“The discretion to make an unequal division pursuant to s. 5(6) [of the Family Law Act] is strictly limited. The intent of this section is not to alleviate every situation that may be viewed as unfair or inequitable, as equal sharing should occur in most cases. The property sharing upon marriage breakdown scheme in the Act is intended to promote predictability and thereby discourage litigation: Ward v. Ward, [2012] O.J. No. 3033 (Ont. C. A.).
The unconscionable threshold in s. 5(6) required to justify an unequal division is exceptionally high because the policy underlying the Act encouraging finality, predictability and certainty and minimizing the exercise of judicial discretion to the extent possible: Serra v. Serra, 2009 ONCA 105 (CanLII), [2009] O.J. No. 432 (Ont. C. A.)
Serra v. Serra, supra, contains a number of principles as to the interpretation of the relevant sections in the Act and the application thereof including:
(a) post-separation events impacting value is a relevant consideration but not the only circumstance in determining whether equalization would be unconscionable which include but are not limited to fault-based conduct: paras 38, 42, 44, 45, 54 and 55;
(b) the s. 5(6) threshold of “unconscionability” is exceptionally high and involves circumstances that must shock the conscience of the court. Circumstances that are unfair, harsh or unjust alone do not meet the unconscionability threshold: para 47;
(c) unconscionable circumstances has been interpreted as more than hardship, more than unfair, more than inequitable and includes conduct that is harsh and shocking to the conscience of the court and repugnant to anyone sense of justice: para 48;
(d) the Act establishes equalization as the general rule subject to the s. 56 exception: para 57;
(e) if the circumstances result in equalization being unconscionable, the court should then determine what equalization payment would be fair, just and equitable: paras 69, 70 and 94;
(f) the Act is designed to promote the goals of certainty, predictability and finality in the resolution of property matters following separation, based upon the premise in s. 57 that inherent in the marital relationship there is equal contribution, whether financial or otherwise by the spouses to the assumption of joint responsibilities entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in s. 5(6): para 56, 57 and 71; and
(g) judicial discretion with respect to equalization is severely restricted pursuant to s.s 5(7) and 5(6): para 57.”
Kruschenske v. Kruschenske, 2018 ONSC 4342 (CanLII) at 128-130