Should Wife’s “Emotional Costs” of Failed IVF be Accounted for in Equalization? (2024)

When a marriage ends, should the equalization process account for the “emotional costs” arising from numerous failed infertility treatments? That was one of the issues in an Ontario case called Calver v. Calver, where the divorcing spouses underwent a 9-day trial to resolve their financial issues.

The couple had met in 2009, moved in together within a week, and were engaged a month later. They did marry in 2013, but had several separations and reconciliations before splitting for good in 2017.

While the relationship was rocky, one consistent element was their fertility challenges. Although they jointly decided to pursue IVF to have a child together, the wife said she spent $38,000 of her own money on treatments between 2011 and 2013 alone, and a grand total of $76,000 over a six-year period. This included $19,000 paid to a U.S. donor egg bank just before separation. The husband refuted these figures, and also claimed he contributed to the IVF expenses from time to time.

But while allocating the costs of these treatments was one of the financial issues for the court, it was intertwined with assessing the emotional toll of the IVF treatments – and the related disappointments. These were heightened by the fact that in 2013 the couple suffered the loss of a newborn child that they named Coldyn.

One of the wife’s claims was that as part of their equalization process, the court should not only consider the sheer financial costs of the IVF treatments, but also take into account the “emotional and physical costs” related to her having to endure the process repeatedly. She asked for an unequal division of property to take these ups-and-downs into account.

The court began by acknowledging that the wife bore the bulk of the financial expense for the IVF treatments, with the husband contributing occasionally. It also recognized that the whole process took an extra toll on the wife:

I find that the actions of the [wife] from 2011 through to the spring and summer of 2017 did speak powerfully about her rest in having a child born. Even after the devastation of the death in the summer of 2013, of their child who only lived for approximately seven days, she continued the process ofIVF treatments through her grieving and depression over the loss of their child. …

The report from the [wife’s] counsellor … confirms that the “costs” to both parties is considerable not only financially but also emotional duress and stress. It is also both logical and confirmed clinically that that stress can overflow into areas of employment as well as relationships within the marriage. The [husband] in his evidence quite properly recognized that the burden during this process weighed more heavily on the [wife] than him. I took his evidence as relating to the invasive nature of the treatment when the fertilized eggs, in the case of repeated failures, are implanted in the female body and if attachment does not occur, there is a repeat of that process over and over.

But the court declined to adjust the equalization allocation on this specific ground alone. The court explained:

I do not find that portion of the [wife’s] claim for compensation for the emotional and physical cost to be compensable. The loss of her comfort and her mental health issues are part of a very challenging process to which both parents had agreed and through which both parents suffered. If you take the [wife’s] case that it was the respondent who wanted this baby so much to fulfill his seemingly overpowering dream of family farming, it is hard to accept that he was not also greatly disappointed when the IVF process continued to fail. Although people grieve very differently, there is nothing in that scenario of the tragic loss of Coldyn to support a claim of detriment as part of a claim for equitable relief. The question of her carrying the full burden of theIVF payments up until the point of marriage does remain relevant however.

See Also

IVF Cost Calculator - A Pricing Guide

The court went on to scrutinize the respective financial and other contributions of both husband and wife to the marriage, including each party’s contribution to their infertility journey, the dairy farm, their real property investments, and various aspects of their ventures in both Alberta and Ontario.

For the full text of the decision, see:

Calver v. Calver, 2019 ONSC 5418 (CanLII), <https://canlii.ca/t/j2j6s>