The MacDonald & Partners Team, Working for You

Justice Stewart felt that the husband’s conduct was unconsciounable thus invoking section 5(6) but felt constrained by the CA decisions of Stone and Berdette to reapportion only the DIFFERENCE in the nfp’s ie $10,466

Wife awarded only $10,466

Wife appealed to Div Court and lost

GSJ retained:

Leave motion to CA, granted

Appeal to CA

Appeal allowed with costs:

Court of Appeal has done a number of things in this decision:

overturned the Divisional Court decision in this case;
created a more effective remedy in section 5(6) FLA;

placed a new cap on section 5(6) not previously recognized.

Let me now try to deal with each of these developments

Divisional Court Ruling:

Dismissed appeal

Felt bound by the CA’s earlier decisions in Stone and Berdette

Please note that in Stone CA Madam Justice Feldman said:

…section 5(6) of the FLA only empowers the court to order an unequal division of the difference in value of the net family property.”

Hence in von Czieslek, Wife gets $10,466!!!!

I bring motion for leave to appeal to CA and guess what?? Justice Feldman is on the panel that grants leave saying:

“It appears that there is confusion in the case law about the meaning of section 5(6) of the FLA.”

A More Effective Remedy:

CA allowed appeal and awarded wife the full value of the husband’s nfp $74,385

said that a grammatical and ordinary reading of 5(6) read in light of the purpose of the statute indicated that a court could order an award of money greater that the difference in nfps

rejected the narrow interpretation of section 5(6)

so now if you can establish shocking conduct such that there is a finding of unconsciounability you can seek an award that is equal to the full value of the opposite sides nfp!!!!

The New Cap:

is it equitable?

Continues a limitation on an award under section 5(6)

If one accepts what Justice Lang in CA said about the grammatical and ordinary reading of the phrase “an amount that is more or less than half the difference between the nfps”

Why should there be any limit on 5(6)

Doesn’t say “more” is limited or that “less” is limited

An even more effective remedy would be to permit a court to award an amount greater than the value of the spouse’s nfp

Remember in von Czieslek wife still lost as husband gave away a $190,000 asset thereby depriving her of $85,000 in EP!!!!!

The argument in favour of this new cap is that it is consistent with the entire scheme of Part 1 of the act in terms of dealing equitably with the parties net family properties NOT to alter ownership or bestow palm tree justice

The MacDonald & Partners Team, Working for You

von Czieslik v Ayuso

Appeal allowed with costs:

Divisional Court Ruling:

A More Effective Remedy:

The New Cap:

YOU DECIDE