Supreme Court to rule on divorce law

[RB]

Gary Leskun walked out on his wife of 20 years who had borne him a child and contributed substantially to his financial well-being

He attempted to halt spousal support because his ex-wife did not try hard enough to self support herself and become self sufficient

"The Supreme Court of Canada will rule today whether a man who was found to be "carrying on behind his wife's back" must continue spousal support payments"

[MightyAC]

I've heard that she is claiming that she is too bitter to work...is that true? If it is I think she could have come up with a much better strategy.

[August1991]

The existence of no-fault divorce does not mean the devastating consequences of a spouse's misconduct cannot be a factor when setting spousal support, says the Supreme Court of Canada.

"The consequences are not rendered irrelevant because of their genesis in the other spouse's misconduct," Justice Ian Binnie wrote for the unanimous court, in ruling a man must continue spousal support payments to his ex-wife..

But he stressed that does not mean Canada will return to the days when misconduct was a direct factor to consider.

Link

Decisions of this sort will have for effect to reduce the number of marriages and reduce the number of childbirths.

[Charles Anthony]

Is it just me or does this seem confusing? I have stared at the double negatives for a long time and it seems to say misconduct can be a factor but it can not be a DIRECT factor????????????

Am I missing something????

Decisions of this sort will have for effect to reduce the number of marriages and reduce the number of childbirths.

Unfortunately, I think you may be correct. At the very least, it will give more work for the legal profession!!!!!!!!! Funny how things work that way.

[Riverwind]

Is it just me or does this seem confusing? I have stared at the double negatives for a long time and it seems to say misconduct can be a factor but it can not be a DIRECT factor???????????? Am I missing something????

Let say a man cheated and caught HIV which he then transmitted to his spouse. His wife would now have a permanent injury as a result of his misconduct (assume the man did not know he had HIV so there is no criminal assault issue). Before this ruling, the husband could have argued that his wife's HIV status cannot be a factor in calculating support since her HIV status is a result of his misconduct. This decision says that permanent consequences of misbehavior can be used as a factor. The decision implies that misbehavior that does not cause permanent disability still cannot be used as a factor.

What makes this ruling troublesome is the court accepted the wife's self-imposed 'bitterness' as a permanent disability. I think this aspect of the decision is crime even though I can understand the rational for the hypothetical HIV case I presented above.

[Charles Anthony]

Let me put it in a simpler way:

What is the difference between a "factor" and a "direct factor" in legalese?

I do not see where the "permanence" comes into play from the article.

[Riverwind]

What is the difference between a "factor" and a "direct factor" in legalese?

I do not see where the "permanence" comes into play from the article.

It does not - i used the example of a permenant injury to better illustrate why the court wanted to revisit the issue.

My take on the double negatives: the court upheld the principle that bad behavoir is not a factor when calculating support. In other words, support cannot be used as mechanism to punish a misbehaving spouse. However, the court said that consequences of misbehavoir can be used if those consequences affect the spouses ability to earn a living.

What makes this case confusing is the court's willingness to accept that the woman could not work because of her bitterness over his infidelity. That judgement is appalling and basically encourages ex-wives to fabricate mental illnesses in order to get more support.

[FTA Lawyer]

What is the difference between a "factor" and a "direct factor" in legalese?

I do not see where the "permanence" comes into play from the article.

It does not - i used the example of a permenant injury to better illustrate why the court wanted to revisit the issue.

My take on the double negatives: the court upheld the principle that bad behavoir is not a factor when calculating support. In other words, support cannot be used as mechanism to punish a misbehaving spouse. However, the court said that consequences of misbehavoir can be used if those consequences affect the spouses ability to earn a living.

What makes this case confusing is the court's willingness to accept that the woman could not work because of her bitterness over his infidelity. That judgement is appalling and basically encourages ex-wives to fabricate mental illnesses in order to get more support.

In my view, it is always advisable to read the actual judgment rather than some journalist's interpretation. Everyone can get easy access to SCC judgments at this site:

SCC Judgments

Riverwind has it basically correct. The SCC confirms unequivocally that a spouse's misconduct cannot be considered as a relevant factor in determining the issue of spousal support. Where they draw the distinction is that it has always been relevant to consider the means, needs and other circumstances of the spouses in deciding spousal support, so, if a spouse is unable to become self-supporting for reasons which happen to be the result of misconduct, you shouldn't ignore those reasons.

