Written on behalf of Shariff & Associates
Following the breakdown of a relationship, one spouse may have an obligation to provide financial support to the other spouse when a relationship ends. In weighing entitlement to spousal support, the trend has been moving away from evaluating the parties’ behaviour, as fault has been minimized in consideration of support. However, exceptionally unconscionable conduct can still be relevant when deciding on a quantum of support a spouse should receive. Importantly, cases have not restricted the provision only to pre-separation conduct.
Conduct can be Considered in Setting Support
Section 33(10) of the Family Law Act (the “Act”) states that “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.”
Generally, a spouse’s conduct is not relevant to the issue of spousal support, but as the Act makes clear, there is a narrow window in which it remains relevant.
In the 1978 decision of Morey v. Morey, Justice Nasmith noted that the obligation for support exists independent of spousal conduct, though courts retain some discretion to evaluate conduct, which could result in support being reduced. In that case, the judge determined that only exceptional conduct would be relevant. The Court proposed the following tes:
- The conduct must be exceptionally bad;
- The conduct must be such as could reasonably be expected to destroy the relationship;
- The conduct must have persisted in the face of innocence and virtual blamelessness on the part of the other spouse;
- The commission of a so-called matrimonial offence is not necessarily sufficient;
- 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; and
- The pleadings should set out a summary of conduct that meets the test so the court can make a preliminary ruling.
Conduct Must be a Repudiation of the Relationship
The case of McConnell v. Finch dealt with an application for spousal support. The wife and respondent were 87 and 88 years old, respectively. In 2021, there was an interim order for the respondent to pay spousal support of $1,237 per month. However, the husband disagreed with the order and alleged that the wife was not entitled to support at all. He argued that in the alternative, if the wife was eligible for support, he claimed that the amount ordered was too much as it left the wife having more income than he did.
According to the husband, the relationship ended when he fell and broke his hip, requiring a hospital stay. He said that the wife did not allow him to return to the apartment and that he was “kicked out.” He also suggested that the wife misled third party caregivers by telling them that he had dementia and lacked capacity, and further, that the wife used a Power of Attorney to have him reside in a long-term care facility. The husband provided letters from his family physician that confirmed he was not in cognitive decline to support his claims. The respondent pointed to section 33(10) of the Act, suggesting the wife’s conduct was so unconscionable it constituted a gross repudiation of the relationship and should disentitle her from spousal support.
The wife was satisfied with the amount of spousal support provided by the interim order. She also had a different version of events and denied repudiating the relationship as she claimed she never wanted to separate. Instead, she claimed that after her husband was discharged from the hospital it was recommended that he move into a long-term care facility. The hospital discharge report cited his “advancing dementia” and noted the respondent’s desire to return home, although that was deemed an unsafe decision.
According to the wife, the husband was moved to the care facility because she was unable to care for him due to his medical needs and her age. The husband’s adult daughter allegedly cut the wife off from the husband and either she or the husband removed the wife from benefits which caused financial hardship. The wife then considered herself separated and brought the application for spousal support.
Court Declines to Reduce Support Based on Conduct
The Court first noted that each spouse has an obligation to support the other spouse under section 30 of the Act “in accordance with need, to the extent that he or she is capable of doing so.” The parties in this case were both elderly and could not work. When they cohabited, they combined their incomes and shared resources.
The Court found that the wife was entitled to support. Turning to section 33(10) of the Act, Justice Jain explained that the conduct of either spouse can be relevant to quantum but not entitlement to support. However, “conduct is only relevant where it is “so unconscionable as to constitute an obvious and gross repudiation of the relationship.” Therefore, the husband had to establish that the wife’s actions in placing him in a long-term care facility rose to a level of unconscionability that constituted “an obvious and gross repudiation of the relationship.”
The judge accepted the wife’s explanation as to why the respondent was placed into care – namely that he required physical care which she was unable to provide safely. Despite claims of being“forced” into care, the judge noted that the husband remained in long term care even after his daughter took over under a power of attorney. The husband had not returned home because nobody could provide the care he needed and not due to the wife’s conduct.
Post-Separation Conduct May be Considered
In Bruni v. Bruni, the Court looked at section 33(1) of the Act and found that the phrase “course of conduct” requires more than an isolated incident. Looking at the requirements, the Court explained that “it will be a rare case that passes the test.” However, in this instance, the Court decided that circumstances were not limited to pre-separation conflict and could include the relationship of spouses as co-parents.
In this case, post-separation alienation which one parent created was conduct which could be weighed in determining the amount of spousal support the other parent should be entitled to. The judge found that there was intent to destroy the parent-child relationship which was shocking conduct and amounted “to a hideous repudiation of the relationship” as co-parents. A reduction of spousal support was one way of condemning the conduct.
The Family and Divorce Lawyers at Shariff & Associates in Markham-Stouffville Provide Comprehensive Advice on Spousal Support Issues
The trusted family lawyers at Shariff & Associates work closely with clients to develop the best course of action to move forward. Whether you are dealing with a separation, divorce, spousal support claim or a post-divorce modification, our compassionate family law team is ready to advocate on your behalf. If you have questions about your spousal support claim, reach out to us online or call our office at 905-591-4545 to learn how we can help.