"Doctor Must Support Abusive Husband" is the headline in the Globe and Mail newspaper, on September 23, 2009. I am sure many people were outraged at the judge who made this decision.
In reality, I would be outraged if I was the female doctor whose husband was convicted of assaulting me and now I had to pay him $6,000.00 per month in spousal support. But, it is the right decision.
Let’s look more closely at the facts and the law.
According to The Globe, the wife has an income of over $400,000 per year while the husband’s income is around $45,000. Certainly, it appears he will suffer economically as a result of the separation and that’s one factor the court must consider.
Also, the wife had signed an agreement in which she agreed to pay her husband $6,000.00 per month as spousal support. That’s something else to be considered too.
The doctor did not yet prove that the agreement was signed under duress or she did not understand what she was signing or that it was unconscionable. She may prove this at trial but at this point in the proceedings, the agreement appears to be enforceable.
At the trial, the judge may decide that it the assault was a repudiation of the relationship rending spousal support inappropriate, but, frankly, I doubt that will happen. The husband received a suspended sentence for the assault suggesting it was not a horrendous assault. I am sure it was horrendous for the doctor but not so in comparison to other assaults.
The courts don’t get into an examination of who was the "good guy" and who was the "bad guy" in a relationship. The law is very clear: section 15.2(5) of the Divorce Act says judges are not to consider any "misconduct" during the marriage when considering whether there should be spousal support.
You may disagree with the law and believe that the court should look into the behaviour of the husband and wife before determining spousal support or, for that matter, any other issue. Maybe you feel that "misconduct" should be considered when equalizing the property. What about when determining custody and access?
Well okay… but I would not want our judiciary having to make moral judgments in family law cases. It can get pretty complicated. People would use the court to seek revenge, further escalating the pain and conflict inherent to divorce.
Judges apply the law, they don’t make it. If you want to change the law, talk to your Member of Parliament but don’t blame the judges. They are just doing their job.