As of June 2026, defending a Section 5(6) claim requires proving that an equal 50/50 split of your net family property does not “shock the conscience” of the court. You must demonstrate that any debts incurred or assets spent during the marriage were done with your spouse’s knowledge or for the benefit of the family.
The foundation of family law in Canada is that a marriage is an equal economic partnership. Under the Ontario Family Law Act, when a couple separates, the wealth generated during the marriage is typically split straight down the middle through an equalization payment. However, there is a very narrow exception to this rule: Section 5(6). If your former spouse is claiming that an equal division would be “unconscionable,” they are asking the judge to penalize you financially.
Being accused of unconscionable behaviour is serious. 📝 Your ex-spouse might claim you recklessly depleted family savings, hid massive gambling debts, or intentionally destroyed their credit. Defending yourself against these allegations requires a strategic, evidence-based approach. The Superior Court of Justice sets a notoriously high bar for granting unequal division. This guide will show you how to protect your rightful share of the family assets and prove your financial conduct was transparent.
Step-by-Step Process for Defending a Section 5(6) Claim
Whether you are litigating in Hamilton, Brampton, or Kitchener, the legal test remains identical. Because a successful Section 5(6) claim can cost you hundreds of thousands of dollars, hiring a highly skilled family lawyer is crucial for your defence.
Step 1: Analyzing the Allegations
The first step is to scrutinize your ex-spouse’s court Application. 🔍 The law outlines specific grounds for unequal division, such as intentionally failing to disclose massive debts before marriage, reckless depletion of net family property, or incurring debts to support a secret addiction. You and your legal team must identify exactly which specific clause of Section 5(6) they are relying on.
Step 2: Gathering Counter-Evidence
A claim of “reckless depletion” is often defeated by proving mutual participation. If your ex claims you blew $100,000 CAD on a failed business venture, you must produce bank statements, emails, or signed loan documents showing that they were fully aware of the business and consented to the risk at the time. Bad investments are not automatically “unconscionable.”
Step 3: Proving Benefit to the Family
Another strong defence is proving that the debt in question actually benefited the household. 💵 If you secretly accumulated $50,000 CAD in credit card debt, but you can trace those purchases to family groceries, children’s clothing, and home repairs, the court is highly unlikely to penalize you. The debt must be truly selfish (like gambling or affairs) to trigger an unequal division.
Step 4: The “Shock the Conscience” Legal Test
Your lawyer’s primary job in drafting your Form 14A Affidavit is to remind the judge of the “shock the conscience” threshold. Ontario courts have repeatedly ruled that simply being a bad spouse, or being irresponsible with money, is not enough. The financial conduct must be so egregious and malicious that an equal split would be fundamentally revolting to a reasonable person.
Step 5: Preparing for Trial or Settlement
Because the bar is so high, many Section 5(6) claims are used as bullying tactics to force a favourable settlement. 🤝 Once your lawyer presents strong counter-evidence during the discovery phase or at a Dispute Resolution Officer (DRO) conference, the other side will often drop the unequal division claim and settle for standard equalization. If they refuse, you must be prepared to defend your financial history at trial.
How Much Does it Cost in Ontario?
Defending a complex property claim requires extensive financial tracking and aggressive litigation.
| Professional Service | Estimated Cost (CAD) |
|---|---|
| Lawyer Fees (Drafting Defence) | $2,500 – $5,000 |
| Forensic Accountant (Tracing Funds) | $5,000 – $12,000 |
| Questioning / Depositions | $3,000 – $6,000 |
| Full Trial Costs | $20,000 – $50,000+ |
How Long Does the Process Take?
Litigating a Section 5(6) claim significantly delays a divorce. Because both sides must dive deep into historical financial records to prove or disprove reckless depletion, the financial disclosure phase can drag on. Expect the process to take anywhere from 1.5 to 3 years if the matter proceeds to a full trial at the Superior Court of Justice.
Frequently Asked Questions (FAQ)
Does adultery or cheating count as unconscionable behaviour?
No. Ontario operates on a no-fault divorce system. The court does not punish infidelity through property division unless you spent massive amounts of family money specifically on the affair (e.g., buying your new partner a house or expensive cars).
What if I hid a student loan before we got married?
Hiding debts prior to marriage is a specific ground under Section 5(6). However, the debt must be large enough that it fundamentally alters the family’s financial reality. Hiding a small $5,000 student loan will not result in an unequal division.
Will the judge give them 100% of the property?
It is extremely rare for a judge to award 100% of the net family property to one spouse. Usually, if a Section 5(6) claim succeeds, the judge adjusts the split to something like 60/40 or 70/30 to offset the specific financial harm caused.
Can I argue that my ex made more money so we shouldn’t split 50/50?
No. Earning more money than your spouse during the marriage is entirely irrelevant to property equalization. Unequal division is based on bad financial conduct and unconscionability, not income disparities.
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