Spousal Misconduct as it relates to Spousal Support

Tuesday, September 30, 2014

Many people that I have spoken to about spousal support in Ontario seem to think that, since Ontario is a no-fault divorce or separation jurisdiction, then ‘spousal misconduct’ is completely irrelevant when determining the amount of money that someone may be entitled to for spousal support.

While that is true, in a narrow sense, that spousal misconduct does not affect the obligation of someone to provide spousal support in Ontario, the whole picture is more complicated. Despite the fact that Ontario is a no-fault divorce jurisdiction, there is still statutory authority that allows a judge to decrease the amount of spousal support due to serious spousal misconduct. 

Nevertheless, upon the breakdown of a relationship, Ontario’s no-fault principle is still an extremely important factor to consider, and is weighed heavily by judges.

First of all, the federal Divorce Act, which only applies to couples that are married, provides at s.15.2(1) that a court may order a spouse to pay a reasonable amount for the support of the other spouse. Section s.15(2) is nearly identical, but it’s about temporary (‘interim’) spousal support orders.

What’s interesting, and perhaps somewhat misleading, is that s.15(5) of the Divorce Act provides the following:

“In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.” (Emphasis added)

So at this stage, you would think that for married couples, spousal misconduct would be irrelevant in determining spousal support. But the story does not end there.

The Family Law Act (“FLA”), which is provincial legislation, sets out “Support Obligations” in Part III. The term “spouse” is defined in s.29 in Part III of the FLA to include married couples, but also includes two people that are not married but have continuously  cohabitated for a period of 3 years or more, or that have been in “a relationship of some permanence” if they are the natural or adoptive parents of a child. These couples are usually referred to in everyday language as “common-law” couples.

Section 30 of the FLA imposes an obligation on a married spouse or a common-law spouse to provide support for the other spouse, in accordance with need, and to the extent that he or she is capable of doing. Therefore, the “Support Obligations” in Part III of the Family Law Act apply to both married couples and common-law couples alike.

When making a spousal support order under s.33 of the FLA, the judge will be guided by the legislated purposes of spousal support under s.33(8) of the FLA, such as recognizing the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse.

Additionally, when determining the amount of money to order for spousal support, the presiding judge must consider the list of factors at s.33(9) of the FLA, which includes, among other things, the financial capacity of the spouse to pay support and the financial need of the other spouse.

What many people seem to miss is section 33(10) of the FLA, which is set out below:

“The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.” (Emphasis added)

The first thing to note is that the court has discretion to regard spousal misconduct when determine the amount of support, meaning that the presiding judge may decide to not consider spousal misconduct under s.33(10), but has the authority to do so if the circumstances call for it.

Secondly, and perhaps more plainly just from the wording used by the legislator, the threshold for section 33(10) to be used is actually quite high, since the course of misconduct of the spouse must be “so unconscionable as to constitute an obvious and gross repudiation of the relationship.” Since the legal elements needed to use s.33(10) are stringent, then having the facts and evidence needed to successfully make out a claim to decease spousal support due to spousal misconduct would be difficult.

In the recent case of Menegaldo v. Menegaldo [2012] O.J. No. 2186 (“Menegaldo”), the issues of spousal support and child support were being disputed by the parties, who had divorced after 26 years of marriage. One of their adult children was undertaking a university program and had remained dependant on his parents for support, but his relationship with his father had become estranged for nearly two years. The father’s relationship with another child had deteriorated as well. The father claimed that the mother had sowed the seeds of discord between him and two of the children, so he sought a reduction of her spousal support due to spousal misconduct under s.33(10) of the FLA for parental alienation.

After citing the language of s.33(10) relating to “a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,” Justice D.L. Chappel in Menegaldo provided the following at paragraphs 63-64:

“The phrase "course of conduct" makes it clear that something more than an isolated event is required in order for section 33(10) to come into play. Nasmith, J. articulated the test to be used in determining whether section 33(10) applies in the case of Morey v. Morey43 as follows:

  1. The course of conduct must be exceptionally bad. In this regard, the court quoted the definition of "unconscionable conduct" in Black's Law Dictionary as being "conduct that is monstrously harsh and shocking to the conscience."
  2. The conduct must be such as could reasonably be expected to destroy the relationship.
  3. The conduct must have persisted in the face of innocence and virtual blamelessness on the part of the other spouse.
  4. The commission of a so-called matrimonial offence [adultery or cruelty] is not necessarily sufficient by any means.
  5. The party raising the issue of relevant conduct should be prepared to undertake that there is a bona fide belief that the test can be satisfied while acknowledging the risks of punitive costs if the Court finds on the whole of the evidence that the issue is frivolous.
  6. The pleadings or subsequent written particulars should set out a summary of the conduct relied on to meet the test so that the Court can make a preliminary ruling based on the likelihood of the test being met.

