What is the test for unconscionable conduct in s. 5(6) of the Family Law Act?

Ontario, Canada


The following excerpt is from Panchalingam v. Pathmalingam, 2013 ONSC 4284 (CanLII):

The test for unconscionability is a high one and, as stated in Serra v. Serra at para. 58, it may be rooted in conduct or results: There is no principled reason that I can see, given the language of the Act and its purpose or objects, to confine the word “unconscionable” in s. 5(6) only to circumstances arising from fault-based conduct on the part of one of the spouses. Although unconscionable conduct is obviously an appropriate consideration in determining whether equalizing the net family properties would be unconscionable, in my opinion the true target of the limited exception to the general rule is a situation that leads to an unconscionable result, whether that result flows from fault-based conduct or not. [Emphasis in original.]

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