“As noted, under the Family Law Act, the spouse with the greater net family property is required to pay the spouse with the lesser net family property one-half of the difference. However, the court has discretion to award an equalization payment that is an amount other than the difference between the two numbers. Section 5(6) of the Family Law Act provides that the court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to, a number of factors, including that the amount of the equalization payment is disproportionately large in relation to a cohabitation period that is less than five years: see section 5(6)(e).
Ms. Erkurt submits that she should not be required to pay Mr. Kara an equalization amount based on one-half of the difference between the net family property amounts. Her submission is based on the fact that the marriage lasted less than five years, their period of cohabitation was a brief 17 months, and that her marriage to Mr. Kara was not a real marriage because Mr. Kara did not marry her with the intention of staying married to her but, rather, with the intention of gaining permanent residence status in Canada.
While a shorter marriage may be grounds for an unequal division in some cases, the section only applies if the “unconscionability” threshold is met and one spouse would receive a “disproportionately large” equalization amount in relation to the cohabitation period. In this case, Mr. Kara is entitled to an equalization payment of $3,660.57. I do not find this amount to be disproportionately large in relation to the cohabitation period, notwithstanding that each of the parties is of fairly modest means.
Further, in order for the court to exercise its discretion in this regard, an equal division of the net family property in the circumstances must be “unconscionable”. As set out in MacDonald v. MacDonald (1997), 1997 CanLII 14515 (ON CA), 33 R.F.L. (4th) 75 (Ont. C.A.), the equalization must “shock the conscience of the court”. This is indeed a high threshold. I accept that Ms. Erkurt is very disappointed that the marriage failed. I also accept her evidence that Mr. Kara told her that he did not wish to be married to her and only used her as a means to immigrate to Canada. However, I do not find that this evidence in and of itself meets the threshold. As Feldman J.A. stated in Ward v. Ward, 2012 ONCA 462 (CanLII), 111 O.R. (3d) 81, at para. 25, referring to the trial judge’s reasons, “the intent of the section is not to alleviate every situation that may be viewed as in some ways unfair or inequitable, because equal sharing should occur in most cases.”