© 1998  Karen Selick
Spousal Support—Time to Consider Misconduct
An edited version of this article first appeared in the January, 1998 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


(Second in a two-part series.  Click for part 1,  Spousal Support--Heads She Wins, Tails He Loses.)

Spousal Support—Time to Consider Misconduct

Has anybody ever noticed that the basic rule of spousal support law in Canada bears a striking resemblance to a famous quotation from Karl Marx?   In Ontario, for example, the law requires every spouse to support the other spouse "in accordance with need, to the extent that he or she is capable of doing so."  Marx’s famous formulation of the basic principle of communism is:  "From each according to his abilities, to each according to his needs."  They’re pretty close.

I am not suggesting the law on spousal support is part of a communist plot.  However, the similarity between these two quotations is not merely coincidental.  Both Canadian law and Marx’s dictum are founded upon a belief that the state has the right to override agreements that individuals make between themselves, if doing so helps implement the state’s current plan of social engineering.

In the case of spousal support, Canadian law-makers have decided that their overriding social goal is to give an income to ex-spouses (usually women), regardless of how they behaved during their marriages.  Consequently, the Divorce Act states explicitly that in making an order for support "the court shall not take into consideration any misconduct of a spouse in relation to the marriage."

The overwhelming majority of people subscribe to a common and very reasonable set of expectations when entering marriage, even if they don’t write up a formal pre-nuptial contract spelling them out.  Many of these expectations are encompassed by the standard marriage vows.  At the very minimum, people expect their partner to be sexually faithful and sexually available, to refrain from acts of physical violence or psychological cruelty, to refrain from becoming drug or alcohol addicts, and to pull their weight in carrying out the various responsibilities essential to family survival.

If such was indeed their common understanding, then it seems perfectly just to say that the spouse who breaches the agreement should compensate the one who abided by it.   The adulterous husband, the wife-beater, the alcoholic who spends every pay cheque on booze while his kids need new shoes, or the man who simply walks out one day, tired of his obligations, have no-one to blame but themselves when their wives seek a divorce and support.  These wives, assuming they’ve kept up their end of the bargain, deserve support.  Their lives have been ruined through no fault of their own.  If their husbands hadn’t deceived them with false promises, they might have built happy lives with someone else.

On the other hand, if it is the wife who destroys her husband’s chance at happiness through infidelity, violence, alcoholism or neglecting her responsibilities, then he is the one who is justified in terminating the marriage—and she is the one who should compensate him, or at least not benefit from her own breach of agreement.

What actually goes on in Canadian courts today?   Consider the Brampton, Ontario husband who was abused by his wife, both physically and emotionally, for 20 years.  Among other things, he alleged she had once butted out a burning cigarette on his body.  The relationship finally ended when she plunged a butcher knife six inches into his chest while he slept.  Fortunately, he survived—to find himself paying support of $1,500 per month to his attacker.

Or pity the unfortunate B.C. man who begged his wife "on his knees" to stop drinking, and finally left her when she wouldn’t.  The court described her contribution to household chores during her years of drinking as "questionable at best, abysmal at worst."  Nevertheless, the husband was ordered to pay her $2,000 a month.

Or consider Mr. B., mentioned in the first of these two columns, who was simultaneously the sole breadwinner and the main cook and housekeeper in a "marriage from Hell" but still found himself paying his wife $1,500 per month with no time limit.

Most lawyers who work in this field can tell stories about spouses who have been awarded support despite their adultery, their desertion, their violence, their alcoholism, their mental cruelty and their failure to make any substantial contribution to the family’s welfare.

Any suggestion that this is unjust is typically brushed aside with the comment:  "You wouldn’t want to go back to the bad old days, would you?"  They mean the days when people aired their dirty laundry in court, and private investigators skulked around gathering evidence of adultery.

Well, there’s this to be said for the so-called bad old days:  the divorce rate was only a small fraction of what it is today.  Maybe it’s time we admitted that the unpleasant prospect of having one’s betrayals and flaws exposed in public might have dissuaded some people from indulging in them.  Now that the law not only fails to penalize, but actually rewards spouses who commit adultery, acts of violence, or acts of self-destruction, we shouldn’t be surprised that a larger segment of the population will respond to that incentive by engaging in adultery, violence, and self-destruction. 

Do we really want to teach our children that bad behaviour has no negative consequences, and that the innocent person injured by another’s actions can expect nothing more from the justice system of this land than an order to pay, pay, pay?

- END -


..... ..... 


June 18, 2000