Affairs, Adultery & Spying

Can a “Misbehaving“ Spouse Lose Out on Support?

Written by Russell Alexander / (905) 655-6335

Can a “Misbehaving“ Spouse Lose Out on Support?

In a recent Blog, we commented on the decision in Boddington v. Boddington, which was effectively a case study on how not to ask a court for ongoing spousal support from your Ex, in situations where you have moved on to a relationship with a new person.
In reading the case, we were struck by an interesting little comment by the judge – and one that is probably wrong in law. It relates to the question of whether a former spouse’s “misconduct” – in this case, an extramarital affair – essentially disentitles him or her to spousal support after-the-fact.

As readers will recall, the Boddington case involved a woman who was asking for ongoing spousal support from her former husband, despite the fact that she was now living with a new man. Even though she had had an affair with the man prior to marriage, she claimed that they were now “just friends” and had no sexual relationship – she was just living with him to help him out financially, she claimed. After rejecting the woman’s dishonest assertions as to the platonic, allegedly non-spousal relationship with the new partner, the court dismissing her claims for spousal support for other reasons.

In doing so, the court made a comment (at para. 11) of the judgment to the effect that the woman’s conduct was relevant to support because it amounted to an obvious and gross “repudiation of the relationship”. The judge’s exact words were these:

Of course, the law is clear that a payee is not disentitled to support merely because she has formed a new relationship. And the conduct of the parties is only relevant if it is so unconscionable as to constitute an obvious and gross repudiation of the relationship. While I would find the [wife’s] conduct in this case sufficient to meet that test, I do not have to go that far.

As it happens – and despite the judge’s hints to the contrary in Boddington – this is not the state of Family Law in Ontario.

In fact, courts will generally not characterize adulterous affairs, lying and similar dishonesty as an “obvious and gross repudiation of the relationship” to the point that a spouse becomes disentitled to support on that basis alone. Rather, spousal support entitlement generally arises as a consequence of the marriage and its breakdown, and (as I have discussed in many prior Blogs is calculated based on numerous factors, but misconduct is not one of them. In other words, an otherwise-deserving spouse does not become “disentitled” to financial support merely because they may have behaved immorally or unethically during the marriage.

For the full text of the decision, see:

Boddington v. Boddington, 2003 CarswellOnt 3914, [2003] O.J. No. 4008 (S.C.J.)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.