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IS FAULT CREEPING INTO DIVORCES?

Several times a year, a client will ask me whether his or her spouse's behaviour is going to affect the outcome of the divorce. Usually, the question is not worded generically but appears in one of the following forms:

My spouse is having an affair and I think he or she should pay more spousal support or provide me with more property. Can this happen? 

I am the one who saved money during the marriage and my spouse was constantly shopping, shouldn't that count for something? 

It is my spouse that wants the divorce so can I get spousal support from him or her?

Regardless of the form of the question, my answer is that we have no-fault divorces in Canada. This means that individuals are not punished for being an offending party nor rewarded for being the 'innocent' party.

The law very clearly states that fault is not taken into account on divorce.

However, a recent case from the Supreme Court of Canada makes me question whether the pendulum may at some point in time start swinging towards looking at fault.

The case I am referring to is called Leskum v.Leskum.

In this case the husband had been ordered to pay spousal support in an earlier legal proceeding and was applying to the Courts to discontinue the payments. The husband's application to end the payments was denied by the Courts and he appealed to the Supreme Court of Canada.

The parties married in 1978. During the marriage the wife worked and financially contributed to the husband's education and bore his child. After 20 years of marriage the wife injured her back and was unable to work. The Court found that the back injury was significant. The husband became the income earner for the family. In 1999 the parties divorced and the husband was to pay monthly support of $2,259.00 until the wife returned to full employment and then both the entitlement and the amount of support would be reviewed. In 2003 the husband applied to the Courts for the spousal support payments to be discontinued, as he was unemployed and in financial difficulty.   The wife had not yet returned to full time employment.

The court looked at the wife's age and health problems and her failure to obtain self-sufficiency and denied the husband's application. Most interestingly, the Appellate Court found that the Divorce Act did not prevent the consideration of a failure to achieve self-sufficiency as being the result, at least in part, of the emotional impact caused by the other spouse's misconduct. The husband appealed to the Supreme Court of Canada.

The Supreme Court of Canada confirmed that the Divorce Act eliminates misconduct as a relevant consideration for spousal support; however, the emotional consequences of misconduct were not rendered irrelevant just because their genesis is in the other spouse's misconduct.

It seems like a pretty fine distinction and it is interesting to consider whether fault will be indirectly considered in the future.

By Stacey M. Johnson
July 25, 2006