Leskun v. Leskun, (2006) 349 N.R. 158 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 21, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 349 N.R. 158 (SCC);2006 SCC 25;62 BCLR (4th) 197;[2006] SCJ No 25 (QL);268 DLR (4th) 577;373 WAC 1;EYB 2006-106795;[2006] 1 SCR 920;226 BCAC 1;34 RFL (6th) 1;JE 2006-1279;349 NR 158

Leskun v. Leskun (2006), 349 N.R. 158 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] N.R. TBEd. JN.028

Gary Leskun (appellant) v. Sherry Jean Leskun (respondent)

(30548; 2006 SCC 25; 2006 CSC 25)

Indexed As: Leskun v. Leskun

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish and Charron, JJ.

June 21, 2006.

Summary:

Spouses married in 1978, separated in 1998 and divorced in 1999. The wife worked in a bank throughout the marriage, financing the husband's higher education through her earnings and the cashing in of her RRSP's and her pension contributions. The husband left the wife upon being transferred to Chica­go and married the woman he had been com­mitting adultery with. The wife had in­jured her back in 1995. Her position at the bank was terminated and her disability bene­fits terminated in 1999. The wife lived solely on interim spousal support of $2,250 per month. The wife remained unem­ployed, part­ly because she was emo­tionally devas­tated by her husband's leaving her and partly because of her age, narrow employment his­tory and medical concerns. A trial court awarded the wife spousal sup­port of $2,250 per month subject to review as to entitlement and quantum. The wife had been disadvan­taged by the marriage and her ability to become self-sufficient was in doubt. The husband applied to discontinue support on the basis that he was unem­ployed and in fi­nancial difficulty.

The British Columbia Supreme Court, in a judgment reported [2000] B.C.T.C. Uned. 662, dismissed the application. The husband was not forthright in his financial disclosure. He had significant earning capacity and capital of approximately $1 million Cana­dian. The wife was not yet self-sufficient and remained in need of support. The court ordered that spousal support of $2,250 per month continue. The husband appealed.

The British Columbia Court of Appeal, in a judgment reported [2004] B.C.A.C. Uned. 145, dismissed the appeal. The judge did not err in finding that the wife was not yet self-sufficient and that the husband had the abil­ity to pay, including using capital assets to pay support. Southin, J.A. (Hall, J.A., con­curring), stated that the Divorce Act did not prevent the court from considering that the failure to achieve self-sufficiency resulted "at least in part from the emotional devastation of misconduct by the other spouse". New­bury, J.A., disagreeing on this point, held that spousal misconduct was irrelevant when considering the issue of support. The hus­band appealed, submitting that (1) spousal misconduct should not have been considered in determining entitlement to spousal sup­port; (2) meaningful effect was not given to the wife's obligation to become self-suffic­ient; (3) the husband's capital should not have been considered in deter­mining his abil­ity to pay; and (4) the appli­cation for a review of support (Divorce Act, s. 15.2) was improperly dealt with as a variation applica­tion (s. 17), improperly placing an onus on the husband to establish changed circum­stances.

The Supreme Court of Canada dismissed the appeal. Although the needs and circum­stances of a spouse were relevant to a failure to achieve self-sufficiency, the attribution of fault to the other spouse was irrelevant. Al­though spousal mis­con­duct was irrelevant, the consequences of spousal misconduct were not. Notwith­stand­ing the error, there was no error in affirming the need for sup­port based on the relevant factors, including the wife's age, narrow job experience and her health concerns. The husband's capital assets were properly considered in determin­ing his financial ability to pay ongoing sup­port. Whether the hus­band's application was treated as a review or a vari­ation appli­ca­tion, it made no difference, as his applica­tion failed on the facts, not on the issue of onus.

Family Law - Topic 3997

Divorce - Corollary relief - General - Eco­nomic self-sufficiency - Section 15.2(5) of the Divorce Act provided that in making an order for spousal support "the court shall not take into consideration any mis­con­duct of a spouse in relation to the mar­riage" - The Supreme Court of Canada held that the attribution of fault between spouses was irrelevant to the issue of spousal support - However, there was a dis­tinction between the emotional conse­quences of a spouse's misconduct and the misconduct itself - Section 15.2(4) pro­vided that the court was to consider "the condition, means, needs and other circum­stances of each spouse" - The court stated that "certainly, the 'condition ... needs and other circumstances' includes the capacity of the respondent to be self-sufficient for whatever reason" - If, for example, a spouse suffered depression so serious as to render her unemployable as a result of spousal misconduct, the consequences of the spousal misconduct were rel­evant to the factors to be considered in determining the right to support, its dur­ation and quan­tum - See paragraphs 16 to 24.