Quinn, J. commented on the stringent nature of the test to be met for conduct to fall within section 33(10) in Bruni v. Bruni, and emphasized that ‘it will be the rare case that meets the test.’ “

As indicated throughout the reasoning of Justice Chappell in Menegaldo, the father’s claim that his relationship with two of his children had deteriorated because of parental alienation caused by the mother was met with suspicion, since it seemed that the father’s own willingness to engage in conflict was the cause of the relationship breakdown with his children. At paragraph 106, Justice Chappel held the following on the issue of decreasing spousal support due to spousal misconduct under section 33(10) of the FLA:

“Again, I emphasize that the [mother] has not been blameless in this case. However, I reject the argument of counsel for the [father] that the [mother’s] conduct has been such that it would satisfy the test of unconscionable conduct within the meaning of section 33(10) of the Family Law Act. […] Her conduct has been far from perfect. However, it has not been "monstrously harsh and shocking to the conscience," as the test in Morey v. Morey requires for conduct to be considered in the spousal support analysis under section 33(10) of the Family Law Act. Furthermore, for all of the reasons articulated above, the requirement set out in Morey that the [father] be virtually innocent and blameless has most certainly not been met in this case.”

So, as you can see, the court will apply the requirements of s.33(10) of the FLA very strictly. Also, since one requirement of the legal test is that the other spouse must be “innocent and virtually blameless,” it really just follows logically from the mash-up of negative human emotions that tends to follow the breakdown of a long-term relationship that s.33(10) would be rarely used, since it is very rare that someone would be “completely blameless” in these situations.

However, in the recent case of Bruni v. Bruni, [2010] O.J. No. 5148 (“Bruni”), Justice Quinn of the Superior Court of Justice actually ordered the reduction of spousal support pursuant to s.33(10) of the FLA to only $1 per month due to the gross parental misconduct by the spouse seeking support.

Actually, if you have the time, you should read Bruni just to see the colourful and scathing comments by Justice Quinn about the spousal misconduct in this case.  You can read the decision here.

Bruni dealt with the extremely acrimonious relationship breakdown of a married couple with two children. Both parents essentially hated each other to the point that it undermined their rationality. In fact, in the opening paragraphs of Bruni, Justice Quinn commented on the absurd behaviour of both litigants and the hatred they expressed towards each other at paragraphs 1 and 2:

“Paging Dr. Freud. Paging Dr. Freud.

This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.”

The facts in Bruni are actually tragic. The couple had two children during the marriage, ages 13 and 11. After separation, the children remained with the mother. She started dating the father’s best friend, and he and his children moved in with the mother. After the parties had separated, the mother had essentially conducted an emotional manipulation campaign on her youngest child in order to destroy that child’s relationship with her father. For example, the mother insisted that the youngest child refer to the father’s best friend as her “real father,” and that father was a “loser.”

In law, when one parent intentionally undermines their child’s relationship with the other parent, this is known as “parental alienation,” and it is now a well-identified problem that the courts are attempting to redress by condemning instances of parental alienation.

At paragraphs 48 and 50 in Bruni, Justice Quinn described a few instances of parental alienation by the mother, as follows:

“[The mother] denied access entirely to [the father] from some point in January of 2010 up to the commencement of the four-month hiatus in the trial (May-October of 2010). This was a remarkably bold step on her part, taken without reasonable excuse or explanation. Most litigants are on their best behaviour as their trial approaches. Her conduct reflects the lack of respect she has for the legal system and the utter disregard with which she treats [the father’s] parental rights. She is a law onto herself. She is also oblivious to her lack of objectivity in matters of access.

During these enforced access visits, [the youngest child] repeatedly said to [her father]: "You're not my father. Sam's my father. You're a loser." These are comments that [the child] would have parroted from [her mother], I have no doubt. They are the result of persistent, behind-the-scenes brainwashing by [her mother].”

