It is almost trite family law to suggest that in spousal support cases, conduct is not relevant, even though there are cases where conduct has impacted significantly with a spouse's ability to become self-sufficient.

Many of us have spoken, if not heard the words: "I take you to be my spouse, to have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish; from this day forward until death do us part".

And yet, there it is, not everywhere but behind the rare closed door in many if not most North American neighbourhoods. Where it strikes, it devastates. Not like a blow which bruises and the body can heal with a surge of white blood cells, Instead, it takes root like a cancer, tormenting, the victim horrified at the prospect of the next feeding.

All the while, the hapless victim is unable to run away what with little children often running afoot. And those children, one day, when they become adults, will seek a model to their behaviour when they are in a situation of stress, with their friends or spouses. Prisons, social workers will tell you, are disproportionately full of victims of homes in which spousal abuse was present.

It needs to be widely known, as Justice Lloyd Dodgett of the Supreme Court of Texas wrote in Brenda Lewelling v Carl Lewelling, that:

"Spousal abuse is one of the greatest tragedies in our society."

It is so unfathomable, then, that it is sometimes difficult to put into words the facts that present themselves in some divorce cases: one spouse (usually but not always the husband) so emotionally abuses the other during the marriage that he/she is edged, criminally nudged into permanent mental illness. Judges and lawyers flounder with it all so foreign is it to their personal backgrounds, but still come up with fancy words to fit the phenomenon and, sometimes, to shake the stoney face of Lady Justice into action: Battered Woman Syndrome, Battering Cycle, and Domestic Violence for example.

This topic deserves a place in criminal law where the spousal support payor should go first, before being hauled in family court to pay spousal support.

But once in family court, or even where there have not been any criminal proceedings, the reach of law can find, uncover and hold the prospective payor accountable and render justice and fairness in spite of this squirmy issue.

the law shields conduct from spousal supportSquirmy because on the one hand, conduct is not usually a consideration as to spousal support, but on the other, where there is evidence that conduct created or contributed to a situation of financial dependency on welfare, disability pension or spousal support, that bridge somehow, has to be judicially built.

The Canadian Divorce Act, circa 2013:

"In making (a spousal support) order ....the court shall not take into consideration any misconduct of a spouse in relation to the marriage."

Just think, for a moment, of a spousal support defendant who has so ravaged his wife with emotional abuse that she is years in counselling and unable to get employment. Long after separation, her life still spirals and yet because of the bar to evidence as to conduct that the Divorce Act seems to present, this is a perfect spousal support shield to the abusive spouse.

Reynold Epp v Jenica Epp

In this 1998 British Columbia case, Justice Holmes of the British Columbia Supreme Court had this egregious evidence before him.

It shook him enough to connect it with the issue of spousal support:

"The defendant's evidence is that during his alcoholic years the plaintiff abused her emotionally, verbally and on occasion, physically. She claims the emotional and verbal abuse continued after he stopped drinking....

"The defendant suffers from fibromyalgia. The onset of the illness commenced in 1993 during the currency of the marriage relationship. The accumulated stress from the plaintiff's conduct toward the defendant in combination with her obsessive-compulsive personality pre-disposed her to fibromyalgia. It was a contributing factor.

"The defendant's fibromyalgia has totally disabled her from working at the normal duties of a registered nurse since 1995. That inability, in part, arises from the marriage and marriage breakdown. The defendant, absent her fibromyalgia, would now be capable of self-sufficiency."

Much solace can be taken in the fact that the people that work in the legal drafting offices monitor judicial decisions. In British Columbia, a brand-new Family Law Act (enacted in 2011 but brought into force in 2013), presents this much more reasonable proposition of law which reflects the reality, unfortunately, of some spouses who do not survive the period of cohabitation intact:

"In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably causes, prolongs or aggravates the need for spousal support, or affects the ability to provide spousal support."