Can bad behavior affect my spousal support?

The short answer to this is – Yes! However, it is extremely rare for spousal support to be reduced as a result of bad behavior.

The recent case of McConnell v Finch 2022 ONSC 5271 deals with a relatively obscure section 33(10) of the Family Law Act that allows for a judge to reduce the amount of spousal support (to potentially zero dollars) where a spouse’s conduct is “so unconscionable as to constitute an obvious and gross repudiation of the relationship.”  In this case, the wife used her powers as the husband’s attorney for personal care and property, to place him in a long-term care facility.  The husband brought a motion for summary judgment to terminate spousal support based, in part, on his claim that she “grossly repudiated” their common law relationship by her conduct when she placed him in a long-term care facility.

Although the judge in this case did not find fault with the wife’s conduct and did not apply section 33(10) of the Family Law Act, it is an interesting section of the Family Law Act.  This is because, as the Honourable Justice Marvin Kurz puts it in G(O) v (G(R) 2017 ONCJ 153 at paragraph 91:

The exercise [of analyzing the behavior of the parties towards each other in order to see whether the conduct of one disentitled them to support from the other] goes against the entire thrust of family law for more than the past three decades, in which fault has moved far into the background in considering entitlement to support.

An excellent summary of the legal principles as they relate to this area of law can be found in Menegaldo v Menegaldo 2012 ONSC 2915.  In this case, the Honourable Justice Chappel found that parental alienation in isolation, cannot be considered in an analysis under section 33(10) because the misconduct must have consequences that impact on the parties’ ability to support themselves financially.

On a final note, the case of Sivarajah v Muralidaran 2016 ONSC 5381, is interesting because in this case the course of conduct of the wife was relevant in the determination of spousal support, even though the motion was brought under the Divorce Act and not the section 33(10) of the Family Law Act.  In this case, the Honourable Justice Kiteley took into consideration the very serious nature of the mother’s conduct, and the economic circumstances that would arise when the father moved to Australia.

Our experienced lawyers can assist you with any questions you may have about any spousal support owing or owed to you.  Contact us now to schedule a free consultation.

This article is authored by Erika MacLeod, an experienced Family Lawyer who is ready to assist you with any question you may have regarding your separation.

DISCLAIMER: articles provided on this website are intended to provide general information but do not constitute legal advice. We suggest that you consult one of our lawyers if you have a specific legal question or issue.