July 1, 2009

Consequences Not Misconduct Still The Focus by Ian M. Solloway

Leskun vs. Leskun Re-Visited

On June 21, 2006, the Supreme Court of Canada handed down a decision, which, at the time, raised certain eyebrows and provoked some concern in family law circles.

Sherry Leskun and Garry Leskun were married in 1978. During their 20-year marriage, Ms. Leskun financially contributed to Mr. Leskun’s continuing education by cashing in her R.R.S.P.’s and supporting her husband while he pursued an M.B.A. and became a Certified General Accountant. The couple had a daughter together.

During the 1990’s, Sherry Leskun suffered a significant back injury and the elimination of her job. Shortly thereafter, Mr. Leskun announced that he was leaving her and wanted a divorce in order to marry another woman and move to Chicago. The parties divorced in 1999.

At trial, Sherry Leskun was awarded one-half of the family assets as well as spousal support of $2,500.00 per month to be paid “until (she) returned to full employment, when both entitlement and quantum would be reviewed.”

In 2003, Mr. Leskun asked the Court to review his ex-wife’s support payments, claiming that in the four years that had elapsed between the marital break-up and the review application, Ms. Leskun had made no effort to seek employment and therefore attain her own economic self-sufficiency, one of the objectives of a spousal support order under the Divorce Act.

In upholding the spousal support order, the British Columbia trial court found that the adulterous conduct of Mr. Leskun during the marriage had left Ms. Leskun so consumed by bitterness over what she saw as her husband’s betrayal and duplicity, that she was unable to return to work despite her many years of experience in the banking industry. The British Columbia Court of Appeal agreed with the trial judge.

The issue on appeal before the Supreme Court of Canada was whether the lower courts erred in taking into account spousal misconduct in determining entitlement to spousal support. In dismissing Mr. Leskun’s appeal, Mr. Justice Binnie, writing for a unanimous Supreme Court, took pains to distinguish the economic consequences of spousal misconduct from the misconduct itself. The Supreme Court held that while the 1985 Divorce Act specifically eliminated spousal misconduct as a relevant consideration in making spousal support orders, it did not eliminate the consideration of the consequences of such misconduct, here, the emotional trauma suffered by the jilted spouse rendering her unable to return to work. Mr. Justice Binnie seemed to foreshadow the debate which the Leskun decision provoked when he admonished: “Misconduct should not creep back into the Court’s deliberation as a relevant “condition” or other circumstance which the Court is to consider in making or varying a spousal support order; misconduct, as such, is off the table as a relevant consideration.”

However, is spousal misconduct still really “off the table” or did the Supreme Court open the flood-gates in Leskun to new spousal support applications based on the pre-1985 days when the Court was specifically directed by the former Divorce Act to consider “spousal fault” in making support awards?

Although the Leskun decision may have framed the question a little differently than in the past by focusing on the “consequences” of certain behaviours, it has not really altered the legal landscape. The physical, psychological and/or emotional condition of the claimant spouse at the time of the original spousal support application or at the time of the application to vary that support, rendering her/him unemployable and thus unable to become financially autonomous, has always been a relevant factor in the Court’s determination of spousal support, its duration and its amount. If, for instance, spousal abuse during the marriage triggered a depression and/or physical condition so serious as to make a claimant unable to work, the Court would be obliged to take such spousal misconduct into account in its deliberations.

It may be true that following Leskun our courts may now allow more evidence to be led as to the genesis of the claimant’s condition or circumstance. However, it is still the condition or circumstance itself or a change in that condition or circumstance, having regard to such non-exhaustive factors as the length of the marriage, health problems, age, the narrowness of the claimant’s work experience, marketable skills, and the economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, which have remained the focus of the Court in determining entitlement or continued entitlement to spousal support.

It is submitted that the cries of those who viewed the Leskun decision as re-introducing “fault” pure and simple through the back door in spousal support litigation was a misreading of the Supreme Court’s judgment. Moreover, the predictions of a “legal tsunami” of new spousal support review or variation applications in the wake of Leskun have proven to be, at the very least, premature, if not unduly alarmist.