Supreme Court rules in landmark case
KIRK MAKIN
Globe and Mail Update
A Vancouver woman will receive monthly support payments from the ex-husband who cheated on her because the emotional toll of his conduct prevented her returning to the workplace, the Supreme Court of Canada ruled Wednesday morning.
A 7-0 majority emphasized that their ruling is not intended to return the concept of fault to divorce law. They instead expressed confidence that the emotional consequences of marital misconduct can be considered in spousal-support cases without actually slipping 'fault' back into the Divorce Act.
The Court awarded Sherry Leskun a continuation of her $2,200 monthly payments, based on the harm that Mr. Leskun's philandering caused her as well as the particular difficulty that a woman of her age has returning to full employment.
"There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself," the court said. "Those consequences are not rendered irrelevant because of their genesis in the other spouse's misconduct.
"On the contrary, they can be highly relevant to factors — such as a claimant spouse's capacity to be self-sufficient — which must be considered when making a spousal support order."
Writing for the majority, Mr. Justice Ian Binnie said the Divorce Act makes it abundantly clear "that misconduct should not creep back into the court's deliberation" as either a condition or a circumstance to be considered by judges considering a spousal-support application. "Misconduct, as such, is off the table as a relevant consideration," he said.
At the same time, Judge Binnie said, there a distinction to be made 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."
University of Toronto law professor Brenda Cossman said the ruling attempts to have it both ways — eliminating fault from divorce while at the same time saying that the consequences of misconduct can be taken into account in particular cases.
"What has opened up is a new route for people to argue that they cannot become self-sufficient," Prof. Cossman said in an interview. "I think it actually opens up misconduct in a very big way to be examined.
"As of today, you cannot go to court and say: 'My spouse committed adultery, therefore you should give me support,' " she said. "But you can go to court and say: 'My spouse committed adultry and I'm so totally devastated that I can't work and you should give me support.' "
Mr. Leskun left his wife of 20 years in 1998 to marry another woman. He elected to challenge lower court rulings that maintained his ex-wife's spousal support — rulings that he alleged have encouraged his wife to adopt a "scorched-earth" policy.
Ms. Leskun, 59, maintains that she was sufficiently traumatized and embittered by her husband's actions that she has been unable to support herself.
When it was redrafted in 1985, Parliament made "marriage breakdown" the single ground for divorce, usually after a year's separation. It specifically instructed courts not to consider any misconduct of a spouse in relation to the marriage and said that estranged spouses should hasten to become economically self-sufficient as soon as reasonably possible.
Lawyers for Mr. Leskun warned that fault would have crept back in the back door if his support order were not overturned. They warned that courts will be flooded with review applications from other embittered ex-spouses.
The Leskuns had a daughter together after they met in the late 1970s. They also raised two children from her first marriage. Ms. Leskun cashed in her RRSPs and worked to help put her husband through an MBA program.
He was later certified as an accountant and got a job in 1998 in Chicago working for Motorola. Ms. Leskun planned to join him within weeks. Instead, Mr. Leskun broke the news that there was another woman in his life and that he wanted a divorce.
Meanwhile, Ms. Leskun had lost some of her mobility from a 1995 back injury. In another blow, her job was eliminated. Mr. Leskun agreed to pay interim support payments of $2,250 a month. Upon their divorce, their assets were split and the spousal support payments were extended until Ms. Leskun could return to full employment.
In 2003, however, Mr. Leskun asked a judge to end his payments on the basis that his ex-wife was not making adequate headway in returning to the work force. Although no longer employed, Mr. Leskun had saved about a million dollars by this point.
A B.C. trial judge ruled that while Mr. Leskun was doing well financially and had "significant earning capacity," Ms. Leskun had become obsessed with her ex-husband's betrayal and was far from achieving self-sufficiency.
A year later, the B.C. Court of Appeal upheld the payments in a 3-0 ruling. Two of the court's judges reasoned that Ms. Leskun had a right to continued support payments since there was a direct link between her ex-spouse's conduct and the emotional toll that had prevented her becoming self-sufficient.
The third judge disagreed philosophically but said that the support order was warranted because of Ms. Leskun's age and medical problems.
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