As clarified by Riverwind, it doesn't matter if the factor is a permanent or temporary one.

I suggest that if quotes from the judgment were left in the broader context by the reporters, that the actual reasoning of the SCC would be both easier to understand and to swallow:

21 There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, 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 the spousal misconduct not the attribution of fault.

22 Section 15.2(4) states that in making a spousal support order the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

( the functions performed by each spouse during cohabitation; and

© any order, agreement or arrangement relating to support of either spouse.

Certainly, the “condition ... needs and other circumstances” includes the capacity of the respondent to be self-sufficient for whatever reason. Whether or not the claimed inability or incapacity of the claimant spouse is credible is for the trial judge to determine. It is not helpful to cast about to assign blame.

23 A break-up in the circumstances found here will perhaps inevitably precipitate a period of shock and emotional trauma for the jilted spouse, but Parliament has concluded that the attempt to get to the bottom of all the rights and wrongs that contributed to the break-up is likely impossible and in any event irrelevant to the task of sorting out the financial consequences. As to the “legal tsunami”, I agree with the amicus curiae that for the most part parties will realize “that the only way out [of the financial difficulties consequent on the break-up] is if they pull themselves up by their own bootstraps”.

24 If the misconduct point were to be viewed in isolation, the appellant is correct, but the point cannot be viewed in isolation. The fact is that both the Chambers judge and Newbury J.A., who differed from her colleagues on the relevance of the misconduct, cited numerous other factors (also referenced by the majority judgment) to reject the appellant’s attempt to extricate himself from any further financial responsibility for his former wife. Newbury J.A. observed that

Mrs. Leskun is now 57 years of age and her affidavit evidence points to various family difficulties and to her medical problems and those of her family. A court cannot ignore these difficulties, which have been exacerbated by the breakdown of the Leskuns’ marriage. For this reason, and not because of any self-imposed disability, I would reluctantly uphold the order of the Court below and dismiss the appeal.[para. 63]

I agree. I would add the point made by the Chambers judge about the narrowness of the respondent’s work experience, and underline the difficulty of someone now approaching 60 years of age to re-enter the labour force after a lengthy absence and with few marketable skills outside the limits of her former job at the bank, now eliminated.

It is clear from the parts of the judgment that I have emphasized in bold that the courts all the way up to the SCC are ruling in this woman's favour because she has various difficulties in her situation that leave her in a disadvantaged position to her ex-husband as a result of the break-up of the marriage. His future ability to earn money and take care of himself has been enhanced by participation in the marriage, hers has been correspondingly harmed, so she continues to be entitled to support.

The SCC is very specific to rely on the B.C. Court of Appeal remark that the ruling is "not because of any self-imposed disability". So, Riverwind's concern that the SCC has endorsed this woman's "bitterness over infidelity" is misplaced.

FTA

[August1991]

In my view, it is always advisable to read the actual judgment rather than some journalist's interpretation.

In this case, I'm going to disagree. I think journalists and ordinary people understand perfectly well what this decision means.

FTA Lawyer, we are not solving differential equations here. Rather we are dealing with a subject in which everyone is an expert: wife, husband, marriage, family.

I don't know if the existing settlement in this case was out of line or not. And I'm not denying that people must assume the consequences of their choices. Marriage and parenthood are long term commitments.

The key question is whether the courts' decisions set the proper incentives so that people, before getting married or having children, understand how future costs will likely be shared. The court should not incorrectly discourage people from getting married, or having children.

FTA Lawyer, you tell me if I'm wrong. The decisions in this case amount to an encouragement to mooch. All things considered, I can see no other interpretation. True, this is hidden under modern legal bafflegab of fairness but mooching it still is.

This is unfortunate. The court is unleashing the mooching seagulls, and in response, the feeders will cover up the table scraps. A society of moochers and moochees is moribund. In such a society, people devote their efforts to getting the scraps, or protecting them. Too little time is left to preparing the meal in the first place.

In Canada, we can afford such nonsense because we are fortunate to have easily accessible natural ressources, and to have a civilized country to our south who protects us and gives us all the new ideas we need. Canada sits atop a gold mine, beside a police station, with a satellite dish in the attic.

If Canada were a person, it would be Paris Hilton. Canadians can afford to be foolish, and these court decisions are evidence.

[FTA Lawyer]

FTA Lawyer, you tell me if I'm wrong. The decisions in this case amount to an encouragement to mooch. All things considered, I can see no other interpretation. True, this is hidden under modern legal bafflegab of fairness but mooching it still is.

