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SPOUSAL MISCONDUCT

On June 21, 2006 the Supreme Court of Canada handed down a decision, which has caused much discussion amongst family law practitioners across the country.

The case involved a 20-year marriage. The wife worked throughout the relationship, financially contributing to her husband's continuing education. The husband left his wife to pursue a relationship with another woman he had met. Shortly before the separation, the wife suffered a significant back injury, and learned that her job was being eliminated.

At trial the wife was awarded spousal support of $2,250.00 per month, until she "returned to full employment". Upon the wife becoming fully employed, both her entitlement and the amount of the award were to be reviewed by the court.

Approximately 3 years later, the husband applied to have his support obligation terminated because he was now unemployed, and in financial difficulty. The Chambers Judge ruled that the $2,250.00 monthly payments should continue, because the wife was not yet self-sufficient. The Court did not comment on the reasons for the wife's lack of self-sufficiency. The husband appealed to the Court of Appeal, who upheld the lower court decision. Although other factors were considered, the Court of Appeal also considered that the wife's failure to achieve self-sufficiency was due, at least in part, to the emotional devastation caused by the husband's misconduct.

The 1985 Divorce Act, sought to eliminate spousal misconduct as a relevant consideration, and specifically states in s.15.2(5) that the misconduct of a spouse is not to be considered when deciding whether spousal support should be awarded. In this case, the husband's appeal to the Supreme Court of Canada was based in part, on the consideration of his spousal misconduct in determining the wife's entitlement to support.

The Supreme Court dismissed the husbands appeal, distinguishing between the emotional consequences of the misconduct and the misconduct itself. The Court stated that the consequences should not become irrelevant merely because they relate to the spouses' misconduct. The consequences however, must be considered along with all the other factors or circumstances. In this case, the Court also had to consider the wife's injury, her age (60) and the likelihood of her successfully re-entering the workforce after a lengthy absence, and with few marketable skills.

Some lawyers have questioned whether this case will be the beginning of a return to fault-divorces. However, the Supreme Court assures us in their judgment, that awards of spousal support would not be based solely on the consequences of misconduct, but rather that numerous other factors would have to be present. I guess it remains to be seen whether the Supreme Court correctly assumed that most people would realize that "the only way out [of financial difficulty] is if they pull themselves up by their own bootstraps."

By Gina Toni
June 28, 2006