Courts should uphold the law, not fashionable opinion

Brigitte Pellerin


Tuesday June 27, 2006


The Ottawa Citizen



Is it me, or are we living in a world where bien-pensant opinions matter more than clearly-written laws? Take last week’s Supreme Court unanimous Leskun decision on marital misconduct: I dare you to look me in the eye and claim it was made with respect to the law as enacted by Parliament and not what particular result the justices thought would make them look better in fashionable salons. If the Supremes were trying to make me despise the justice system, they would not behave any differently.

You saw the ruling handed down Wednesday, in which the Court openly defied the Divorce Act so as to ensure Ms. Leskun – who is sympathetically described as being the victim of unparalleled “emotional devastation” as a result of her wretched swine of a husband (I’m paraphrasing, but only just a bit) leaving her for a younger woman – can keep receiving support payments from her ex for however long she fails to become economically self-supporting. Which of course no bien-pensant feminist (but I repeat myself) would expect her to do since she is suffering so because of him. I mean, who expects a woman to shrug off a bad marriage and get her act together in relatively short order? Maybe in Victorian times. But in the 21st century? Post-liberation? As if.

I’m not about to defend a guy who cheated on his wife and then left her for another woman. If it happened to me I’d be furious, too. Perhaps vengeful as well. But then, I’m old-fashioned; I never liked no-fault divorce because it shouldn’t be easy to get out of a marriage. (I don’t like pre-nups either, because planning for a divorce even before pronouncing the vows is creepy.)

There is a difference between shacking up and getting married. One is much more of a commitment than the other. That’s why it took me so long to get married – Mr. Right was hard to find, and I was not going to pledge my troth to Mr. You-Might-Do. If you shack up with Mr. You-Might-Do, you refrain from producing children so when the relationship fizzles out you can move on relatively easily. Sorting out CDs is a pain, but it’s nothing compared to sorting out visitation rights and support payments.

If I ran the world and the adulterous Mr. Leskun insisted on leaving his wife for another woman, you bet he’d continue supporting Ms. Leskun. Wanna cheat, buddy? Then be prepared to pay. But if the cheater was the missus she wouldn’t be entitled to a single penny. And if you wanted to leave your spouse because of emotional or any other kind of abuse, you’d have to demonstrate it. In short, show serious fault or work out your differences like grown-ups. Marriage shouldn’t be a temporary thing you get to enjoy until something better comes along.

The folks who do run the world, at least when it comes to Canadian divorce laws, couldn’t disagree with me more. They insist on making it easy to get out of a marriage for any reason including boredom. Forget fault or misconduct. The law is absolutely clear that in determining support payments, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”. The legislation also stipulates that, as the Supreme Court explains, “misconduct should not creep back into the court’s deliberation as a relevant ‘condition’ or ‘other circumstance’” when setting or modifying support.

If you are able to read simple English, the law says Mr. Leskun should not have to pay more in support payments than any other ex-husband even if we think he behaved like a jerk. If we’re unhappy with that, we should pressure legislators to ditch no-fault divorce. Instead the Supreme Court justices conjured up a bogus distinction “between the emotional consequences of misconduct and the misconduct itself” out of thin air. Could it be because the prevalent mood in family law overwhelmingly – and more often than not unfairly – favours women, who get to do whatever they want while the guys are made to pay through the teeth for every single bad thing they do or don’t do?

In a scathing editorial on the “Court’s faulty divorce ruling,” the Globe and Mail made the surprising side comment that “This is not a feminist issue; it could easily have been a man on the other side.” Riiiight. And there’s no way the same Supreme Court would, the very next day, rule that in sentencing juveniles lower-court judges can’t consider deterrence because (all together now) the law says not to.

Women good, harsh punishment bad. Thus speaks bien-pensant opinion, and thus speaks the Court.