January 9, 2025 – Cohabitation and s. 5(6), Family Law Act

“Before further analyzing the issue, I note that I raised with counsel the fact that the parties’ marriage lasted only about 3.5 years. I questioned whether that fact in itself may be sufficient to reduce the Applicant’s claim for equalization in light of s. 5(6)(e). That provision allows a court to consider unconscionability within the context of “a period of cohabitation that is less than five years”. Having received the Applicant’s submissions, I am satisfied that the provision looks to a period of cohabitation, not marriage: Pope v. Pope, 1999 CanLII 2278 (ON CA), [1999] O.J. No. 242; 170 D.L.R. (4th) 89 (Ont. C.A.), at para. 32; Janjua v. Khan, 2013 ONSC 44, at para. 60. Here, the period of cohabitation was seven years, including the cohabitation during marriage. Thus s. 5(6)(e) does not apply to diminish the Applicant’s claim to equalization or unequal division of the parties’ NFPs.”

            Daciuk v. Daciuk, 2023 ONSC 70 (CanLII) at 22

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