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Spousal Misconduct and Spousal Support

Spousal misconduct and spousal support or alimony is a topic that generates thousands of questions from family law clients and the public each year and may in fact be the most asked about family law topics when spouses separate. MacLean Law has 8 offices across Canada located across BC, in Calgary, Winnipeg, and in downtown Toronto. In most cases, spousal misconduct will not be considered because Canada has a “no-fault” divorce regime. But in some cases, it will matter.

Spousal Misconduct and Spousal Support 1 877 602 9900

A recent case of He v Guo points out that some types of spousal misconduct will be reviewed by a court in deciding whether spousal support should be awarded and in deciding how much and how long it will be paid. The court found his behaviour also amounted to family violence.

In that case, a husband was denied spousal support because of his intimidation tactics:

[36]         The claimant’s categorization of the parties’ relationship as conjugal without family obligations to either the respondent or her son and his reporting of the relationship to our immigration authorities in a manner designed to harass and harm the respondent are two further reasons to dismiss the claimant’s claim for spousal support on a “needs” basis. The respondent testified as to the adverse psychological and emotional impact that the claimant’s conduct had upon her. I find that the abuse hindered the respondent’s attainment of economic self-sufficiency.

How Does It Work?

As we have previously written, spousal support can be a tough subject in family law disputes. Recipients of spousal support may feel they are not receiving enough; payors of spousal support may feel they are paying too much. But the issue of spousal support can be even more difficult if there has been bad behaviour by a spouse during the relationship. This “misconduct” can take different forms, from adultery to physical and mental abuse, but can have devastating effects on a spouse in whatever form it takes. And what are the consequences of this misconduct and its impact on spousal misconduct and spousal support disputes if the offended spouse brings a claim for financial support against the offending spouse?

Section 15.2(5) of the federal Divorce Act (passed in its current form in 1985) provides that in determining spousal support:

“the court shall not take into consideration any misconduct of a spouse in relation to the marriage.”

By contrast, Section 166 of the British Columbia Family Law Act (passed in 2011) provides:

“In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably

(a) causes, prolongs or aggravates the need for spousal support, or

(b) affects the ability to provide spousal support.”

So how did the law go from not considering any spousal misbehaviour in spousal support (in 1985) to now considering it if the misconduct affects the need for (or ability to pay) spousal support? The answer lies in a  highly controversial 2006 case of the Supreme Court of Canada called Leskun.

Leskun and MacLean Law in The Supreme Court of Canada

In Leskun v Leskun 2006 SCC 25, the spousal misconduct alleged was adultery – the wife claimed she was so traumatized by the husband’s adultery that she was unable to function and move on with her life, and therefore not able to become economically self-sufficient [an important objective in the granting of a spousal support order under s. 15.2(6) of the Divorce Act]. The lower Courts found the wife was “so consumed by bitterness over the end of her marriage and what she sees as the betrayal and duplicity of her former husband” that she was unable to be economically self-sufficient, citing the wife’s age, health, work experience and emotional consequences (ie. family and medical difficulties) of the husband’s misconduct in finding she was still in need of spousal support.

On appeal, the Supreme Court of Canada held that while spousal misconduct is not itself to be considered a factor in determining whether spousal support should be granted or not [under s. 15.2(5) of the Divorce Act], the consequences of that spousal misconduct may be relevant in so far as they affect the offended spouse’s ability to achieve self-sufficiency (ie. earn an income), stating (at para.’s 20 – 21):

[Sections 15.2(5) and 17(6) of the Divorce Act] make it clear that misconduct should not creep back into the court’s deliberation as a relevant “condition” or “other circumstance” which the court is to consider in making or varying a spousal support order (s.15.2(4)).  Misconduct, as such, is off the table as a relevant consideration.

There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself.  The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct.  If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount.  The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.

Although not universally agreed with at the time (many claiming it eroded the “no-fault” concept of divorce in Canada and would increase divorce claims on the grounds of spousal misconduct), the Supreme Court of Canada decision in Leskun continues to be supported in recent cases (see: N.R.I.H. v. M.G.S.H., 2015 ONSC 3277; Bruce v. Vaughan, 2016 BCSC 2258, etc.). Spousal misconduct and spousal support

Although controversial, Leskun (argued before the BC Court of Appeal and the Supreme Court of Canada by MacLean Law Founder Lorne MacLean Q.C.) remains one of the primary cases on spousal support and when such support can be reviewed. MacLean acted for the husband and the quantum of support was well below the low end of the SSAG quantum.

Spousal Misconduct and Spousal Support – Call Now

Spousal support can be a heated and complex issue, even without the Courts making a determination that (on plain reading) seemingly contravenes the legislation. But it is clear that “spousal misconduct”, whether adultery or mental or physical abuse, can have serious and practical effects on a wide range of legal issues upon relationship breakdown: parenting of children; financial support; exclusive possession of the family home; EPOs and mutual no-contact orders, etc.  When the two issues of spousal support and spousal misconduct combine, the result can be unpredictable.