The parties were married in 1978. After 20 years of marriage, during which the wife worked, financially contributed to her husband’s continuing education, and bore his child, she suffered a significant back injury and was laid off from work. Soon after, her husband told her that he wanted a divorce to marry another woman. The parties divorced in 1999. At trial, the wife was found to be entitled to support and was granted $2,250 per month until she returned to work, at which point support would be reviewed. In 2003, an application by the husband to discontinue support payments on the basis that he was now unemployed and in financial difficulty was denied. The chambers judge found that the wife was not self‑sufficient and remained in need of spousal support. The Court of Appeal affirmed the ruling. A majority of the court indicated that the Divorce Act did not prevent consideration of a failure to achieve self‑sufficiency as being the result, at least in part, of the emotional devastation caused by the other spouse’s misconduct. The husband appealed stating this was contrary to s. 15.2(5).
- Is the consideration of emotional devastation caused by marital misconduct in violation of s. 15.2(5)?
Binnie, writing for the court, held it was clear that spousal misconduct was irrelevant to support outcomes, but the consequences are relevant if it affects the other spouse's ability to become self-sufficient. There is a difference between ordering support based on misconduct and the consequences arising from it. This theory had previously been applied to domestic abuse situations, but had not previously been applied to infidelity. The support arose not from the infidelity, but from the wife's inability to support herself - she was a "thin skull" wife. It remains incumbent on the spouse to attempt to become self-sufficient, else they risk having income imputed to them.
Turning to the nature of the original order, which was subject to review, Binnie held that judges should approve final spousal support orders and leave variations to applications under s. 17, which would require a change of circumstances under s. 17(4). Review under s. 15(2), as in this case, are more favourable to the party seeking review, and thus should be strictly limited in the original support order. Regardless, on the facts of this case the onus was not important as the appeal failed on the facts.
- Spousal misconduct is not relevant to spousal support, but consequences of spousal misconduct may be relevant insofar as they affect self-sufficiency.
- Courts should generally approve final support orders and only use review orders if there is genuine and material uncertainty at trial with regard to future financial position.