Due to the parental alienation caused by the mother after their separation, the father sought a reduction of her spousal support for spousal misconduct under s.33(10) of the FLA. However, the mother resisted this claim by alleging, among other things, that post-separation conduct is irrelevant under s.33(10) because such conduct is only relevant when it occurs during the course of their relationship, not afterwards. The mother also contended that her conduct related to the relationship between the youngest child and her father, and not her relationship with her former spouse, which she argued was outside the scope of section 33(10)’s application.

Justice Quinn disagreed with the mother’s arguments, and harshly condemned her behaviour. In fact, as you’ll read below, Justice Quinn described her behaviour as “evil.” The unforgiving language used by Justice Quinn at this part in the judgment is indicative of the severe frustration that judges experience when faced with cases involving parental alienation. One parent is usually engaging in extremely selfish behaviour, despite the serious emotional repercussions that parental alienation can have on children.

At paragraphs 208 to 212 in Bruni, Justice Quinn held that the mother’s entitlement to spousal support is to be reduced to merely $1 per month under s.33(10) of the FLA due to the severe relationship breakdown that she caused between her youngest child and the father, as follows:

“Section 33(10) does not restrict "a course of conduct" to pre-separation conduct. Also, "relationship," in my opinion, includes the relationship of spouses as co-parents. The relationship of parent and child is inextricably linked to that of husband and wife. Accordingly, I am permitted to consider the post-separation alienation that [the mother] created between [the child] and [the father] in determining the amount of spousal support to which [the mother] is entitled.

The parental alienation47 in this case reflects an intent by [the mother] to destroy the relationship between [the child] and [her father]; it is shocking conduct. It also amounts to a hideous repudiation of the relationship between [the mother] and [father] as co-parents of [the child]. The harm here probably is irreparable. Certainly, it is extremely serious at best. How could such conduct not satisfy the requirements of s. 33(10), stringent as they are?

While [the father’s] access-conduct has largely reflected nothing more than inept parenting, [the mother’s] parental-alienation behaviour has been evil. Is there a remedy?

Dollars cannot replace the father-daughter relationship that [the mother] has destroyed. However, in the circumstances of this case, justice has only a Hobson's choice. [The mother’s] alienation of [the child] and [her father] must be condemned and, an effective method of expressing that condemnation, is by way of a reduction in spousal support.
Accordingly, the spousal support to which [the mother] would otherwise be entitled shall be reduced to one dollar monthly.” (Emphasis added)

There’s a couple of points to take away from Justice Quinn’s reasoning. First of all, it is now clear that even post-separation conduct is relevant when considering whether s.33(10) may apply. Also, the “relationship” mentioned in s.33(10), as indicated by Justice Quinn, also includes the relationship between the parents and their children, because such a relationship is inextricably linked to the relationship between the spouses themselves.

Finally, Justice Quinn’s holding in Bruni sends a clear message that parental alienation can be considered spousal misconduct under s.33(10), and that such conduct will be condemned if supported by facts and evidence. In Bruni, the mother was owed hundreds of dollars per month for spousal support, and thousands of dollars for spousal support arrears, but her entitlement was reduced to only $1 per month under s.33(10) of the FLA due to her misconduct.

The outcome in Bruni tells us that parental alienation can be considered to be serious spousal misconduct in family law proceedings, which may attract sanctions from the court in the form of spousal support being reduced pursuant to s.33(10) of the FLA.

However, Justice Quinn was careful to note that the use of the remedy in s.33(10) of the FLA would be “rare,” so essentially, the facts of a case would have to be analogous to the severe parental alienation described in Bruni v. Bruni for s.33(10) to be applicable on those grounds. 

Ontario is, after all, a ‘no-fault’ divorce jurisdiction, so it would make sense that what’s essentially a fault-based legal analysis under s.33(10) of the FLA would only be applied successfully in rare cases.  

If you require assistance with a spousal support issue, or a case involving parental alienation in the Windsor region, then send me an e-mail at lutfallah@flbarrister.com in order to set-up a free initial 30-minute consultation. After hearing your story, I hope that I could provide you with assistance at a rate that is affordable. Nevertheless, if I am unable to help you, I will try to refer you to other family law lawyers in Windsor, as well as other post-relationship breakdown professionals who may be of assistance during these difficult times.

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