F. Spousal Conduct

Author:Julien D. Payne - Marilyn A. Payne

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Section 15.2(5) of the Divorce Act provides that "the court shall not take into consideration any misconduct of a spouse in relation to the marriage" when considering an application for spousal support. Pursuant to section 17(6) of the Divorce Act, the same criterion applies to an application to vary an existing order. In addressing the impact of the husband’s conduct on the wife’s state of mind and her inability to strive for economic self-sufficiency, the Supreme Court of Canada in Leskun v Leskun234draws a distinction between misconduct, as such, which is irrelevant to the determination of spousal support, and the impact of such misconduct on a spouse’s economic status, which is a relevant consideration under sections 15.2(4), 15.2(6), 17(4), and 17(7) of the Divorce Act. While courts have long since abandoned the notion that spousal

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support orders are intended to punish the guilty and reward the innocent,235 sections 15.2(5) and 17(6) of the Divorce Act do not preclude the court from taking account of the economic implications of spousal misconduct. Thus, the commission of a matrimonial offence, such as adultery236or cruelty or other misconduct that may have caused or contributed to the breakdown of the marriage, is per se irrelevant to the determination of spousal support under the Divorce Act. However, the economic implications of such conduct may be relevant in determining spousal support.237For example, the financial aspects of a spouse’s "common-law relationship" may be taken into account in determining spousal support rights and obligations. Or, to use the example presented by the Supreme Court of Canada in Leskun v Leskun,

[i]f . . . spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the 1985 Act however, is to focus on the consequences of spousal misconduct not the attribution of fault.238Similarly, if spousal misconduct has caused a financial loss or assets have been depleted, these consequences of the misconduct may be relevant to the determination of spousal support.239The concealment of assets or the failure to make appropriate disclosure may also constitute relevant conduct.240

Spouses may enhance, diminish, or negate their mutual support rights and obligations by their conduct. However, economic misconduct is only one consideration, and the nature and extent of any harm done will dictate its significance to the mandatory judicial review of all the factors and objectives to be considered on an application for spousal support pursuant to sections 15.2(4) and 15.2(6) of the Divorce Act.241In applying these criteria in Sibbet v

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Sibbet,242Little J, of the Manitoba Court of Queen’s Bench, held that a wife who was suffering from ill-health should be denied a spousal support order where her deliberate misconduct in bringing the family business to an end placed ongoing burdens on her husband whom she had forced out of the business when it was a going concern. In addition, a spouse cannot sit idly by and expect to collect support. Each spouse must strive to attain financial self-sufficiency, if it is practicable to do so.243A husband’s cruel or abusive conduct, which impairs his divorced wife’s ability to secure economic self-sufficiency through employment, may trigger a spousal support order, although the diminishing effect of the husband’s misconduct on her earning capacity over a period of time may subsequently justify variation or termination of the order.244Retroactive orders for spousal support and child support are not precluded by the...

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