WHEN SHOULD “BAD BEHAVIOUR” BE REVEALED AT A DIVORCE TRIAL?
The applicable family law statutes make it clear that judges should not look into the parties’ conduct when making a decision. The family courts should not inquire into why a marriage failed and/or financially punish the party that failed to live up to his or her marriage vows.
In the case of Denis v. Ostrowalker, 2014 ONSC 578, however, the Honourable Mr. Justice Varpio had to consider some of the party’s conduct when making a decision. In that case, the Wife was an alcoholic prior to marriage. She significantly damaged matrimonial assets in drunken rages. By the time the marriage ended approximately 2 years later, neither party was employed but the Husband had slightly higher income. Justice Varpio did not order spousal support because:
- The marriage was of short duration;
- The Wife caused the Husband to lose employment opportunities;
- The Husband would have great difficulty making spousal support payments the Wife’s conduct made it very difficult to get a job;
- The Husband suffered from economic hardship due to the marriage;
- The Wife’s financial difficulties were not caused by the marriage;
- Spousal support would significantly impair the Husband’s goal of being self-sufficient but receipt of spousal support payments would not advance the Wife’s self-sufficiently it was likely that she would use the funds to buy more alcohol;
Second, the Honourable Mr. Justice Varpio held that giving the Wife a share of the net-family property would be unconscionable because:
- He paid the mortgage payments and incurred the debt to finance the home:
- The Wife would likely use the funds for alcohol;
- The Wife created a great deal of property destruction that more than offsets any equalization payment.
Justice Varpio admonished both parties for discussing, in detail, the other party’s infidelities and “party lifestyle”. Just as common sense, the courts will only consider bad acts or bad character only if it has direct relevance to the issues that can be adjudicated in a court of (care of children, financial consequences of marriage and its dissolution).