Family lawyers are no strangers to rancorous clients, aggrieved at the slights and betrayals (sometimes real, sometimes imaginary) visited upon them by their former spouses. Often these clients will try to bring legal tools to bear on what are fundamentally non-legal problems. It is both hard and imperative to convince these clients that, for better or worse, a spouse’s personal failings simply have no role to bear on resolving family law cases.
Mr. Justice Crerar recently had an opportunity to extensively comment on the relevance (or lack thereof) of a spouse’s conduct in T.C. v. L.A., 2020 BCSC 1315. The parties in this case had two children, but parenting was not at issue: the only disagreements were financial. The father said, however, that the judge should consider the mother’s conduct towards the end of the relationship in making decisions about spousal support. In order to establish his case, he wanted the court to allow the parties’ seventeen year-old daughter to testify against her own mother.
What did the mother do that the father felt was so bad? At the end of the parties’ relationship, the parties had agreed to “nest” with the children. This means that the children would remain in the family home, with the two parents taking turns parenting the children. So in one week the father would be in the family home with the children and the mother would stay elsewhere, and in the next week the positions would reverse. These “nesting” arrangements can be effective when parents get along: they can minimize the disruption on children who do not have to become accustomed to a new home or routine. But they require a large degree of discipline and consideration as between the parents, which is a lot to ask of people going through the end of a relationship.
In T.C. the nesting arrangement ultimately failed. According to the father, the mother brought her new boyfriend into the family home, intentionally causing emotional distress on the part of the father and the children. The father also said the mother had failed to adequately support the parties’ daughter after she had witnessed a suicide attempt, and had later brought a second boyfriend into the house, triggering a fight between mother and daughter in which the mother slapped the daughter.
The Court was prepared to accept the father’s allegations for the purposes of making an evidentiary decision: assuming these facts were all true, should this alleged “bad conduct” play into the Court’s decision respecting spousal support?
The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), (which governs married couples) and the Family Law Act, S.B.C. 2011, c. 25 (which can apply to both married and unmarried couples) both permit the court to make orders for spousal support at the end of a relationship. Both acts also specify that misconduct of a spouse must not be considered when making an order for spousal support, except where the conduct arbitrarily or unreasonably “causes, prolongs or aggravates the need for spousal support”(on the part of the receiving spouse) or “affects the ability to provide spousal support” (on the part of the paying spouse).
Justice Crerar considered two cases in which the court took into account bad conduct in refusing to order spousal support. In the first case, a wife had tried (but failed) to shoot her husband twice in the head. In the second case, a mother had over a number of years contemptuously attempted to alienate a child from the father. In both cases, the “outrageous conduct of the recipient spouse was so morally repugnant and unconscionable as to constitute a gross repudiation of the marriage, and thus disentitled the spouse who would otherwise receive spousal support from receiving that support”: T.C. at para. 22.
The conduct in T.C. v. L.A. fell far short of attempted murder or years of contempt of court, and so Justice Crerar was not prepared to consider it in deciding whether to order spousal support. He noted the corrosive effects investigations into conduct would have on already difficult family law matters:
“[29] Such an investigation of spousal misconduct would greatly lengthen trials. It would hinder resolution. It would also make trials a public airing of marital grievances. These marital grievances will often be inflammatory. Indeed, in certain circumstances, the threat to air spousal misconduct in the public forum of a trial could be used as litigation blackmail.”
Thankfully, since the mother’s conduct did not rise anywhere near the level that would have justified the court hearing evidence of it, the court was spared the spectacle of a seventeen-year old girl testifying in open court against her own mother.
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