July 22, 2006
Case Law Development: Supreme Court of Canada Allows Effect of Spousal Misconduct to be Considered in Awarding Alimony
Canada's Divorce Act eliminates consideration of misconduct in awarding spousal support. The Supreme Court of Canada has now ruled that, although misconduct like adultery is not relevant in a divorce case, the consequences of that misconduct may be. In justifying this nuanced distinction, the court noted:
The 1985 Divorce Act eliminates misconduct, as such, as a relevant consideration when making an award for spousal support. Section 15.2(5) provides that in making an interim or final order for spousal support, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”. In addition, s. 17(6) instructs the court not to consider in a variation application any conduct that could not be considered in the making of the initial order. These provisions make it clear that misconduct should not creep back into the court’s deliberation as a relevant “condition” or “other circumstance” which the court is to consider under s. 15.2(4) in making or varying a spousal support order. There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. 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. Failure to achieve self‑sufficiency is not a breach of “a duty”. It is simply one factor amongst others to be taken into account when considering a spousal support order.
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