Chipping Away at “No-Fault” Divorce in Canada

The Supreme Court of Canada has ruled that, although misconduct like adultery is not relevant in a divorce case, the consequences of that misconduct may be. In Leskun v. Leskun, 2006 SCC 25 (Sup. Ct. Canada June 21, 2006), the husband had argued that alimony ordered by the trial court in 1999 should stop.

The 1985 Divorce Act eliminates misconduct as a relevant consideration when making an award for spousal support. Section 15.2(5) says the court “shall not take into consideration any misconduct of a spouse in relation to the marriage” in setting interim or final spousal support. And s. 17(6) precludes the court from considering in a variation application any conduct that couldn’t be considered in the initial order. The Supreme Court said that “these provisions 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 under s. 15.2(4) in making or varying a spousal support order.”

However, the Supreme Court said, there is a difference 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. Failure to achieve self‑sufficiency is not a breach of “a duty”. It is simply one factor amongst others to be taken into account when considering a spousal support order.

In this case, the Supreme Court held that the husband’s attempl to stop alimony failed because the wife was still not self-sufficient and remained in need of support. The husband had argued that he was unemployed and in financial difficulty, to the point that his economic prospects were not significantly better than those of the wife. The Chambers judge concluded, however, that the husband’s argument was “nonsense.” She pointed out that he had a significant earning capacity and assets of about $761,000 US.

s. 15.2(6) of the Canada Divorce Act sets out four goals for  alimony, saying spousal support orders should:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) 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;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Acknowledging this last goal, the Supreme Court rejected the husband’s argument that this rose to the level of a duty that “required” the wife to become self-sufficient. It stated simply that the wife had provided evidence at trial for her inability to earn income and that the Chambers judge believed it. The Supreme Court specifically noted that the wife had narrow work experience in a job that has since been eliminated and that she was now approaching age 60 with few marketable skills.