Well, I certainly do not suggest that I am an authority on family law, but the basic premise is that where one spouse sacrifices their autonomous ability to support themselves in order to assist the other spouse in becoming successful / wealthy, then upon the break-up of the marriage, it's not right to let the now successful spouse go off and live the high-life and leave the now economically non-viable spouse to struggle in near poverty.

Does this effort to level the playing field encourage mooching? I suppose it does to some extent. BUT, it's a far more palatable result than our old system where the 55 year-old wife of 30 years whose only skill was being one hell of a mother to the 5 kids of the marriage and who had not had a "real" job since the wedding date got NOTHING because at the time of the divorce all of the marital property was held in the husband's name alone.

Spousal support payments are open to potential abuses just like anything else, but generally speaking it is a method that for the most part does provide a degree of fairness when couples part.

FTA

[RB]

“women are cool” but not to the extent that they cannot sustain or support themselves even when they are jilted and in their 50’s.

I suppose I was encouraged to give women the freedoms they deserved. Isn’t that what women are fighting for all the time?

The fact that feminism started the ball rolling to get women paid work opportunities and made head way giving them equal social status in economics and politics.

So I of course balked at the notion that it is considered a victory that women still needed to attach themselves to some man for total dependency armed with the law on their side.

The Supreme Court ruled that emotional pain suffered must be compensated. What trauma! and how distressing for the lady!

I question of course why all people cannot take responsibility for their own actions and for themselves. At what point can you manage on your own?

Just makes you rethink the context of marriage. Men, of course, agree to take full responsiblity to cherish the person they marry for life.

It is ironic that women are the ones who demanded divorce to be rid of the fools, yet, they can’t seem manage on their own.

[Riverwind]

The Supreme Court ruled that emotional pain suffered must be compensated. What trauma! and how distressing for the lady!

Providing regular payments to someone because they cannot/will not move on with their life simply encourages them to continuing wallowing.

Consider this hypothetical situation: a woman (or a man) is devastated by the breakdown of a marriage and develops a problem with alcohol and cannot hold a job. The alcoholic ex-spouse refuses treatment for alcoholism yet is still entitled to receive support payments. Is this fair? Can't you see how providing spousal support payments actually makes the gov't an enabler and gives the ex-spouse and excuse to continue drinking?

That is why this ruling sets a bad precendent that will make divorce lawyers very rich.

[Charles Anthony]

Where they draw the distinction is that it has always been relevant to consider the means, needs and other circumstances of the spouses in deciding spousal support, so, if a spouse is unable to become self-supporting for reasons which happen to be the result of misconduct, you shouldn't ignore those reasons.

Now, I get it. Thanks for pointing it out.

Personally, I really think that all of this can be resolved fairly by:

first, eliminating marriage as a legal issue to be managed by the government;

second, if people want government or state or "society" to protect them in the case of a divorce, they should create personal pre-nuptial agreements. Period.

Like any other contract, if one party does not respect the terms of the pre-nup, they can resolve it in court.

Why should marriage be treated any different from wills or last testaments?

other than to create bureaucratic jobs.... maybe?

[Hicksey]

Too embittered to work? I haven't heard a bigger pile of it.

I think we really need to start enforcing equality. If she wants him to support her and their kid she should have to go get a job and produce equally. Otherwise only child support. If he can be expected to work after marriage why can't the wife be?

The problem with equality is that people cherrypick where it is useful and its not enforced everywhere. If they want to be able to expect things from us, then we should be able to expect the same from them.

[August1991]

Personally, I really think that all of this can be resolved fairly by:

first, eliminating marriage as a legal issue to be managed by the government;

second, if people want government or state or "society" to protect them in the case of a divorce, they should create personal pre-nuptial agreements. Period.

Like any other contract, if one party does not respect the terms of the pre-nup, they can resolve it in court.

Charles, what has happened here is exactly what you suggest. The government had nothing to do with this decision. The divorce was disputed and the couple went to court.

Moreover, a prenuptial agreement would have changed absolutely nothing. There is no way one side in the marriage can protect themselves short of not getting married.

That is why this ruling sets a bad precendent that will make divorce lawyers very rich.

Riverview, you make it seem as if it's the lawyers' fault. It is the woman who is driving this case.

Make no mistake: this is an invitation for others to do the same and the end result over time will be fewer marriages and fewer children.

