Leskun v. Leskun (2006), 226 B.C.A.C. 1 (SCC);
373 W.A.C. 1
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2006] B.C.A.C. TBEd. JN.044
Gary Leskun (appellant) v. Sherry Jean Leskun (respondent)
(30548; 2006 SCC 25; 2006 CSC 25)
Indexed As: Leskun v. Leskun
Supreme Court of Canada
McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish and Charron, JJ.
June 21, 2006.
Summary:
Spouses married in 1978, separated in 1998 and divorced in 1999. The wife worked in a bank throughout the marriage, financing the husband’s higher education through her earnings and the cashing in of her RRSP’s and her pension contributions. The husband left the wife upon being transferred to Chicago and married the woman he had been committing adultery with. The wife had injured her back in 1995. Her position at the bank was terminated and her disability benefits terminated in 1999. The wife lived solely on interim spousal support of $2,250 per month. The wife remained unemployed, partly because she was emotionally devastated by her husband’s leaving her and partly because of her age, narrow employment history and medical concerns. A trial court awarded the wife spousal support of $2,250 per month subject to review as to entitlement and quantum. The wife had been disadvantaged by the marriage and her ability to become self-sufficient was in doubt. The husband applied to discontinue support on the basis that he was unemployed and in financial difficulty.
The British Columbia Supreme Court, in a judgment reported [2000] B.C.T.C. Uned. 662, dismissed the application. The husband was not forthright in his financial disclosure. He had significant earning capacity and capital of approximately $1 million Canadian. The wife was not yet self-sufficient and remained in need of support. The court ordered that spousal support of $2,250 per month continue. The husband appealed.
The British Columbia Court of Appeal, in a judgment reported [2004] B.C.A.C. Uned. 145, dismissed the appeal. The judge did not err in finding that the wife was not yet self-sufficient and that the husband had the ability to pay, including using capital assets to pay support. Southin, J.A. (Hall, J.A., concurring), stated that the Divorce Act did not prevent the court from considering that the failure to achieve self-sufficiency resulted “at least in part from the emotional devastation of misconduct by the other spouse”. Newbury, J.A., disagreeing on this point, held that spousal misconduct was irrelevant when considering the issue of support. The husband appealed, submitting that (1) spousal misconduct should not have been considered in determining entitlement to spousal support; (2) meaningful effect was not given to the wife’s obligation to become self-sufficient; (3) the husband’s capital should not have been considered in determining his ability to pay; and (4) the application for a review of support (Divorce Act, s. 15.2) was improperly dealt with as a variation application (s. 17), improperly placing an onus on the husband to establish changed circumstances.
The Supreme Court of Canada dismissed the appeal. Although the needs and circumstances of a spouse were relevant to a failure to achieve self-sufficiency, the attribution of fault to the other spouse was irrelevant. Although spousal misconduct was irrelevant, the consequences of spousal misconduct were not. Notwithstanding the error, there was no error in affirming the need for support based on the relevant factors, including the wife’s age, narrow job experience and her health concerns. The husband’s capital assets were properly considered in determining his financial ability to pay ongoing support. Whether the husband’s application was treated as a review or a variation application, it made no difference, as his application failed on the facts, not on the issue of onus.
Family Law – Topic 3997
Divorce – Corollary relief – General – Economic self-sufficiency – Section 15.2(5) of the Divorce Act provided that in making an order for spousal support “the court shall not take into consideration any misconduct of a spouse in relation to the marriage” – The Supreme Court of Canada held that the attribution of fault between spouses was irrelevant to the issue of spousal support – However, there was a distinction between the emotional consequences of a spouse’s misconduct and the misconduct itself – Section 15.2(4) provided that the court was to consider “the condition, means, needs and other circumstances of each spouse” – The court stated that “certainly, the ‘condition … needs and other circumstances’ includes the capacity of the respondent to be self-sufficient for whatever reason” – If, for example, a spouse suffered depression so serious as to render her unemployable as a result of spousal misconduct, the consequences of the spousal misconduct were relevant to the factors to be considered in determining the right to support, its duration and quantum – See paragraphs 16 to 24.
Family Law – Topic 3997
Divorce – Corollary relief – General – Economic self-sufficiency – Section 15.2(6)(d) of the Divorce Act provided that one of the objectives of spousal support was to “in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable time” – The Supreme Court of Canada held that the objective was not a duty, stating that “failure to achieve self-sufficiency is not breach of ‘a duty’ and is simply one factor amongst others to be taken into account” – See paragraphs 25 to 27.