Family Law - Topic 3997

Divorce - Corollary relief - General - Eco­nomic self-sufficiency - Section 15.2(6)(d) of the Divorce Act provided that one of the objectives of spousal support was to "in so far as practicable, promote the eco­nomic self-sufficiency of each spouse with­in a reasonable time" - The Supreme Court of Canada held that the objective was not a duty, stating that "fail­ure to achieve self-sufficiency is not breach of 'a duty' and is simply one factor amongst others to be taken into account" - See paragraphs 25 to 27.

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. vari­ation of maintenance - A husband applied for a review of his spousal support obliga­tion, as permitted by the court order for support - The husband submitted that both the trial court and appeal court erred in treating his application as a variation appli­cation (Divorce Act, s. 17) rather than a review (s. 15.2), improperly placing an onus on him to establish changed circum­stances - The Supreme Court of Canada dis­­tinguished between a variation and a re­view - The court stated that "review or­ders, where justified by genuine and mater­ial uncer­tainty at the time of the original trial, permit parties to bring a motion to alter support awards without having to demon­strate a material change in circum­stances. ... In my view, whether the appli­cation is treated as brought under s. 15.2 (more favourable to the [husband]) or un­der s. 17 (less favourable) it makes no dif­ference to the outcome. His application does not rise or fall on the issue of onus. It fails on the facts." - See paragraphs 35 to 42.

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance awards - Considerations - General - [See first Family Law - Topic 3997 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calcula­tion of income) - The Supreme Court of Can­ada rejected the submission that a spouse's capital assets should not be con­sidered in determining the ability to pay spousal support - The traditional under­stand­ing of "means" included all pecuniary resources, including capital assets "that have not been part of the equalization or division of matrimonial assets when the payee spouse's continuing need for support is shown" - See paragraphs 29 to 34.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation -[See first Family Law - Topic 3997 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation -Spouses married in 1978, separated in 1998 and divorced in 1999 - The wife worked in a bank throughout the marriage, financing the husband's higher education through her earnings and the cashing in of her RRSP's and her pension contributions -The husband left the wife upon being trans­ferred to Chicago and married the woman he had committed adultery with - The wife injured her back in 1995 - Her position at the bank was terminated and her disability benefits ended in 1999 - Her only income was spousal support of $2,250 per month - The wife remained unem­ployed, partly because she was emo­tionally devastated by her husband's leav­ing her and partly because of her age, narrow employment history and medical concerns - The trial court dismissed the husband's review application - The hus­band was not forthright in his financial disclosure - He had significant earning capacity and capital of approximately $1 million Canadian - The wife was not yet self-sufficient and re­mained in need of support - The Supreme Court of Canada affirmed the appeal court's dismissal of the husband's appeal - Notwithstanding the Court of Appeal's er­ror in stating that the husband's miscon­duct was relevant to the wife's self-suffic­iency, there was no error in affirming the need for support based on the relevant fac­tors, including the wife's need based on her age, narrow job experi­ence and her health concerns.

Family Law - Topic 4028

Divorce - Corollary relief - Maintenance awards - Effect of net worth - [See Family Law - Topic 4021.4 ].

Cases Noticed:

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 26].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 26].

Strang v. Strang, [1992] 2 S.C.R. 112; 137 N.R. 203; 125 A.R. 331; 14 W.A.C. 331, refd to. [para. 29].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 30].

Cunha v. Cunha (1994), 99 B.C.L.R.(2d) 93 (S.C.), refd to. [para. 34].

Choquette v. Choquette, [1998] O.A.C. Uned. 330; 39 R.F.L.(4th) 384 (C.A.), refd to. [para. 37].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 37].

Schmidt v. Schmidt (1999), 132 B.C.A.C. 36; 215 W.A.C. 36; 71 B.C.L.R.(3d) 113 (C.A.), refd to. [para. 38].

Keller v. Black, [2000] O.T.C. 845 (Sup. Ct.), refd to. [para. 39].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15.2(4) [para. 22]; sect. 15.2(6) [para. 18]; sect. 17(4.1) [para. 35].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (2001), p. 195 [para. 29].

Counsel:

Lorne N. MacLean, Alison M. Ouellet, Shawna L. Specht and Shelagh M. Kin­ney, for the appellant;

Sherry Jean Leskun, on her own behalf;

Colin A. Millar, amicus curiae.

Solicitors of Record:

MacLean Family Law Group, Vancouver, B.C., for the appellant;

Richards Buell Sutton, Vancouver, B.C., appointed by the court as amicus curiae.

This appeal was heard on Februrary 15, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish and Char­ron, JJ., of the Supreme Court of Canada.

On June 21, 2006, Binnie, J., delivered the following judgment in both official lan­guages for the Court.