Canada high court ruling on spousal misconduct challenges no-fault divorce law

[JURIST] Canadian legal observers expressed concern Thursday that a new ruling from the Supreme Court of Canada [official website] will open courts to a flood of divorce litigation revolving around allegations of spousal misconduct, despite the terms of the 1985 "no fault" Divorce Act [Justice Canada materials] which eliminated misconduct as a relevant consideration when determining spousal support. In Leskun v. Leskun [opinion text] Wednesday the court considered the misconduct of the husband in upholding spousal support payments for his ex-wife. Writing for the 7-0 court, Justice Ian Binnie [official profile] distinguished between "the emotional consequences of misconduct and the misconduct itself," saying that the former can determine whether a spouse is capable of self-sufficiency. Sherry Leskun's age, health and limited work experience, combined with her shock over her husband's cheating with another woman, rendered her incapable of self-sufficiency, thus qualifying her for hefty support payments.

Some legal scholars expressed concern that the court permitted spousal misconduct to play a major role in determining eligibility for spousal support payments while at the same time emphasizing in explicit language its unwillingness to allow value judgments to be made regarding the fault of one spouse or the other. The Globe and Mail has more on the ruling and the reaction.

 

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