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January 25, 2001

Blame it on the Divorce Act

Karen Selick
National Post

The case of Alexander v. Alexander exemplifies one of the most outrageous aspects of matrimonial law in Canada today. Christine Alexander was convicted of attempted murder after shooting her husband in the face. She's out of jail now, but she's back before the courts -- demanding that her victim pay her spousal support.

Mrs. Alexander is on welfare. David Alexander, despite the permanent serious injuries his former wife inflicted, has a job. Under the law of the land, these two facts might be all that matters.

Ontario's Family Law Act imposes an obligation on spouses to support the other spouse, "in accordance with need, to the extent that he or she is capable of doing so." The court is not allowed to consider the conduct of the spouses, with one exception: It can tinker with the amount if the conduct has been "so unconscionable as to constitute an obvious and gross repudiation of the relationship." However, the Divorce Act, which will apply to the Alexander case, is adamant: "The court shall not take into consideration any misconduct of a spouse." Period.

Homosexuals and lesbians take note. There may be good reason why you should prefer not to be married after all. If you are merely same-sex partners and your partner tries to murder you, you can argue that you should not have to reward him with spousal support. Get married and that argument is gone.

This language of the support law is eerily reminiscent of the Communist maxim, "From each according to his abilities, to each according to his needs." While I'm not suggesting this is a Communist plot, there is a common mindset underlying both Canadian law and Marxist doctrine: namely, that the state is entitled to override the agreements individuals make between themselves if doing so helps implement the state's current plan of social engineering.

In the case of spousal support, law-makers decided their overriding social goal is to give an income to ex-spouses (usually women), regardless of how they behaved during their marriages. Do Canadians share this philosophy? It's questionable.

The overwhelming majority of people subscribe to a reasonable set of expectations when entering marriage, even if they don't have a formal pre-nuptial contract spelling. Many of these expectations are encompassed by the standard marriage vows. At minimum, people expect their partner to be sexually faithful and sexually available, to refrain from acts of physical violence or psychological cruelty, to refrain from becoming drug or alcohol addicts, and to pull their weight in carrying out the responsibilities essential to family survival. If such was indeed their understanding, it seems perfectly just to say that the spouse who breaches the agreement should compensate the one who abided by it.

The adulterous husband, the wife-beater, the alcoholic who spends every paycheque on booze while his kids need new shoes, or the man who simply walks out one day, tired of his obligations, have no one to blame but themselves when their wives seek a divorce and support. These wives, assuming they've kept up their end of the bargain, deserve support. Their lives have been ruined through no fault of their own. If their husbands hadn't deceived them with false promises, they might have built happy lives with someone else.

On the other hand, if it is the wife who destroys her husband's chance at happiness through infidelity, violence, alcoholism or neglecting her responsibilities, then he is the one who is justified in terminating the marriage -- and she is the one who should compensate him, or at least not benefit from her own breach of agreement.

Most lawyers in this field can tell stories about spouses who have been awarded support despite their adultery, their desertion, their violence, their alcoholism, their mental cruelty. Any suggestion that this is unjust is typically brushed aside with the comment: "You wouldn't want to go back to the bad old days, would you?" This refers to the days when private investigators skulked around gathering evidence of adultery. In those days, a divorce court had discretion to award or deny support if it thought it was "fit and just to do so having regard to the conduct of the parties."

Well, there's this to be said for the so-called bad old days: The divorce rate was only a small fraction of what it is today. Maybe it's time we admitted that the prospect of having one's betrayals and flaws exposed in public might have dissuaded some people from indulging in them. Now that the law not only fails to penalize, but actually rewards spouses who commit adultery or acts of violence, we shouldn't be surprised that more people will respond to that incentive by engaging in adultery and violence.

Do we really want to teach our children that bad behaviour has no negative consequences, and that the innocent person injured by another's actions can expect nothing more from the justice system of this land than an order to pay, pay, pay?

Karen Selick is a lawyer in Belleville, Ont.

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