Janice Tibbetts Can West News Service
Published Thursday, June 22, 2006
OTTAWA - Canada's no fault Divorce law should not stop courts from considering a cheating spouse's marital transgressions when awarding support if the jilted party is too traumatized to work, the Supreme Court of Canada ruled Wednesday.
But Justice Ian Binnie, writing for the unanimous bench, emphasized that the ruling is not meant to send Canada back to the days of blame in Divorce, when the amount and duration of payments were directly based on fault in a marriage breakdown.
"There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself, " said the 7-0 decision. "The consequences are not rendered irrelevant because of their genesis in the other spouse's misconduct.
The ruling upheld a support award of $2,250 a month for Sherry Leskun of Abbotsford, which was based on several factors, including her inability to achieve economic self- sufficiency because she was devastated after her husband left her for another woman.
The 1985 Divorce Act removed fault from Divorce and the issue before the Supreme Court was whether the case of Leskun vs Leskun revived the concept of blame.
Courts have struggled with what to do when spouses complain that matrimonial misdeeds have financial consequences after Divorce.
Binnie said it is clear under the law "that misconduct should not creep back into the court's deliberation" when setting the amount of spousal support.
"Misconduct, as such, is off the table as a relevant consideration, " he wrote.
However, he added that the consequences of misconduct can be "highly relevant" citing as examples the Leskun case and instances of spousal abuse that trigger a depression that leaves a person unemployable.
Brenda Cossman, a family law expert at the University of Toronto, said the ruling may "open a can or worms" by potentially giving extra ammunition to wronged spouses seeking financial support.
"The court is trying to make a clear statement where we're not going back to the bad old days when fault determined everything, " she said "but there's a red flag around this case that suggests if you're so emotionally devastated by the affair, you're going to want to argue that in the context of spousal support. That's what is slightly troubling about this decision. The thrust of family law has been to get away from all of that. We don't want to get back to who did what to who."
The battle of Leskun vs Leskun began in the summer of 1998, when Sherry Leskun then 51, learned that she was being dumped for another woman. At the time she had just lost her longtime banking job, she was recovering from painful back surgery, and she been planning a move to Chicago to join Gary Leskun, her husband of 20 years, in his new city of employment.
"This is a person who really had the whole world come crashing down around her, " said Colin Millar, who was appointed by the Supreme Court to help argue Sherry Leskun's side because she has represented herself in this case.
Over the next few years, Gary Leskun's infidelity consumed his former wife and prevented her from making a new life for herself after the couple divorced.
Gary Leskun was earning more than $200,000 annually and he had a net worth of about $1 million when a judge ordered him six years ago to pay Sherry Leskun $2,250 per month. He went to court three years later in a failed bid to have the payments reduced or cut off partly because he said it was time for his ex- wife, with 34 years of banking experience, to find a new job. The lower courts in BC ordered him to continue to pay support to Sherry Leskun on the grounds that his misconduct was one of several factors contributing to her inability to get back on her feet financially.
Sherry Leskun will getting this spousal support for life....
