Divorce ruling is far from faulty

by Carol Rogerson 

This commentary was first published in The Globe and Mail on June 26, 2006.

Globe and Mail readers awoke Thursday morning to the headline: Divorce Ruling Threatens To Open Floodgates. The editorial page had even more frightening news. The lead editorial, The Supreme Court's Faulty Divorce Ruling, asserted the court's decision in Leskun v. Leskun had overturned a generation of no-fault divorce and brought back the bad old days of fault.

My reaction to the Leskun decision, like that of many experienced family law practitioners, was very different: The court's decision, upholding a lower court ruling requiring Gary Leskun to continue paying spousal support of $2,250 per month to his former wife, Sherry, at a point four years after the breakdown of their 20-year marriage, was completely unsurprising and consistent with current law.

Leskun has quickly come to be seen as a case in which an embittered wife, who was fully capable of becoming "self-sufficient," was allowed to claim spousal support for no other reason than to punish her unfaithful husband. This, despite the fact the court explicitly ruled that spousal fault or misconduct is not a basis for awarding spousal support. Rather, the court insisted spousal support is about economic factors -- the economic impact of the marriage and its breakdown, the needs and means of the spouses and their earning capacities.

The court did qualify its rejection of fault as a basis for spousal support with the ruling, again reflecting current law, that the consequences of spousal misconduct can be taken into account in assessing a spouse's ability to find or retain employment and pursue self-sufficiency. Few would quibble with a judge taking into account the traumatic effects of spousal abuse in determining a spouse's prospects for employability. And courts routinely take into account the emotional devastation of a marriage breakdown as a factor in setting realistic expectations for a spouse to pursue some degree of self-sufficiency. The court saw Leskun as such a case.

Many others, however, fear that leaves broad scope for unreasonable applications and they use the facts of Leskun as their prime example. Well, let's look at the facts.

The Leskuns were married for 20 years -- by any count a long marriage. The marriage breakdown came at a particularly difficult time for Ms. Leskun. Already in her early fifties, she was suffering from a chronic back injury and had just been informed her $45,000 a year job at the bank, where she had been employed for 30 years, was being eliminated due to restructuring.

At the time of the divorce in 1999, Ms. Leskun had a strong claim for support. Not only was there her obvious "need" and Mr. Leskun's ability to pay (he was, at that time, earning approximately $200,000 a year), but she also had a claim on "compensatory" grounds, having helped Mr. Leskun obtain his MBA during the marriage by cashing in her RRSPs and employment pension. The spousal support of $2,250 a month she was awarded at the time was arguably very low -- typically, after a long marriage, spouses should be left with roughly equivalent standards of living. The modest amount suggests there was a strong emphasis, even in the original order, on encouraging Ms. Leskun to pursue self-sufficiency.

Ms. Leskun does have an obligation under the law to make reasonable efforts to contribute to her own support, despite the emotional trauma of her divorce. If she does not, the law has a solution -- to impute an income to her on the basis of what she could reasonably be expected to earn. The difficult question in the case is when that time will come. The judge who heard Mr. Leskun's application to reduce or terminate Ms. Leskun's support four years after the divorce found the time had not yet come. The Court of Appeal and the Supreme Court of Canada have both suggested that Ms. Leskun now appears to be in a position to take on at least part-time work.

We should be clear, however, about what might happen if Ms. Leskun continues to remain unemployed. Even if income were imputed to Ms. Leskun, it would most likely be in the range of $15,000 to $20,000 per year, given her age, health, and skills. At that income level, she would likely still be entitled to some ongoing spousal support to bring her standard of living closer to his.

Leskun is not a perfect decision. More guidance could have been provided about reasonable expectations for Ms. Leskun's return to employment. But Leskun will not lead to a "legal tsunami" of illegitimate applications for spousal support based solely on the emotional devastation of adultery. Some lawyers will, of course, try to argue it. In most cases, they will lose because the facts will simply not support a claim for spousal support.