MY SPOUSE COMMITTED ADULTERY- DOES IT MEAN I GET MORE OR LESS SPOUSAL SUPPORT AND DOES IT CHANGE MY PROPERTY DIVISION CLAIM?
As a top Vancouver spousal support lawyer and lawyer for the husband in the infamous adultery and spousal support case of Leskun heard by Canada’s highest court, I get asked this question a lot.
Canadians are governed by a no fault system for divorce that does not focus on punishing someone who had an affair. Trying to determine who caused a marriage to breakdown is an expensive waste of time for the parties who need to focus on moving on with their lives.
However, in rare circumstances, adultery can be relevant to a claim for spousal support and family property division.
We argued an adultery and spousal support case that went all the way to Canada’s highest court. The Supreme Court of Canada decided that a wife who claimed she was unable to work some 5 years after the parties separated because of our client’s affair was entitled to continued support because of the emotional devastation she suffered as a result of our client’s adultery, her advanced age and her narrowed work opportunities.
The 1985 Divorce Act eliminates misconduct, as such, as a relevant consideration when making an award for spousal support. The court however went on to hold that “misconduct should not creep back into the court’s deliberation as a relevant “condition” or “other circumstance” which the court is to consider under s. 15.2(4) in making or varying a spousal support order. There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. Those consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. On the contrary, they can be highly relevant to factors, such as a claimant spouse’s capacity to be self‑sufficient, which must be considered when making a spousal support order. The court went on to hold medical evidence supporting an inability to work was preferable.
An Ontario court recently rejected the concept that an affair would void a marriage agreement even one happening at the time the agreement was being negotiated and signed.
At Paragraph 80 the court held: In recognition of the fact that marriages are complicated institutions, whose failure can rarely be attributed to one party or the other, the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement. In essence, Mr. Schrage is seeking to reintroduce conduct into the consideration of whether a marriage contract should be set aside. This is a road the law has been down before and, based on that experience, it is a road to be avoided unless justice demands it.
Remember-the winners in divorce are those who can move on to satisfying post separation life free of bitterness and recrimination.
Request a consultation if you are in a spousal support situation and need help.
