“The intent of s. 5(6) of the Family Law Act “is not to alleviate every situation that may be viewed as in some ways unfair or inequitable”: Ward v. Ward, 2012 ONCA 462, 111 O.R. (3d) 81, at para. 25. As the Court of Appeal stated in Ward, at para. 25:
Equal sharing should occur in most cases. The Act creates a scheme for property sharing upon marriage breakdown that is intended to promote predictability and thereby discourage litigation. If courts were to deviate from the scheme of the Act wherever it gave rise to an unfair result, this would have the undesirable effect of encouraging parties to litigate their claims.
…
The next issue for me to determine is whether equalization of the parties’ net family properties is unconscionable, having regard to these circumstances. Matrimonial misconduct is not a factor justifying a variation of shares under s.5(6) of the Family Law Act. The fact that Mr. Bandyopadhyay committed adultery is irrelevant to the analysis. But fault-based conduct relating directly to the parties’ net family properties (e.g. diverting or depleting assets, disposing of property or acquiring debt) is a relevant consideration.
The threshold of unconscionability is high: Ward, at para. 33. It is not sufficient for equalization to be merely unfair or inequitable. There must be circumstances that shock the conscience of the court; Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47.”
Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (CanLII) at 104, 119-120