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Political Issues This forum is for discussing the political aspects of divorce: reform to divorce laws, men's rights, women's rights, injustices in the divorce system, etc.

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Old 06-21-2006, 09:16 AM
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Default The end of no-fault divorce?

Jeffrey sent me this interesting article re no-fault divorce.
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Old 06-21-2006, 10:25 AM
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The SCC made it's ruling and I am searching for the decision. Ahh found it...

http://www.scc-csc.gc.ca/judgments/2006scc025.htm

As I read the news reports, it would appear to be a wishy-washy decision in my view - on the one hand, misconduct cannot be a factor but on the other hand "emotional consequences of a spouse's misconduct can be weighed by the courts when judging spousal support payments."

My take on this is that the SCC is saying "case by case", so it doesn't really give a clear and concise direction to lower courts. I also think that if the SCC hasn't made a clear ruling out of fault, then the ambiguous nature of the decision will probably mean more litigation.

One thing for certain, the SCC didn't take the prospect of a tsunami of new litigation as an issue in their ruling and I suspect that fears of new litigation on retroactive spousal support will not be an issue for them either. That decision is due out this Fall I believe.

Last edited by Divorcemanagement; 06-21-2006 at 11:02 AM.
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Old 06-21-2006, 11:20 AM
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Sean,

I couldn't agree more! It should be interesting to see what kind of arguments will be made in determining the actual degree of "emotional consequences" as a result of the other party's "misconduct," and putting a value to it. I can only imagine how much more time and money will be spent on these issues.

Lindsay
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Old 06-21-2006, 11:43 AM
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Warning - controversial posting alert! Controversial posting alert!!

The encapsulated reader's digest version of this case is that the hubby had an affair that lead to the end of the marriage and the wife was so consumed by the circumstances surrounding the end of the marriage that she became disabled an unable to work as a result.

Call me crazy, but that's fault. It's either fault or it's no fault. (Actually family law is still largely about fault - all you have to do is read your ex-spouse's affidavits or pleadings one day, but I digress)

So if someone's life can be so consumed by the circumstances surrounding the end of their marriage that it creates a disability and are therefore entitled to ongoing spousal support, can someone become so consumed at the circumstances surrounding the end of their marriage that they cannot pay spousal support?

Can someone whose life has become so consumed by the circumstances surrounding the end of the marriage claim disability and no longer pay child support?

I believe that there will indeed be a tsunami of litigation over this - not just on spousal but also on child support. I think the SCC in it's ambiguous ruling has bascially done a Mackenzie King - "conscription if necessary, but not necessarily conscription" - in this case, "yeah, we have no fault divorce and the circumstances surrounding the end of the marriage should have no bearing, but the circumstances should have bearing on a case-by-case basis".

DISCLAIMER!

My views on this are not an endorsement of litigation or of anyone trying to seek or get out of their support obligations. They are just observations on what I believe to be a very bad ruling from the Supreme Court of Canada. I do not endorse anyone attempting to remove themselves from their support obligations nor do I endorse or condone or suggest same.
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Old 06-21-2006, 12:09 PM
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Excellent point Sean! I never even thought of that. Good thing you put in that alert.. I'm looking forward to other comments.
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Old 06-21-2006, 12:27 PM
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My wife and I are sickened by all this. And as Sean stated, what a wishy-washy non-decision. And as his lawyer stated, "Hey get on with your life. And if you have your support reduced or terminated, maybe that would be an INSENTIVE to moving on". Now she can sit at home, collect the chas and be 100% consumed by this.

It boggles my mind why anyone (men) marry in this country. And to any self-supporting, self-respecting woman, these kinds of judgements are a kick in the teeth. Get your MRS before your MSc.


Like I said, my wife and I have been venting about this all morning...

It simply blows my mind.
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Old 06-21-2006, 12:38 PM
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oh... and it is my understanding that even though he lsot HIS job he still must pay the full amount... yet her not working totally influences the amount (i.e. if she was working perhaps they would reduce it).

Wow... I'm shocked... yet another double standard.

Divorce in Canada: You have to live it to believe it.

On a related note. I guy a know... who recently retired and re-marrued for 15 years, had his ex-wife re-open spousal support after it had ended several years ago and she got more support for 4 years because she is... um... to tired and can't bring herself to work. So he has to go back to work at Home Depot or some other joe-job to pay her support. It gets better and better...
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Old 06-21-2006, 12:41 PM
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I think that if Mr. Leskun had perhaps engaged his former wife by offering to pay for a recovery program to help her deal with her disability, it might have actually changed things at the lower court level. So maybe a good rule of thumb if anyone is faced with something like this would be to offer to pay for their recovery - can't hurt. Shows that you aren't simply trying to get out of paying spousal support, etc.
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Old 06-21-2006, 10:08 PM
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I think its an interesting case, and no doubt will create a standard in the future.

lv
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Old 06-21-2006, 10:41 PM
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In reality, however wishy-washy the ruling was, Mr. Leskun still has the right to try and reduce/eliminate spousal support in the future.

Personally, I am disappointed with the ruling for the simple reason that it's still about fault. Justice Ian Binnie wrote: "Misconduct, as such, is off the table as a relevant consideration, there is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself". This ruling isn't showing the distinction between the two.

Very simply, in this case, how else did this poor woman allow herself to become so utterly embittered? Something had to cause it to occur and clearly the husband's affair was the catalyst.

I think this is all about fault, it has to be - there can be no other logical reason and as such, they probably should have struck down the no-fault provisions of the Divorce Act because the effect is going to be the same under this ruling. I see increased litigation because of this ruling and I also see non-spousal support arguments in the future where this ruling will be used as a case law reference.

If lower courts were looking for direction from the SCC, they surely don't have any under this ruling. This decision allows anyone to try and get their "pound of flesh" - it bugs me on a number of levels because as Divorce Coaches, my colleague and I see people struggle in coming to terms with the end of their marriages. In a country where few affordable programs and services exist to promote healing and rebuilding, this simply adds fuel to the fire.

Last edited by Divorcemanagement; 06-21-2006 at 10:43 PM.
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