Canada is still a no fault divorce jurisdiction. The latest Supreme Court of Canada decision tells us that while we are not to look at misconduct, we do consider the consequences of misconduct. Isn't this the same thing? Well, not quite. It will depend on the facts of each case. Certainly, the decision is a window of opportunity for the lovelorn. Only time will tell. Allegations of misconduct may start to leak back into the analysis of relationship breakdown. Nevertheless, the Court stressed "misconduct, as such, is off the table as a relevant consideration." Currently, lawyers and clients are discouraged from going into gory details in Family Court. Judges like to boil down the information to the necessary facts: the children's needs and the parties' financial resources. Beyond that, they do not want to hear about the gruesome and excruciatingly painful details of the breakdown of the relationship and who did what to whom. The decision may, however, encourage spouses to consider their emotional and physical health more carefully when dealing with their financial situations in the context of separation and divorce.
The parties, Mr. and Ms. Leskun, had divorced in 1999. The husband was paying the wife the sum of $2,250.00 per month "until [the wife] returns to full employment, when both entitlement and quantum will be reviewed". The husband applied to have the support terminated in 2003 based on his unemployment, financial problems and the wife's failure to make sufficient efforts to find employment. The wife's emotional suffering caused by the husband's marital misconduct was particularly debilitating. Coupled with her age and poor employment prospects, her case was compelling at all levels. The lower courts decided that the wife was still in need of support and the Supreme Court dismissed the husband's appeal in favour of the wife receiving support.
Despite the sensational headlines, there is more to this tale of woe. The decision was not based solely on the fallout from the affair and the resulting emotional wreckage. The wife had worked throughout the marriage, cashed in her RRSPs and obtained a return of her pension contributions to support the husband while he was at school. The marriage lasted for twenty years and the couple had a child together. When the marriage broke down, the wife was still suffering from an old back injury and had lost her job. In sharp contrast, the husband's financial situation had improved due, in part, to the shared resources of his new wife. Further, he had investments and significant earning capacity.
The Leskun decision does not mean every spouse will be successful in a bid for support based on marital misconduct. The Court looked at the effect of the misconduct on the wife and not at the conduct itself. Although the 1985 Divorce Act does not prevent consideration of a spouse's inability to achieve self-sufficiency when it results from the "emotional devastation caused by the other spouse's misconduct", it is safe to assume other related factors including age, health and employment prospects will also be part of the mix.
Yesterday, the Supreme Court affirmed the policy of the 1985 Divorce Act is to "focus on the consequences of the spousal misconduct not the attribution of fault." Family lawyers will have to do a lot more ground work before they counsel their clients to get on the "bitter bus" and ride it all the way to the bank. Break-ups are horrible and damaging, but let's hope people realize they are still responsible for their own destinies.
Goals of the Divorce Act when Awarding Spousal Support
Self-sufficiency is only one of the four goals set out in the Divorce Act. Section 15.2 (6) provides that spousal support orders should
- recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown
- apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage
- relieve any economic hardship of the spouses arising from the breakdown of the marriage
- in so far as is practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time
Readers are cautioned against relying upon the brief statements in this article. Any editorial comments should not be taken as legal opinion. Inquiries with respect to Collaborative Law, Separation or Divorce should be addressed to a family lawyer.
Meredith Cox is a senior associate in the Family Law Group at Lawrence, Lawrence, Stevenson LLP. With over 12 years experience in advising separating and divorcing clients, she has developed expertise in litigation and negotiation in the areas of property division, child and spousal support, custody and access and domestic contracts. Meredith is a member of the Peel-Halton Collaborative Family Law Practice Group and enjoys speaking to community groups and schools on various aspects of family law.