When You Are Strong on the Facts: Leskun v LeskunLeskun v. Leskun, 2006 SCC 25,  1 SCR 920
You argue the facts. In Leskun v Leskun, 2006 SCC 25, the facts clearly had the Supreme Court of Canada (“SCC”) scrambling to justify a Chambers judge’s foray into a place clearly forbidden by the Divorce Act, RSC 1985, c 3 – a consideration of conduct.
Sherry and Gary Leskun were married for 20 years. During most of this time Sherry worked at the Toronto Dominion Bank. During their marriage, Sherry cashed in her RRSP’s and obtained the return of her pension contributions in order to assist Gary to earn his MBA and designation as a Certified General Accountant. Gary left TD for Motorola in 1993. This job moved him in 1998 to Chicago, where Ms. Leskun and their daughter planned to join him.
After Gary moved to Chicago, Sherry’s job at TD was eliminated. A recurring back injury enabled Sherry to qualify for long term disability benefits. In September of 1998 Gary returned from Chicago to say that he wanted a divorce. The parties were divorced in 1999 and Ms. Leskun’s disability benefits were discontinued that same year.
At trial, Ms. Leskun was awarded $2,250/month in spousal support because she had been disadvantaged by the marriage and because there was considerable doubt about her ability to attain self-sufficiency. In 2003, Mr. Leskun applied to discontinue the spousal support payments, claiming that he was now unemployed and in financial difficulty. The Chambers judge held that Ms. Leskun had been unable to attain self-sufficiency because she was still
consumed by bitterness over the end of her marriage and what she sees as the betrayal and duplicity of her former husband.
Mr. Leskun appealed – after all, according to the Divorce Act conduct is clearly off the table in spousal support determinations. The British Columbia Court of Appeal held that s. 15.2(5) of the Divorce Act did not preclude a Court from addressing how the emotional devastation caused by a spouse’s misconduct resulted in the other spouses’ inability to attain self-sufficiency (see 2004 BCCA 422). The SCC agreed, drawing an elusive line between a consideration of conduct, which is prohibited under the legislation, and an evaluation of the consequences of the same conduct.
Huh? Six months later, it is still unclear why the SCC felt compelled to engage in this exercise of line drawing between conduct and consequence that has Joe (and Jane) public scratching their heads in bewilderment. The media were not much help in clearing up the confusion: “Is No-fault divorce still alive in Canada?;” “Emotional Trauma can be weighed in divorce;” “Emotions a factor in spousal support – But top court says actual misconduct is not a direct factor.” Why not simply continue compensating Ms. Leskun for the economic disadvantage and hardship resulting from her marriage breakdown? The Divorce Act clearly allows for this and though the SCC may have had to directly address a balancing between these factors and the principle of self-sufficiency some elaboration in this respect may have proved helpful for family law practitioners.
Recognizing that nobody likes a “floodgates” argument anymore, the current judgment provides little guidance on how to cope with those claimants who want their day in court to air their grievances, so to speak. Can their lawyer really tell them that there is no space for this – that conduct is completely off the table? The last thing that family law needed was more issues to litigate about. Continuing to rely on the grounds cited in the original support determination might have appeared to be a stretch, but the legislation vests the judiciary with significant discretion in determining quantum and length of time for spousal support and they are the Supreme Court of Canada.