Unconscionability in Ontario's Family Law Act
When it comes to the division of property during a divorce or separation, the process is typically guided by the principle of equalization. However, there are exceptions to the rule. One such exception is the concept of "unconscionability." This legal term refers to situations where the result of equalization would be so unjust or excessively one-sided that it would "shock the conscience of the court." In this blog post, we'll delve into the concept of unconscionability under Ontario's Family Law Act (FLA).
What is Unconscionability?
Under the FLA, there are very limited circumstances where the equalization payment can differ from the standard calculation. When such an order is made, it is called an "unequal" equalization. To be deemed unconscionable, the result must meet certain specific conditions set out in the FLA. The primary ones include:
A marriage that has lasted less than five years (including cohabitation before marriage)
A non-enforceable agreement between the spouses not to share or to equalize
Improvident depletion of net family property, such as gambling debts
Gross misconduct during the marriage that amounts to a virtual repudiation of the marital partnership
It's important to note that findings of unconscionability and subsequent orders for unequal division of net family property are extremely rare. However, when such an order is justified, the court can order one party to pay more or less than the difference between net family properties to the other.
Case Law on Unconscionability
There have been a few notable cases that have shed light on how courts interpret and apply the concept of unconscionability. For instance, in the Court of Appeal for Ontario case of Von Czieslik v. Ayuso 2007 ONCA 305, the court awarded the wife 100% of the husband’s net family property.
Similarly, in the 2009 decision of Serra v. Serra 2009 ONCA 105, the Court of Appeal for Ontario found a severe decrease in the payor’s net worth after the valuation date to be unconscionable under section 5(6)(h) of the FLA when it was beyond the control of the owner and not merely a general market decline. As a result, the court decreased the equalization owed.
Conclusion
Understanding the concept of unconscionability can be essential in cases where the standard equalization of property would result in an unjust outcome. While these situations are rare, they highlight the necessity for fairness and equity in the division of property upon marriage breakdown.
Given the complexity of these situations, it's crucial to seek the advice of a family lawyer who can provide tailored guidance based on your specific circumstances. Remember, every case is unique, and having a legal professional on your side can ensure that your rights and interests are protected.
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