January 22, 2003
Abusive man sues wife for supportCristin Schmitz
For the Calgary Herald
A man who assaulted and terrorized his ex-wife can proceed to sue his victim for spousal support, an Ontario court has ruled in an extraordinary case that gives new meaning to "no-fault" divorce.
Superior Court Justice Margaret Scott of Oshawa, Ont., recently granted Elina Scavetta, 57, a final order against Tony Scavetta, 53, restraining him from "threatening, harassing or communicating" with, or going within 30 metres of her or their daughter.
The judge ruled, however, that Tony Scavetta's claim against Elina Scavetta for spousal support under the Divorce Act can move forward to trial, despite the crimes he committed against his former spouse over the past 15 years.
After living with him for eight years, Elina Scavetta divorced Tony in 1987 on the rarely used ground of cruelty.
Her ex-husband, who has been hospitalized "numerous" times with bipolar mood disorder and now lives on social assistance, has been convicted and imprisoned for assaulting and making death threats against Elina Scavetta and criminally harassing her by telephone from jail. His most recent conviction was in 1998.
The court's decision, reported next week in The Lawyers Weekly, also states Tony Scavetta "acknowledged that he sexually abused" their now-adult daughter when she was age four or five.
Under 1968 changes to the Divorce Act that created "no-fault" divorce, judges awarding spousal support are specifically barred from considering "any misconduct of a spouse in relation to the marriage."
"If I was a member of Parliament and had the power to vote on an amendment to the Divorce Act, I would vote, based on my personal views, to delete that subsection," remarked Toronto lawyer James Herbert, who represents Elina Scavetta.
While Scavetta's conduct doesn't bar him per se from spousal support, "I think that he is unlikely to be successful at trial," Herbert predicted.
He said his client remains fearful of her former husband and "strongly opposes" paying him any support. She is counter-suing for $2-million in damages, alleging assault and battery, intentional infliction of mental suffering and intimidation. She is also claiming back child support.
Ottawa lawyer Julien Payne, an authority on divorce law, said some American states have put "fault" back into their family law statutes. He argued the Canadian law should not be changed to once again permit divorce courts to take into account spousal misconduct.
"It's the old adage that hard cases make bad law, but I don't think you change the system because of that.
"The rationale for the reform in 1968 is we wanted to get away from warfare in the courts. You increase hostility when you have people flinging around allegations."
Spousal misconduct is legally irrelevant, but that doesn't mean individual judges ignore it, Payne added. "When you get into the minds of judges, they are ordinary people too, and image. . . is damned important, so I don't fear that you are going to have men coming out of the woodwork in situations where they have been inhumane to their wives and they are getting support."
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