“Ordinarily a party required to make an equalization payment must make the payment right away. However, s. 9(1)(c) of the Family Law Act gives the court discretion to order payments in instalments for a period of up to ten years, “if necessary to avoid hardship”.
Mrs. Symmons submits that the trial judge ought to have allowed her to satisfy the equalization payment to Mr. Symmons over a period of seven years. She points out that she cannot access her survivor benefits now, and may not be able to do so for years. Thus, it would have been reasonable to allow her to pay in instalments.
There is some merit in Mrs. Symmons submission. However, we are not satisfied that she has met the statutory standard of “hardship” to justify an order under s. 9. An important factor in deciding whether equalization should be paid in instalments is whether the payor spouse has funds available to pay a lump sum: Serra v. Serra(2007), 2007 CanLII 2809 (ON SC), 36 R.F.L. (6th) 66, varied on other grounds, Serra v. Serra, 2009 ONCA 105 (CanLII), at para. 158. Mrs. Symmons has already paid $60,000 of the equalization payment. She has assets in excess of $300,000 to satisfy the remaining $57,000 payment. We therefore decline to order instalment payments.”