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Equal division is the default, but the law provides exceptions. Our trial lawyers present the evidence to justify departure from equalization when the default result is unconscionable.
Book My 15-Minute Assessment →FLA s.5(6) Applications | Unconscionable Results | Departure Factors | Trial Advocacy
Section 5(6) of the Family Law Act allows the court to order an unequal division of net family property where equalizing would be unconscionable. The court considers factors including failure to disclose debts at the date of marriage, reckless or bad-faith debts, the role of gifts or inheritances, a short period of cohabitation relative to the amount at stake, deliberate depletion of property, and any other relevant circumstance.
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Under Part I of the Family Law Act, R.S.O. 1990, c. F.3, the default rule upon marriage breakdown is that the spouse with the higher net family property pays an equalization payment equal to half the difference between the two spouses' net family properties. However, section 5(6) provides that the court may award a spouse an amount that differs from half the difference if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to a number of specified factors.
The threshold for departure under section 5(6) is deliberately high. The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 105, confirmed that "unconscionable" means more than merely unfair; it requires a result that shocks the conscience of the court. Despite this high threshold, there are circumstances where departure is warranted and where the evidence, properly presented, can satisfy the court that equal division would produce an unjust result. Lexaltico LLP has the trial experience to present section 5(6) claims effectively, marshalling the evidence and legal argument necessary to cross the unconscionability threshold.
Section 5(6) enumerates several factors the court may consider, including: (a) a spouse's failure to disclose debts or liabilities existing at the date of marriage; (b) the fact that debts or liabilities were incurred recklessly or in bad faith; (c) the part of a spouse's net family property that consists of gifts or inheritances from a third party; (d) the fact that the amount a spouse would otherwise receive is disproportionately large in relation to a short period of cohabitation; (e) the fact that a spouse has incurred a debt to another person for the purpose of depleting his or her net family property; (f) the fact that a spouse has deliberately reduced his or her net family property; and any other circumstance relating to the acquisition, disposition, preservation, maintenance, or improvement of property.
In practice, the most commonly invoked factors are short marriages where one party brought substantially more assets into the relationship, deliberate dissipation of assets by one spouse, and situations where gifts or inheritances dominate one party's net family property but do not receive the full exclusion provided under section 4(2). The Ontario Court of Appeal in von Czieslik v. Ayuso, 2007 ONCA 305, provided guidance on how to apply the section 5(6) factors, emphasising that the court must consider the overall circumstances rather than any single factor in isolation. Lexaltico LLP analyzes each case against all of the enumerated factors to build the strongest possible argument for departure.
Section 5(6) claims are won or lost on the evidence presented at trial. The court requires a clear and compelling evidentiary record that demonstrates why equal division would be unconscionable. This typically requires forensic accounting evidence to trace the origin of assets, business valuation evidence to establish values at the date of marriage and valuation date, documentation of dissipation or bad-faith conduct, and lawyer testimony on the financial consequences of the proposed unequal division. Lexaltico LLP works with forensic accountants, business valuators, and other lawyers to build a comprehensive evidentiary foundation for the claim.
We also defend against unmeritorious section 5(6) claims brought by the other party. In many cases, a spouse facing a large equalization payment will invoke section 5(6) as a litigation strategy to reduce the payment or create settlement leverage. Our trial lawyers are skilled at demonstrating to the court that the equalization result is in fact fair and that the high threshold of unconscionability has not been met. Whether claiming or defending, Lexaltico LLP presents section 5(6) cases with the rigour and precision that trial advocacy demands.
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55 University Ave, Suite 1100
Toronto, ON M5J 2H7
2 Sheppard Ave East, Suite 303, Toronto, ON M2N 5Y7
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Lexaltico LLP
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The difference is practical rather than technical. A page explaining that spousal support is usually indefinite after a twenty year marriage is accurate as a general statement and may be wrong about you, because of a domestic contract you signed, a period of separation you have forgotten, or an income that is not what a tax return says it is.
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