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Hi, my name is Daphna Schwartz and I am a lawyer with the Feldstein Family Law Group. Today, I will be talking to you about the relationship between fault and spousal support awards in a divorce.

Over the years, clients have often asked me the same question – will I have to pay spousal support if my spouse is the one who is at fault for the divorce?

The short answer is that in most cases, a person’s conduct during marriage will not be considered by a court when it comes to determining spousal support.

In large part, this is because Canadians enjoy a no-fault based divorce system. This means that in order to obtain a divorce in Canada, you do not have to show wrongdoing by either the husband or the wife during the marriage.

In the same way, a husband’s or a wife’s conduct during the marriage will generally not have an impact on whether they are awarded spousal support. Instead, the court will consider a wide variety of factors when determining a spousal support award, including agreements between the parties, the length of the marriage, the means of the payor and the needs of the spouse who seeks support.

While exceptions to this general rule exist, they are few and far in between. More importantly, it is extremely difficult to prove to a court that the amount of spousal support awarded should be increased or decreased based on marital conduct.

For example, section 33(10) of Ontario’s Family Law Act provides that in determining the amount of support a court may consider “a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship”. So, what does this mean in plain English?

First, it means that the person’s conduct must be exceptionally bad. It is important to note that adultery does not qualify under the court’s definition of “exceptionally bad”.

Second, it means that the conduct could have been reasonably expected to destroy the marriage.

Third, it means the other spouse must have been innocent or blameless with respect to the conduct.

Finally, it means that the person making a claim under this section may have to pay costs if the court finds that the issue was frivolous.

Because of these four conditions, this section of the Family Law Act is rarely invoked due to the high threshold that must be met to satisfy the court.

In 2006, the Supreme Court of Canada upheld a generous award of spousal support to a wife on the basis that her husband’s misconduct had emotionally devastated her and prevented her from returning to work. However, the court took great pains to emphasize that it was the impact of the husband’s conduct, and not the conduct itself, that contributed to the award. In addition, the court indicated that the effect of the husband’s misconduct was only one of several factors it considered in determining spousal support, including a back injury that had left the wife unable to work.

While the determination of entitlement and the amount of spousal support awards varies from case to case, one thing is certain – in Ontario, it is very difficult to prove that a person should be awarded less spousal support than they would otherwise be entitled to, due to their conduct or fault during the marriage.

If you would like to learn more about spousal support, you can visit our Feldstein Family Law Group website.

If you need legal advice about your own situation, please call us at 905-581-7222 for a consultation.

Thanks for watching.