• by David Tobin
Originally published in the OFLM 2023-10 edition
Overview
There exists an under-utilized provision of the Family Law Act that permits a party to seek a reduction of spousal support based on misconduct. This article explores this issue and reviews the important decisions that show when and how this legislation can and should be applied.
Introduction
It is well understood that conduct of a spouse cannot undercut their entitlement to spousal support: We know that infidelity will not cancel a stay-at-home parent’s right to compensatory spousal support. However, we often overlook Section 33(10) of the Family Law Act, which specifically allows a party to seek a reduction of the quantum of support – even to nil – in some circumstances where the conduct warrants it. To be clear, it is a rare case that will properly fall within the ambit of Section 33(10). (This brief article does not explore the different but related section in the Divorce Act or the similarly worded section in the Succession Law Reform Act.)
Section 33(10) of the FLA states that when making an order for support, the court may have regard to a spouse’s conduct in determining the amount. Specifically, this section states:
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.
Course of Conduct
The term “course of conduct” in this section has been interpreted, maybe obviously so, to mean that “something more than an isolated event is required” (Menegaldo v. Menegaldo, 2012 ONSC 2915 at para. 63). Therefore, a single event of bad behaviour should not be captured under section 33(10). Using this interpretation of the act, repeated infidelity may (and has) constituted a course of conduct, but attempted murder of a spouse or their family members will not. A curious result, but in a reported case where such facts presented themselves, the judge dismissed the respondent’s claim for spousal support because of a prior attempted murder conviction. The judge held that “spousal support is not appropriate in these particular circumstances” – he came to that conclusion without reference to section 33(10).
So Unconscionable
In Menegaldo, Justice Chappel refers to the case Morey v. Morey to articulate the test that an applicant must meet to show that the conduct was unconscionable. The considerations are reproduced below:
- The course of conduct must be exceptionally bad. In this regard, the court quoted the definition of "unconscionable conduct" in Black's Law Dictionary as being "conduct that is monstrously harsh and shocking to the conscience."
- 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 by any means.
- 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.
- The pleadings or subsequent written particulars should set out a summary of the conduct relied on to meet the test so that the Court can make a preliminary ruling based on the likelihood of the test being met. (Menegaldo v. Menegaldo, 2012 ONSC 2915 at para 63).
Given societal changes over the decades, it may not be helpful to look too far in the past at how cases have interpreted “unconscionable” or a “gross repudiation”. There are plenty of cases from the 90s which suggest that a recipient’s spousal support may be reduced because of their relationship with a new partner (note that it was not the reduction of the recipient’s need, it was the gross repudiation of relationship which resulted in the reduction of support). For example:
In Mills v. Mills (1992 CarswellOnt 289), Justice Granger held that “the relationship between Mrs. Mills and Skolly is so unconscionable as to constitute an obvious and gross repudiation of the relationship, and such conduct should be reflected in the amount of support which is awarded to Mrs. Mills.”
In Krigstin v. Krigstin (1992 CarswellOnt 309), Justice Macdonald found a recipient’s relationship with a friend/her accountant constituted an obvious and gross repudiation of the relationship between the recipient and her husband because the recipient and her ‘friend’ were not forthcoming “with respect to financial arrangements”.
It is doubtful that a post separation relationship could ground a claim in section 33(10) in 2023.
In the 2002 case of Belleville v. White (2002 CanLII 53252), the court found it appropriate to resort to section 33(10) of the FLA to deny a wife’s spousal support claim where 1) the wife assaulted the husband with a beer bottle; 2) the wife had “involvement in cybersex on the computer” (remember, it was 2002); 3) she unreasonably withheld access to the children; and 4) the wife called the husband’s employer and alleged he was defrauding them. Based on these facts, the judge found that the wife’s contact was “so unconscionable as to constitute an obvious and gross repudiation of the relationship and in these circumstances she should not receive spousal support”.
More recently, there has been a general reluctance from the court to reduce support under section 33(10). In McConnell v Finch (2022 ONSC 5271 at para. 31), the payor, an 88-year-old man allegedly with mental health issues, claimed that his spouse putting him in a long-term care facility was so unconscionable that it constituted an obvious and gross repudiation of the relationship. Justice Jain refused to make such a finding because she was “not satisfied with the evidence provided by the Respondent to make a finding that the Applicant repudiated the parties long-term common law relationship by placing him in a long-term care facility”.
Interestingly, a case in which a judge was willing to accede to a payor’s defence rooted in section 33(10) was one in which an applicant mother was seeking parental support from her adult daughter under section 32 of the Family Law Act. In L.F.D. v. X. (2016 ONCJ 878 at para. 404), the trial judge, Justice Gregson considered the mother’s request for support. Her Honor stated that:
…the Applicant's conduct is exceptionally bad. She alienated her daughter from her father, exposed her daughter to domestic violence during her childhood, has threatened her daughter, has had histrionic angry outbursts, has belittled her daughter, made false criminal allegations against her daughter and Mr. K., sued her daughter and her partner civilly, caused her daughter and her partners to pay large sums of legal fees, disrupted her daughter's marriage, threatened her career and slandered her character. The Respondent fears her mother. The Applicant's conduct destroyed the mother-daughter relationship. It is difficult to imagine circumstances which would more obviously and grossly repudiate a mother-daughter relationship. Frankly, the mother's abusive conduct towards her daughter over the years disentitles her to any parental support from her daughter. I can think of no clearer case based on this set of facts.
It may be that the policy behind parental support and spousal support are different enough that the court finds limiting parental support less repugnant that limiting a spouse’s entitlement.
Other Canadian jurisdictions have similar provisions in their provincial legislation. Newfoundland and Labrador’s Family Law Act has a section which reads substantially similar to section 33(10) of the Ontario Family Law Act. It states:
39(10) the obligation to provide support for a spouse or partner exists without regard to the conduct of either spouse or partner, 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.
There are cases under this act which found that a recipient’s infidelity, although unsettling, does not meet the threshold for an obvious and gross repudiation of the relationship. In SS v. BH (2019 NLSC 110 at para 175), after a finding that a recipient has at least three sexual/romantic relationships outside of the spousal relationship, Justice A. MacDonald stated, “infidelity by one is not sufficient to trigger section 39(10).”
Conclusion
In theory, spousal misconduct can be considered as a factor in decreasing or nullifying spousal support claims.
However, in practice, its not easy to be successful in raising such a defence, as the conduct must be exceptional, not occurring in isolation and the claimant must prove a level of blamelessness that may be hard to do.
Therefore, if your client wants you to pursue this claim, get out a dictionary and fully review with them the definitions of unconscionability and gross repudiation among other terms.
And yes, be ready to apply the definitions to the facts.