Conduct and Spousal Support: Will your behaviour affect your claims?

The Divorce Act is designed to award spousal support on a no-fault basis. It does not consider "any misconduct of a spouse in relation to the marriage." The Family Law Act also upholds the spouse's right to support in this regard, though conduct might be a consideration in determining the amount of support. An appeal to the Supreme Court signaled that one's behaviour might be a factor in decisions to make or vary spousal support orders, especially if the conduct during the marriage affected the other spouse's ability to work.

In Leskun v. Leskun (2006), the husband who had been paying his ex-wife support, appealed the support award. He claimed that she did not make herself financially independent. On top of that, he was facing financial troubles himself. Their marriage broke down when he informed his wife that he wanted to divorce her to marry another woman with whom he'd been having an affair. Clearly adultery was the misconduct, which, under the no-fault guidelines of both provincial and federal legislation, might seem insufficient grounds to deny his claim if his ex-spouse were to argue that the emotional toll of the affair left her unable to work. The Court, however, denied his appeal.

Distinguishing between "the emotional consequences of misconduct and the misconduct itself," the Court found that the "consequences are not rendered irrelevant because of their genesis in the other spouse's misconduct." Therefore, the affair itself was not a consideration in the support award, but the consequences extending from the misconduct were an issue. The Court recognized that the depression she suffered as a result of the affair and the subsequent termination of her marriage had made her unemployable.

There have been cases in which a spouse's behaviour has been a factor in awards of support. In one example the former husband had been abusive. As a result of the abuse, his ex-spouse was unable to work full-time after their separation. The Court awarded support such that she could overcome her disadvantaged position which resulted from his misconduct. The issue is not whether the conduct caused the breakdown of the marriage but rather whether a support award can remedy the economic damage the conduct caused.

Revised March 2015