promotes certainty about
    equalization for marriages longer than five years. It also provides notice to parties
    who have been married for less than five years that a court may take a closer
    look at whether equalizing would be unconscionable in the specific
    circumstances of a shorter marriage.

[14]

We do not agree that the trial judge erred in concluding
    that equalizing the parties net family properties would be unconscionable on
    the facts as she found them. She considered the relevant criteria, applied them
    to the facts before her, and came to a reasonable conclusion. The trial judge did
    misapprehend the appellants evidence of when she returned to the work force, which
    the respondent concedes. The appellant returned to full-time work in the last
    year of the parties marriage, and not after the parties had separated, as the
    trial judge found. Nevertheless, this error was not overriding. It did not bear
    on the factors that led the trial judge to conclude that equalization would be
    unconscionable. In particular, it did not bear on the trial judges finding
    that over the course of the relatively short marriage, the appellant made
    little contribution to the acquisition and maintenance of the matrimonial home
    (or other family assets), and received a sizable benefit from its sale.

[15]

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.

(b)

Unequal division

[16]

Having concluded that full equalization would be
    unconscionable, the trial judge ordered the respondent to pay the appellant 10%
    of the full amount.

[17]

The appellant argues that the trial judge did
    not explain how she arrived at the figure of 10%, and that the reasons in this
    respect prevent meaningful appellate review.

[18]

Furthermore, the appellant argues that the trial
    judge did not give appropriate weight to the length of the marriage. She contends
    that the trial judge ought to have applied a formula that pro-rates the equalization
    payment according to the length of cohabitation. As the parties cohabited for
    52 months, the appellant argues that any unequal division should be calculated
    at 87% of full equalization (52/60 months), which would entitle the appellant
    to $92,458.80.

[19]

We do not agree that the trial judge made any
    error in the exercise of her discretion. Although applying a mathematical
    formula based on the length of the marriage provides the benefit of certainty,
    neither the Act nor relevant case law requires the trial judge do so. As this court
    held in
Gomez v. McHale
, 2016 ONCA 318, 79 R.F.L. (7th) 305, at paras.
    11-12:

In several cases, courts have looked at the actual period of
    cohabitation (e.g. 48 months) and then fixed an unequal division of net family
    property using that period as a percentage of the five year statutory period,
    i.e. 48/60 = 80 [percent]).


Although a
    mathematical formula may be of assistance in some cases, we do not think that
    the motion judge erred by not applying it in this case
.
He did what s. 5(6) of the

FLA

requires. He looked
    carefully at the backgrounds of both parties, determined that an equal division
    would be unconscionable, and fixed what he regarded as a reasonable figure.
    We see no error in the motion judges approach. [Citations omitted; emphasis
    added.]

[20]

Similarly, it was not an error for the trial
    judge to reason as she did, and not to apply the mathematical formula proposed
    by the appellant. Contrary to the appellants argument, the trial judges
    conclusion was neither unreasoned nor unjustified. Paragraph 37, which contains
    a bare statement of the trial judges conclusion, is not the whole of the
    analysis and must not be read as though it were unconnected to the preceding paragraphs
    that first recite the trial judges factual findings and then analyze the
    parties obligations using the criteria set out in s. 5(6). The trial judges ultimate
    conclusion  that the appellant is entitled to 10% of full equalization  was a
    reasoned conclusion flowing from the findings that preceded it.  Her findings give
    an ample basis for understanding why she choose not to apply a mathematical formula,
    as was done in
Zheng v. Xu
, 2019 ONSC 865, 23 R.F.L. (8th) 436. The
    facts of that decision, although involving the dissolution of a marriage of similar
    duration, is dissimilar in many other relevant respects. Unlike in
Zheng
,
    the appellants only financial contribution to the matrimonial home (or any
    other family property) came from property that she had first received as a gift
    from the respondent. To have applied the time-weighted approach in this case
    would have required the trial judge to ignore the relevant differences between
    the two cases.

DISPOSITION

[21]

The appeal is dismissed. Costs of the appeal are
    awarded to the respondent in the amount of $20,000 inclusive of HST and
    disbursements.

G.R.
    Strathy C.J.O.

David
    Brown J.A.

B.W.
    Miller J.A.


