© 2003 Karen Selick
Go Ahead, Make Our Day
An edited version of this article first appeared in the January 22, 2003 issue of The National Post.  If you wish to reproduce this article, click here for copyright info.


Rubbing Salt Into Divorce's Wounds

It will be interesting to see whether Canadians start clamouring for changes to the law as a result of what happened to Elina Scavetta recently. This unfortunate woman made news when an Ontario judge ruled that her former husband could proceed with his claim for spousal support from her, despite his convictions for assaulting, criminally harassing, and making death threats against her. 

It may come as a shock to the average Canadian that violent behaviour such as this does not disentitle a spouse to support.  However, divorce lawyers can confirm that there was nothing novel about the judge’s ruling.  The only thing that was a bit unusual was the sexes of the parties.  Men don’t usually claim support from their wives, so the incidence of violent men claiming support from their female victims is correspondingly small. 

However, many women claim support from their husbands--and unfortunately, violence by wives is not as rare as some would like to believe.  I’ve had many male clients admit to me that their wives have physically attacked them, sometimes repeatedly.

Undoubtedly the most offensive case of marital violence I ever heard of was the Brampton, Ontario man whose wife plunged a butcher knife six inches into his chest while he slept.  Doctors saved his life, but the “justice system” then ordered him to pay his attacker support of $1,500 per month. 

The reason for this outrageous result is the language of the 1985 Divorce Act:  “In making an order [for spousal support]…the court shall not take into consideration any misconduct of a spouse in relation to the marriage.”

Before 1985, the Divorce Act had said that the court may order spousal support “if it thinks it fit and just to do so having regard to the conduct of the parties…"

This legislative about-face on the issue of conduct is often confused with the concept of “no-fault divorce”.  It shouldn’t be.  There is no reason why the state should require people to remain tied together in the legal status of “married” when their relationship has actually broken down.  Unless we proposed to compel all married couples to continue living together under the same roof—a proposal which I can’t imagine any rational person supporting--we might as well let them divorce.  Whether the marriage breakdown resulted from violence or mere loss of interest, let’s just call a spade a spade.  This is what “no-fault divorce” should really mean. 

It’s quite a separate issue from the question of what financial consequences should flow from the ending of the relationship and the conduct of the spouses during the relationship.  Marriage is, after all, a form of contract.  Recognizing that the contract has been terminated by a breach is not the same thing as saying that the breach should be treated with impunity. 

Of course, violence is not the only form of marital misconduct that spouses engage in—and possibly not even the most common.  Adultery is another frequent transgression.  When I first started practising family law, a wife who deserted her husband to move in with his best friend was not likely to get spousal support.  Nowadays, she almost certainly will.

It’s bad enough that one spouse can inflict heartbreak and misery on the other innocent partner, and frequently on the couple’s children as well, without paying any form of compensation.  But a law which allows an adulterous or abusive spouse to rub salt in her victim’s wounds by demanding that the victim pay her is a law that simply begs to be changed.

It’s also a law that is strangely out of synch with the cloyingly over-solicitous sentiments that now pervade Canadian jurisprudence.  In virtually every field of law other than matrimonial law, hurt feelings are a free ticket to boundless judicial sympathy and large dollops of money. 

In employment cases, for instance, Canadian courts commiserate at length over the pain and trauma of losing one’s job, then award money to the employee.  What about the pain and trauma of losing one’s marriage, one’s home, one’s family?

Under so-called “human rights” law, cash is awarded for hurt feelings even if the alleged human rights violator had no intention of insulting or offending anyone.  Why then do we allow spouses knowingly and deliberately to wound each other, either physically or emotionally, without paying compensation?

Ottawa lawyer Julien Payne explained it to the National Post this way:  “…we wanted to get away from warfare in the courts. You increase hostility when you have people flinging around allegations.”

Hmmm…I can’t help comparing the low divorce rates of the “bad old days”--when people were actually punished for their transgressions--with the much higher divorce rates of these supposedly halcyon days when they’re rewarded for them.  Could it be that the unpleasant prospect of having one’s betrayals and sins exposed in public might actually have dissuaded some people from committing them?

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February 6, 2003