Nov 29, 2014





















Facts

Married in 1993, the divorcing couple had a stormy relationship. Having not as of then lived separately and apart for one year, she alleges cruelty and he alleges adultery for grounds of divorce, but she says that the 'affair' occurred after they no longer were together.

Legal Issues

(1) Do they have to live together for there to be adultery, which qualifies as a grounds for divorce? (2) Consequently, it is not necessary to determine whether there was cruelty as a grounds for divorce. (3) Is reconciliation possible? (4)What are the criteria for determining spousal support for the wife?

Holding

1. No 3. No 4. As established in Moge v. Moge

Ratio

(1)The fact that the parties were already living separate and apart does not preclude adultery as a ground for divorce. The husband did not know of or approve of the adultery prior to its occurrence and has not condoned it (duty of fidelity remains until divorce)
(2)Allegations of physical and verbal violence (cruelty) earlier in the marriage are disputed and, in any case, the physical violence has not occurred again based on the wife's own testimony. Furthermore, there is evidence that by the wife showed 'condonation' by living with the husband again for 2.5 years and having a child with him.
As adultery has already been established, it is not necessary to decide upon the grounds of cruelty.
(3)Based on the circumstances, reconciliation does not seem to be possible either.
(4) Section 15(5) of the Divorce Act requires that the following factors be taken into account: the length of time the spouses co-habitated, the functions performed by the spouse during cohabitation, and any order, agreement or arrangement relating to support of the spouse or child.
Section 15(7) requires that an order for spousal support recognize economic advantages or disadvantages flowing from the marriage or breakdown, apportion between the spouses child care expenses that go beyond those that are addressed by a child support order, relieve hardship flowing from the breakdown of the marriage, and promote economic self-sufficiency of each spouse within a reasonable time.
Based on Moge, all these factors must be taken into account and no single one is determinate.
Considering that the parties had only lived together for a relatively short 3 years, that there was also no agreement that she would stay home with the baby, that, in fact, their level of consumer debt more or less obliged them both to be working parents, it is not justifiable to encourage her to continue long-term to be a stay-at-home mom, especially considering that she is just thirty and is employable, and her remaining at home would handicap his ability "to establish another home and an independent life for himself".
But the husband should pay $1000/month in spousal support for a year (based on a 36K salary) to enable her to look for work, arrange child care, and possibly upgrade her skills. This is considered "reasonable compensation for the economic disadvantages and hardships arising from the marriage and its breakdown."

Comments

There are some marital property issues that I don't summarize here since Leckey emphasizes that this is not a marital property course.