----

This decision is very much in line with other decisions concerning compensation paid to various groups for alleged sins or omissions. Over the past 40 years or so, some Canadians have become highly skilled at getting "free" money out of other Canadians. It has become a major sector of our economy.

It's legalized mooching and our jurisprudence has developed an entire branch devoted to its finer points.

Here's another recent political example.

[Charles Anthony]

Charles, what has happened here is exactly what you suggest. The government had nothing to do with this decision. The divorce was disputed and the couple went to court.

Comprendo. I see now.

However, I am even more disturbed.

Moreover, a prenuptial agreement would have changed absolutely nothing.

It sounds worse than I thought. If the terms of a pre-nuptial agreement (or any contract) can be over-turned by a court that means we have diminished value to our civil law system. It sounds like a contract can be torn up, does it not?

Make no mistake: this is an invitation for others to do the same and the end result over time will be fewer marriages and fewer children.

I am starting to question whether that matters because people who are shacking-up can effectively claim pseudo-spousal support in the event of a break-up. Do we not have a blurred line between marriage/common-law/shack-up/civil-union/whatever already?

I think your observation:

It's legalized mooching and our jurisprudence has developed an entire branch devoted to its finer points.

is very accurate.

[Kindred]

In terms of moral responsibility on partners entering into a contract, and yes more most business contracts do contain a moral clause, perhaps it is time marriage contracts also contain a moral clause. I find that an interesting concept.

Speaking from a moral point of view, if a partner enters into a contact with another person based on the assumption the contact will be honoured, and then discovers information presented by their partner was erroneous and full disclosure was not given at the time of the contract, do you not have legal avenues you can pursue?

If a person presents themselves as fully qualified for a position and then you find out they have no qualifications pertaining to that position do you have legal claim against that partner?

Case in point if a woman marries a man who claims to be hetrosexual and to be employed and financially stable, then discovers he has lied about sexual orientation and his financial situation, and is a substance abuser and has a huge amount of debt, should she not have legal recourse? Especially if she has contrbuted financally to the partnership and he has not?

The emotional distress and traumatic repurcussions of a cheating spouse cannot be discounted either. As with most traumatic events, the death of the family member, a loss by natural disaster, or what have you, the emotional impact and subsequent Post Traumatic Stress can be and is a disabling trauma.

Thats my "legal argument" ....... setting aside the specifics of this case and looking at the situation in general for women over 50 I would have to say it is something that should be considered and has been a too long time coming.

Employment for people over the age of 50 is very hard to come by. The reality is that most managers and personel people these days are in their 20's, and people over the age of 50 look ancient to them. And they dont want their "mothers" working with them and ruining their fun ........ and they think people over the age of 50 just cant hack it in a technological world. They wont fit in with "the team".

For a lot of people over 50 there is, unfortunately, a technology gap between the generations.

I am not saying this is the case for the majority of people over 50, but it is a stereotype that haunts people over 50 when they are searching for jobs.

Their degrees, obtained 30 years ago are now said to be "redundant". If they try to transfer credits to complete a degree they are told they cant because the credits "are too old".

Generally speaking when talking to a woman filing for divorce I advise them to ask for spousal support until they can complete the necessary education to enter the workforce and be viably employed -

HOWEVER our society tends to overlook and discard people over 50 and many companies have an unwritten policy of NOT hiring anyone over the age of 30 something ........

All the Financial Commercials are pushing the concept of retiring at age 55 these days. Think of the reality of starting over at square one at that age instead .....

You are seeing far far too many outsourced and redundant over 50 person employed in Call Centres making minimum wages these days. People who have been pushed out from Management positions with other businesses.

This is a reality that may not affect many of you, yet. The decision made today will come around to haunt everyone when they hit that magic redundant age of 50something.

If you research your stats you will see that most women end up living in poverty after a divorce. For women over 50 the numbers increase dramtically. If there isnt an equal distributuon of wealth in our society should there not be, at least, in marriage?

Sadly women's earning power in Canada is still behind a man's earning power, women are still being funneled into pink collar occupations and paid less. The salary for clerical positions has been steadily decreasing in the Canadian Job Market. These are the positions most women over 50 were trained in.

At the time that most of these women entered the work force, if they did and didnt stay home to maintain a family and household, there were still classified ads that read "women wanted" and "men wanted".

These are the women who fought for equality and yet few of them have reaped the benefits ....... and now they are being told they are redundant and unemployable ....