Case reference: Leskun v. Leskun, 2006 SCC 25 (CanLII), [2006] 1 SCR 920
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Family law — Divorce — Spousal support — Relevance of spousal misconduct — Husband’s affair having emotionally devastating effect on wife — Wife unable to attain self sufficiency — Whether Court of Appeal erred in taking into account spousal misconduct in determining entitlement to support — Whether husband’s capital assets acquired after marital break up to be considered in determining his ability to pay spousal support — Whether objective of promoting self sufficiency constituting duty — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2.
The parties were married in 1978. After 20 years of marriage, during which the wife worked, financially contributed to her husband’s continuing education, and bore his child, she was in short order afflicted with a significant back injury and the elimination of her job. Soon after, her husband told her that he wanted a divorce to marry another woman. The parties divorced in 1999. At trial, the wife was found to be entitled to support and was granted $2,250 per month “until Sherry Leskun returns to full employment, when both entitlement and quantum will be reviewed”. In 2003, an application by the husband to discontinue support payments on the basis that he was now unemployed and in financial difficulty was denied. The chambers judge found that the wife was not self sufficient and remained in need of spousal support. The Court of Appeal affirmed the ruling. A majority of the court indicated that the Divorce Act did not prevent consideration of a failure to achieve self sufficiency as being the result, at least in part, of the emotional devastation caused by the other spouse’s misconduct. There were also a number of other factors unrelated to misconduct, including the wife’s age at the time of the marriage break up and her health problems, which led the court unanimously to uphold the support order.
Held: The appeal should be dismissed.
The 1985 Divorce Act eliminates misconduct, as such, as a relevant consideration when making an award for spousal support. Section 15.2(5) provides that in making an interim or final order for spousal support, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”. In addition, s. 17(6) instructs the court not to consider in a variation application any conduct that could not be considered in the making of the initial order. 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. 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. 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.
Here, the majority of the Court of Appeal wrongly suggested that a court can achieve indirectly what Parliament has said the court is not to do directly. While the needs and circumstances of the claimant spouse are relevant to a failure to achieve the objective of self sufficiency, it is the attribution of fault to the other spouse that is deemed by Parliament to be irrelevant to the issue of spousal support in a regime designed to deal with the consequences of marital breakdowns on a no fault basis. However, the Court of Appeal’s decision dismissing the husband’s application for a reduction in support payments should be affirmed on the basis of the other factors unrelated to misconduct. In addition, the narrowness of the wife’s work experience, which was mentioned by the chambers judge in her ruling, underlines how difficult it is for someone now approaching 60 years of age to re enter the labour force after a lengthy absence and with few marketable skills outside the limits of her former job at a bank.
In determining the husband’s ability to pay spousal support, the chambers judge did not err in taking into account his capital assets acquired after the marital break up. The issue of “double dipping” did not arise because the capital assets at issue did not exist at the time of the division of capital at the initial trial. To say that capital assets cannot be considered would not reflect the true “means, needs and other circumstances” of the parties as required by s. 15.2(4) of the Divorce Act.
Insofar as possible, trial courts should resolve the controversies before them and make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances. If the s. 15.2 court considers it essential (as here) to identify an issue for future review, the issue should be tightly delimited in the s. 15.2 order. In this case, the husband’s application is properly characterized as a review application, not an application to vary, and it was not necessary for him to demonstrate a change in circumstances. However, whether his application is treated as having been brought under s. 15.2 of the Divorce Act (which would be more favourable to the husband) or under s. 17 makes no difference to the outcome in the case. His application does not rise or fall on the issue of onus. It fails on the facts.
*source: Canlii
