What is the test for unequal division of net family property under s-s. 6(6) of the Divorce Act?

In keeping with the Respondent’s position that s-s. 6(6) of the Act must be read in conjunction with s-s. 6(8) of the Act, the comments of DesRoches J., (as he then was) in the case of Court v. Cudmore, 2000 PESCTD 35 at para. 31 are helpful. This was a case involving an application under s-s. 6(5) where a claim for unequal division was advanced on the basis of unconscionability. DesRoches J. notes that s-s. 6(8) presupposes that a prima facia equitable division of net family property recognizes the spouses’ joint responsibility for child care, household management and financial provision, and that there has been an equal contribution whether financial or otherwise by the spouses to the assumption of these responsibilities, thereby entitling each spouse to the equalization of net family properties. He then goes on to say “In other words, the Act makes it clear that spouses are entitled to an equal share of their net family properties in recognition of their joint contributions to the family. A spouse should not be entitled to an equalization in circumstances where he or she has failed to perform his or her family duties”. (See para. 31). I take the statement by DesRoches J. as a direction that the court has to look at the facts of the particular case to ensure that the presumptive equal division is appropriate, but should not reward a spouse an equal division of family property where that spouse has failed to perform their family duties. Analysis