OTTAWA (CP) — Can a divorce from a cheating spouse be so debilitating that it renders a person unable to work, even years after the infidelity?
The Supreme Court of Canada is set to rule Wednesday in a spousal support case that could reintroduce the concept of fault into the federal Divorce Act.
Gary Leskun, who abruptly left his wife of 20 years to marry another woman in 1998, is appealing lower court rulings that maintained Sherry Leskun’s monthly spousal support on the grounds that the woman, now 59, is too bitter to work.
“Her life is this litigation,” the B.C. Court of Appeal ruled in 2004 in maintaining the $2,250 monthly spousal support.
Sherry Leskun, wrote the court, is “bitter to the point of obsession with his misconduct and in consequence has been unable to make a new life.”
Yet the Divorce Act states that courts “shall not take into consideration any misconduct of a spouse in relation to the marriage.”
Allowing such a ruling to stand, Gary Leskun argued in his appeal to the Supreme Court in February, would reward his ex-wife’s “scorched earth policy.” And it would not only be “opening the floodgates, but will create a legal tsunami” of review applications from embittered partners.
The Supreme Court’s decision would certainly appear to have potentially far-reaching implications, given the tawdry commonality of the Leskun divorce case details.
Gary and Sherry Leskun had been married 20 years when he accepted a job offer in Chicago in April 1998. That September, he returned to Vancouver and informed Sherry he’d met another woman, was going to marry her and wanted a divorce.
The same year, Sherry had quit her bank job and applied unsuccessfully for long-term disability benefits for a back problem.
The Vancouver couple had one daughter, and Gary had helped raise two children of Sherry’s from a previous relationship. Sherry worked at a bank and helped support her husband, 10 years her junior, while he improved his career credentials to become a certified general accountant.
She cashed in RRSPs and early pension contributions to get the family through.
When the divorce was granted in 1999, Sherry received $2,250 a month in support and half the family assets.
Gary Leskun attempted to have the payments stopped in 2003 on the grounds that he’d lost his job, although at that point he had assets worth $1 million.
He lost, and appealed.
In writing the unanimous B.C. Appeal Court decision, Justice Mary Southin alluded directly to the no-fault provision in the Divorce Act:
“Parliament, in its wisdom or lack thereof, has said the court must give no weight to what the husband did here — that is, by carrying on behind his wife’s back when it suited him, walking out on his wife of 20 years who had borne him a child and contributed substantially to his financial well-being.”
Nonetheless, Southin found in Sherry Leskun’s favour, saying her inability to provide for herself was “a failure resulting at least in part from the emotional devastation of misconduct by the other spouse.”
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