Family Law – Topic 4018.1
Divorce – Corollary relief – Maintenance awards – Review of maintenance v. variation of maintenance – A husband applied for a review of his spousal support obligation, as permitted by the court order for support – The husband submitted that both the trial court and appeal court erred in treating his application as a variation application (Divorce Act, s. 17) rather than a review (s. 15.2), improperly placing an onus on him to establish changed circumstances – The Supreme Court of Canada distinguished between a variation and a review – The court stated that “review orders, where justified by genuine and material uncertainty at the time of the original trial, permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances. … In my view, whether the application is treated as brought under s. 15.2 (more favourable to the [husband]) or under s. 17 (less favourable) it makes no difference to the outcome. His application does not rise or fall on the issue of onus. It fails on the facts.” – See paragraphs 35 to 42.
Family Law – Topic 4021
Divorce – Corollary relief – Maintenance awards – Considerations – General – [See first
Family Law – Topic 3997
].
Family Law – Topic 4021.4
Divorce – Corollary relief – Maintenance awards – Considerations – Ability to pay (incl. potential to earn income and calculation of income) – The Supreme Court of Canada rejected the submission that a spouse’s capital assets should not be considered in determining the ability to pay spousal support – The traditional understanding of “means” included all pecuniary resources, including capital assets “that have not been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown” – See paragraphs 29 to 34.
Family Law – Topic 4022.1
Divorce – Corollary relief – Maintenance awards – To spouse – Extent of obligation -[See first
Family Law – Topic 3997
].
Family Law – Topic 4022.1
Divorce – Corollary relief – Maintenance awards – To spouse – Extent of obligation – Spouses married in 1978, separated in 1998 and divorced in 1999 – The wife worked in a bank throughout the marriage, financing the husband’s higher education through her earnings and the cashing in of her RRSP’s and her pension contributions – The husband left the wife upon being transferred to Chicago and married the woman he had committed adultery with – The wife injured her back in 1995 – Her position at the bank was terminated and her disability benefits ended in 1999 – Her only income was spousal support of $2,250 per month – The wife remained unemployed, partly because she was emotionally devastated by her husband’s leaving her and partly because of her age, narrow employment history and medical concerns – The trial court dismissed the husband’s review application – The husband was not forthright in his financial disclosure – He had significant earning capacity and capital of approximately $1 million Canadian – The wife was not yet self-sufficient and remained in need of support – The Supreme Court of Canada affirmed the appeal court’s dismissal of the husband’s appeal – Notwithstanding the Court of Appeal’s error in stating that the husband’s misconduct was relevant to the wife’s self-sufficiency, there was no error in affirming the need for support based on the relevant factors, including the wife’s need based on her age, narrow job experience and her health concerns.
Family Law – Topic 4028
Divorce – Corollary relief – Maintenance awards – Effect of net worth – [See
Family Law – Topic 4021.4
].
Cases Noticed:
Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 26].
Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 26].
Strang v. Strang, [1992] 2 S.C.R. 112; 137 N.R. 203; 125 A.R. 331; 14 W.A.C. 331, refd to. [para. 29].
Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 30].
Cunha v. Cunha (1994), 99 B.C.L.R.(2d) 93 (S.C.), refd to. [para. 34].
Choquette v. Choquette, [1998] O.A.C. Uned. 330; 39 R.F.L.(4th) 384 (C.A.), refd to. [para. 37].
Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 37].
Schmidt v. Schmidt (1999), 132 B.C.A.C. 36; 215 W.A.C. 36; 71 B.C.L.R.(3d) 113 (C.A.), refd to. [para. 38].
Keller v. Black, [2000] O.T.C. 845 (Sup. Ct.), refd to. [para. 39].
Statutes Noticed:
Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15.2(4) [para. 22]; sect. 15.2(6) [para. 18]; sect. 17(4.1) [para. 35].
Authors and Works Noticed:
Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (2001), p. 195 [para. 29].
Counsel:
Lorne N. MacLean, Alison M. Ouellet, Shawna L. Specht and Shelagh M. Kinney, for the appellant;
Sherry Jean Leskun, on her own behalf;
Colin A. Millar, amicus curiae.
Solicitors of Record:
MacLean Family Law Group, Vancouver, B.C., for the appellant;
Richards Buell Sutton, Vancouver, B.C., appointed by the court as amicus curiae.
This appeal was heard on Februrary 15, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish and Charron, JJ., of the Supreme Court of Canada.
On June 21, 2006, Binnie, J., delivered the following judgment in both official languages for the Court.
