In a case I covered a few weeks ago, the spouses were divorcing and were in the process of untangling their disputes relating to support and division of assets. As part of that litigation, the wife asked the court’s permission to amend her pleadings to add allegations that the husband, while still married, had frittered away some of their money by spending it on a 10-year adulterous affair, on ordering male and female escort services, and for membership fees to an adult fetish website.
The wife claimed this was relevant to how their Net Family Property should be divided; she wanted the court to impose an unequal split in her favour, to account for the money the husband allegedly frittered away on these activities.
In this context, the Court of Appeal quickly corralled the wife’s use of these accusations to finance-related issues, not bigger-picture ones impugning the husband’s character or hinting at scandal. More importantly, the court found it was not even relevant as a ground for divorce anymore. It stated:
Legislation, jurisprudence and the practice of family law have evolved over the last decades in an attempt to eradicate allegations of marital misconduct unrelated to financial consequences. Fault grounds for divorce are rarely used, having been replaced, in practice, with separation grounds. This approach recognizes that family litigation has the potential to leave families worse at the end of the case than they were at the beginning. It recognizes that resolution is the preferred outcome. Inflammatory allegations impede resolution.
The statements about the husband’s conduct are inflammatory. They are – in my view – there to provide a springboard to question the husband about his extra-marital conduct, not about his net family property. As [Justice] Blair J.A. said in Serra v. Serra, … it is the financial consequence of the conduct that is relevant, not the conduct itself. Extended questioning of the husband’s conduct … that is unrelated to financial consequences would be inflammatory, a nuisance and a waste of time.
In other words, the trend in Ontario Family Law is to confine the relevance of marital misconduct allegations to finance-related matters only – not to find “fault” or penalize a spouse for his or her conduct during the marriage. And, as the Appeal Court in Frick v. Frick seems to suggest, it is certainly not to be used as part of one spouse’s campaign to embarrass or impugn the character of the other spouse after-the-fact.
Do you agree with this decision? Do you think marital misconduct, adultery and similar scandal should have a diminished importance in the non-financial aspects of the divorce process? What are your thoughts?
For the full text of the decision, see:
Frick v. Frick, 2016 ONCA 799 (CanLII)
Serra v. Serra, 2009 ONCA 105 (CanLII)