Top court muddies divorce law
by Martha Shaffer
This commentary was first published in the Toronto Star on June 27, 2006.
Last week, the Supreme Court of Canada ruled that a woman was entitled to receive spousal support from her former husband after the breakdown of their 20-year marriage.
On its face, Leskun vs Leskun is a completely unremarkable judgment; it is commonplace to order lengthy spousal support after the breakdown of a long-term marriage. Except that Leskun made an argument that unleashed a legal furor: She contended that she remained unable to work some eight years after the marriage because of depression caused by her ex-husband's adultery.
Why did Leskun's argument provoke such a maelstrom? In the minds of some, Leskun was essentially arguing that Mr. Leskun should have to pay because he had been, in his counsel's words, "carrying on" behind her back for some time.
This argument seemingly has no place in Canada's "no-fault" divorce regime, but instead harkens back to the bad old days of matrimonial fault. In the bad old days, divorce law was all about fault. People could not get a divorce unless one of them had committed a "matrimonial offence," usually adultery.
If the husband was the "guilty" party, he was expected to continue to support his ex-wife. If the wife was at fault, she forfeited her right to spousal support. At a time when most women were not working, losing the right to spousal support was a significant hardship.
We have come a long way since those bad old days. Since 1985, Canada has had a no-fault divorce regime in which couples can obtain a divorce on the basis of marriage breakdown. Under the new no-fault regime, conduct or fault is not relevant to spousal support. In fact, s.15.2(5) of the Divorce Act specifically states that when making a spousal support order, courts "shall not take into consideration any misconduct of a spouse in relation to the marriage."
Does Leskun return us to the bad old days of matrimonial fault? Is Mr. Leskun being ordered to pay support because he committed adultery? The answer to both questions is no.
Under the Divorce Act, spousal support is awarded to compensate a spouse for economic contributions and sacrifices made to the marriage, and for economic hardship endured as a result of the marriage breakdown. As a general rule, the longer the marriage, the greater the amount of spousal support awarded because of the greater contributions and sacrifices that will have been made over the years. In ordering support, courts also consider the financial means of the spouse paying support and the ability of the spouse receiving support to attain economic self-sufficiency.
All of these factors pointed in the direction of ordering long-term spousal support for . Leskun. She was in a precarious financial position at the time of the divorce. One month before the end of the 20-year marriage, she lost her job. Her employment propects were not bright.
She was in her early 50s, suffered from chronic medical problems, lacked formal education and had little work experience. Mr. Leskun, in contrast, emerged from the marriage in a strengthened economic position, having obtained an MBA during the marriage that significantly increased his earning capacity.
At the time of the divorce, he was earning more $200,000 a year. His wife helped to put him through business school by cashing in her RRSPs and her pension and by interrupting her career. On these facts, it is not surprising that Mr. Leskun was ordered to pay spousal support. If anything, it is surprising that he was ordered to pay only $2,250 per month ($27,000 per year) given his far greater earning ability and the length of the marriage.
Why then all the fuss? To the extent that there is any "fault" at play in Leskun, the fault resides with the Supreme Court of Canada. The court could have carefully analyzed Leskun's situation to show how she was entitled to ongoing spousal support irrespective of Mr. Leskun's affair. Unfortunately, it did not. The result is a judgment that may be prone to misinterpretation.
