On a sunny June morning a unanimous panel of seven judges headed by Justice Ian Binnie dismissed Gary Leskun's appeal; nary a word of dissent was written.
The decision is unremarkable but for two factors. In fact, if it were not for the issues of misconduct and review, the orthodoxy of the factual circumstances raises the question of why it was even considered for appellate review.
Briefly, the parties in Leskun v. Leskun married in 1978 and separated in 1998. The wife, Sherry Jean Leskun, sacrificed and placed herself at a financial disadvantage to support her husband and family through his education and CGA exams. She also injured her back and her recovery was incomplete. She lost her job prior to marriage. At trial she rightly received inter alia spousal support.
Other relevant factors arose at trial: 1) Ms. Leskun was offered a severance package rather than an expected position by her employer; 2) The employer then offered to retrain her, however Mr. Leskun announced the separation before she'd decided what to do; 3) Ms. Leskun lost three relatives prior to trial; 4) Ms. Leskun had to contend with having a daughter who was a single mother, living at home and on welfare.
In March 2003, in what appears to have been a unilateral action by the husband, spousal support payments stopped. Mr. Leskun then, rather audaciously, brought an application to vary. He claimed to be unemployed, having few assets, no job, and no foreseeable job possibilities. Justice Nancy Morrison made short shrift of these submissions by finding that Mr. Leskun was self–employed with assets of approximately $1 million.
Justice Mary Southin, writing for the majority of the B.C. Court of Appeal, described the wife as being "bitter to the point of obsession with his misconduct and in consequence she has been unable to make a new life."
And so the obiter Trojan horse was launched.
Southin continued by stating that "the Divorce Act does not prevent consideration of a failure to achieve self sufficiency as being the result, at least in part [why be coy? — be bold . . . do not hold back!], of the emotional devastation caused by the other spouse's misconduct."
Justice Mary V. Newbury rejected this approach and chose to rely on a plain reading of the statute.
The Supreme Court should have rejected this appeal on the strict and tested cases of Moge and Bracklow, both of which would have been dispositive of the appeal. Why they chose to even hear the appeal is yet another mystery given that it would have had little or no precedential value elsewhere. They, instead, flung open the doors of the Trojan horse.
From their deliberations two principles arose:
1. The consequences themselves are not rendered irrelevant because of their genesis in the other spouse's misconduct. Such consequences would be highly relevant to determine the right of to support, its duration, and the amount.
2. Review orders under s. 15.2 of the Divorce Act have a useful but very limited role. A trial court should resist making temporary orders (or orders subject to review) under s. 15.2. Insofar as possible, courts should resolve the controversies before them and make an order that is permanent subject only to change under s. 17. If the s. 15.2 court considers it essential to identify an issue for future review the issue should be tightly delimited in the s. 15.2 order.
Regarding misconduct, the Supreme Court wishes lower court judges and counsel to ignore the genesis of the consequence. In other words, forget about the stone being thrown into the pond, it is an artifice of reality, and concentrate on the ripples. This, simply put, is not good law. It is intellectual fudging. The Divorce Act under s. 15.2(6) invites parties to "recognize economic disadvantages arising out of marriage" — hence, causation.
The court, however, changed the field of interpretation by not using the wording of causation. How could it? It would fly in the face of s. 15.2 (5) directing the court "not to take into account any misconduct of a spouse in relation to marriage."
Therefore, the language of discourse is changed by using the words "fault" and "blame" knowing full well that these are the bêtes noire of the Divorce Act. By framing the argument in the language of "fault" and "blame" they obviated the head-on collision between s. 15.2(6) and causation.
However, by using Southin's reasoning, the Court appears to have accepted the allocation of causation "at least in part" based on the following facts: the impact of Mr. Leskun's separation announcement while Ms. Leskun was deciding between severance and retraining; Ms. Leskun's loss of three family members; and Ms. Leskun having to cope with her daughter's circumstances, etc.
The SCC muddied the waters further by stating, "whether or not the claimed inability or incapacity of the claimant spouse is credible is for the trial judge to determine." A determination that may be reached in the absence of medical evidence, for in the words of the court: "it is not essential."
How does counsel test credibility? It is by rigorous and thorough cross-examinations, where we explore the issues of "causation." No doubt, much to the chagrin of the court, "blame" will become an issue as it will not escape counsel to have all factors weighed by the trier of fact on such an application.
The second issue is that of review. After a generation of the Charter, to voluntarily and willingly curtail judges and counsel from addressing the self sufficiency of educated and working people by not having spouses scrutinized under the assumption that they are or will become self sufficient members of our society, clearly shows that our court has lost its way in articulating concepts of responsibility which they started in the triptych of cases of Walsh, Miglin, and Hartshorne.
A society cannot continue under the strain of avoiding responsibility. It becomes a danger to the very polity that they are trying to protect. The review mechanism is seen as a vexatious procedure by the court. In some cases it certainly is, and our courts have myriad ways to respond, including cost orders.
Limiting the ability of a review is a misguided solution by the court, for it presumes that every judge sitting is a Delphic Oracle capable of discerning and delimiting such reviews. Not so . . . respectfully.
Leskun ideally follows in that vein of corrective decisions concerning long-standing marriages, which decisions were rendered in the 1980s and 1990s as trying to correct the perceived imbalances from these relationships. Leskun, however, should not be applied or be seen as a useful precedent for modern-day marriages.
The decision to continue Ms. Leskun's support can be rationalized, and is indeed on sure footing, when interpreted in light of the more traditional approaches taken in Moge and Bracklow. The SCC's foray into the area of misconduct and review based on these facts is unsure and awkward and its ratios suspect.
Bohdan A. Shulakewych is a barrister practising in the city of Toronto and would like to thank his associate Angelina Macri for her assistance in the preparation of this commentary. He can be reached at firstname.lastname@example.org