Court Cases & Orders

What Kinds of Things “Shock the Conscience of the Court”?

Written by Russell Alexander / (905) 655-6335

What Kinds of Things “Shock the Conscience of the Court”?

When it comes to dividing up the assets of a divorcing couple, one of the basic premises in Ontario family law is that equalization should usually proceed on 50/50 basis, i.e. that there should be an equal division of Net Family Property (NFP).

However – as with so many general rules in family law – there are always exceptions. The Family Law Act, in section 5(6), expressly allows a court to award more or less than half the difference in the NFP in cases where to do otherwise would be “unconscionable”, after considering a lengthy list of factors.

In a case called Serra v. Serra, the Ontario Court of Appeal stated the threshold of what is considered “unconscionable” is exceptionally high, and that circumstances which are merely “unfair’, “harsh” or “unjust” do not meet the test. Nor does an “inequitable” situation between the spouses necessarily amount to an “unconscionable” one, and there is no requirement to show that one of the spouses acted improperly..

Rather, in order to justify an unequal division of NFP, the court must find that to do otherwise (by granting equal division) would “shock the conscience of the court.”

So what sorts of things fall into this “conscience-shocking” category? There are many examples, all of which depend on their particular facts. But to provide a few illustrations, courts in the past have ordered unequal division of NFP where:

• One spouse failed to disclose pre-marriage debts and liabilities, even in a situation where the other spouse neglected to ask about them. (See Roseneck v. Gowling)

• One of the spouses racked up $13,000 in gambling debts. (See Naidoo v. Naidoo)

• The husband incurred debts at bars and with Escort Services. (See Abaza v. Abaza)

• One spouse paid his siblings $400,000 as a “reward” for helping conceal from the wife the fact that he had won $2.5 million in the lottery shortly before separation. (See Helmy v. Helm)

In all these cases, the court decided it would be “unconscionable” to the point of “shock[ing] the conscience of the court” to allow the NFP to be divided equally; the respective courts ordered an unequal division instead, tailored to the individual facts..

Next week, I’ll give you a few examples of cases where – despite some bad behaviour on the part of one of the spouses – the court nonetheless opted for a 50/50 split. Some of those may surprise you.

For the full text of these and other related decisions, see:

Serra v. Serra, 2009 ONCA 105

Arndt v. Arndt (1991), 1991 CanLII 7240 (Ont. S.C.)

Aff’d (1993), 1993 CanLII 480 (Ont. C.A.)

Roseneck v. Gowling, 2002 CarswellOnt 4396 (Ont. C.A.)).

Naidoo v. Naidoo, 2004 CarswellOnt 1475 (Ont. S.C.J.)).

Abaza v. Abaza, 2001 CarswellOnt 1283 (Ont. S.C.J.))

Helmy v. Helmy (2000), 12 R.F.L. (5th) 68, 2000 CarswellOnt 4480 (Ont. S.C.J.)).

Fenn v. Fenn (1987), 10 R.F.L. (3d) 408 (Ont.H.C.)

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.