mar. 4. 2015

Last week, Jodi Martin wrote the post “When you are strong on the facts…” on the Leskun v. Leskun decision. This post will serve as my counter-point.

It seems to me that Jodi’s main concerns with Leskun are that it implicitly reintroduces fault into the spousal support scheme and that it was far too light on guidance for the lower courts and family lawyers.

I really agree with a lot of what Jodi had to say, especially with her conclusion: that the SCC had ample room to avoid this minefield, and it shouldn’t have entered into this game of distinguishing between behaviour and the consequences of that behaviour. However, the SCC did enter that minefield, and while Jodi and I certainly agree that it would have been better if they avoided it, we remain split over how to feel about it.

A 1985 amendment to the Divorce Act expressly removed consideration of conduct as a valid consideration when making an order for spousal support. So the question is whether the SCC implicitly reintroduced fault through the distinction they created between misconduct and the consequences of misconduct.

I think this case is more appropriately characterized as one of many in which the findings of fact of the chambers judge forced an appellate court to make a ruling which is not 100% satisfactory. Here, the chambers judge made a finding of fact that Ms. Leskun was not self-sufficient and remained in need of spousal support. The judge cited a number of factors for this: Ms. Leskun’s age, her health, her narrow work experience and lack of formal education, and most controversially, her “bitterness over the end of the marriage.”
Ms. Leskun (who was self-represented) introduced an impressive amount of evidence to support all of those factors, but did not introduce medical evidence demonstrating how her bitterness had affected her ability to become self-sufficient. Nevertheless, the chambers judge found that her bitterness was a valid component explaining her lack of self-sufficiency, and that all of the factors taken together necessitated continuing spousal support payments.

The B.C. Court of Appeal muddied the waters when it wrote that it is appropriate to explain lack of self-sufficiency “at least in part from the emotional devastation of misconduct by the other spouse.” The SCC took pains to distance itself from this ruling. Indeed, it wrote that the BCCA was wrong to imply that misconduct was a valid consideration. Further, the SCC technically resolved the appeal wholly on the force of the non-conduct related factors, and so didn’t even directly consider the “consequences of misconduct” that are so controversial.

Still, the SCC made obiter remarks about distinguishing between misconduct and the consequences of misconduct. But even there, I find the analogy they use to illustrate the distinction very informative of their aim.

The SCC wrote that if severe spousal abuse had caused the abused spouse to be depressed to the point that that he or she was unable to work, this should factor into the spousal support payments. Not because the family courts are denouncing spousal abuse (that is left to the criminal courts), but because one spouse is unable to work, for whatever reason, and that inability stems from the marriage. The SCC wrote that the “consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct.” My reading of this is that the SCC places no special importance on the consequences of the misconduct; they are just trying to ensure that there aren’t any circumstances which are categorically excluded from consideration.

Whether the Ms. Leskun was so embittered by the divorce that it caused mental health issues on par with severe depression is certainly a good question. But it was unfortunately resolved without much inquiry at the trial stage, and the SCC was not in any position to alter the findings of fact. They were dealing with a set of facts that characterized Ms. Leskun as having a state of mind which precluded finding a job.

So I think that Jodi was exactly right when she wrote that, “when you are strong on the facts… you argue the facts.” I’m sure they were argued extremely well at the trial stage. Perhaps so much so that the chambers judge may have made a premature ruling that Ms. Leskun’s bitterness was aided in part by the heinous conduct of her ex-husband. But the time for arguing facts was long past by the time this case reached the SCC. In that venue, all that was left to argue was the law.

And stripped of the ambiguity wrapped around the word “bitterness” the law remains, I think, substantially the same: when someone is so mentally, physically, or economically disadvantaged by the marriage so as to be unable to be employed, then they are entitled to be compensated via spousal support.

Finally, one of Jodi’s primary concerns was that this ruling introduced more ambiguity and more litigious issues into the already crowded field of family law. And for that, I do not have a rebuttal. Judging from the coverage in the press, this case certainly gives the appearance of adding more litigious issues, and that is the last thing family law needs.

I can only hope that the chambers judges who deal with similar issues will insist upon high standards of proof when making determinations of how mental well-being affects an individual’s ability to be self-sufficient. I think that would cause this decision to only apply to a tiny sliver of family law cases, and therefore not give rise to any additional reasons to litigate.