Imagine a woman is so infuriated with her husband for his philandering, gambling and drinking that she disinherits him. Upon her demise, the husband commences an application for support under Part V of the Succession Law Reform Act (the “SLRA”).[1] The husband qualifies as a dependant because he is a spouse and his wife had a legal obligation to support him. What impact, if any, would his past behaviour have on his entitlement to dependant’s support?

By way of background, claims for dependant’s support are governed by Part V of the SLRA. Within Part V, section 57 contains the definition of a “dependant,” which includes the spouse of the deceased. The definition also provides that the deceased must have either been providing support or been under a legal obligation to provide support to the dependant immediately before his or her death.[2] Section 62 of the SLRA contains an extensive, but not exhaustive, list of factors the court will consider in determining the amount and duration of support to be awarded to a dependant. Section 62(1)(r) contains factors considered specifically for a dependant spouse, and subsection (i) therein contains the phrase “a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.”[3] This leads to the first question that a disinherited spouse might have: what will be considered unconscionable conduct sufficient to preclude or lessen the amount or duration of support awarded?

There is a paucity of case law on this issue. The court has ruled that bringing an action for divorce does not constitute gross repudiation of the relationship, but that conduct such as adultery or alcoholism can be considered sufficiently unconscionable so as to disentitle a dependant to support.[4] In the context of an estate dispute, the court has also stated that, in order for conduct to rise to the level contemplated in s. 62(1)(r)(i) of the SLRA, it must shock one’s conscience.[5]

In assessing what a court might consider “unconscionable conduct,” it is useful to consider how subsection 33(10) of the Family Law Act (the “FLA”) [6] has been treated. This section features parallel language to subsection 62(1)(r)(i) of the SLRA.[7 ] We know from the study of cases under the FLA that it is rare for the conduct of a spouse to be held as being so egregious as to warrant disqualification or limitation of spousal support.[8]

A test for such unconscionable conduct under subsection 33(10) was formulated in Morey v. Morey [9] as follows:

(a) the conduct must be exceptionally bad;

(b) the conduct must be such as could reasonably be expected to destroy the marriage;

(c) the conduct must have persisted in the face of innocence and virtual blamelessness on the part of the other spouse;

(d) the commission of a matrimonial offence is not sufficient by any means;

(e) the party raising the issue of relevant conduct should be prepared to undertake that there is a bona fide belief that the test can be satisfied while acknowledging the risks of punitive costs if the court finds on the whole that the issue is frivolous; and

(f) the pleadings or subsequent written particulars should set out a summary of the conduct relied on to meet the test so that the court can make a preliminary ruling based on the likelihood of the test being met.

In B. (S.) v. B. (L.),[10] a wife’s series of extra-marital relationships, which included one with the brother of her husband, were stated to have been “exceptionally bad” and “reasonably expected to destroy the marriage.” However, these factors were countered by the husband’s drug dependency problem, and the finding that the husband knew or ought to have known about his wife’s adulterous conduct. Furthermore, the husband admitted to have participated in at least one instance of adultery himself, so he was found to not have come to court with clean hands on the issue.[11]

The decision in Bruni v. Bruni, written with great wit by Justice Quinn,[12] features the most extensive analysis of what constitutes “unconscionable behaviour” under section 33(10) of the FLA. The case involved a bitter dispute over a separation agreement. After closely reviewing the language used in section 33(10) of the FLA, His Honour, Justice Quinn wrote: “There is no need to formulate a test. Section 33(10) contains its own test; and it will be a rare case that passes the test.”[13]
His Honour added that a “course of conduct” will require something more than an isolated incident. In Bruni v. Bruni, the court found that the conduct of the wife, in alienating one of her children from the child’s father reflected an intent to destroy the child’s relationship with the father, which was considered shocking conduct.[14] The behaviour exhibited in Bruni v. Bruni had the effect of reducing the wife’s spousal support to one dollar monthly.[15]

From the few cases that have explored the issue of unconscionable conduct, there is no clear picture as to what might trigger the use of subsection 62(1)(r)(i) of the SLRA. It is also uncertain whether the test enunciated in Morey v. Morey remains good law after the decision in Bruni v. Bruni. Seeing as how the Morey v. Morey test was applied in 2013 in Smith v. Smith,[16] at the very least the test can be looked to as a guideline. What is certain, as articulated by His Honour, Justice Quinn in Bruni v. Bruni, is that the language of 62(1)(r)(i) of the SLRA and 33(10) of the FLA create a stringent and difficult test.
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Notes:
[1]. R.S.O. 1990, c.S.26.
[2]. Part V also contains a definition of “spouse, “which includes either of two persons who:
(a) were married to each other by a marriage that was terminated or declared a nullity, or
(b) are not married to each other and have cohabited,
(i) continuously for a period of not less than three years, or
(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
[3]. SLRA, s. 62(1)(r)(i).
[4]. Tothivan, Re, 1982 CarswellOnt 623, at para 17.
[5]. Lapierre v. Lapierre Estate, 2002 CarswellOnt 1371, at para 32.
[6]. RSO 1990, c. F.3.
[7]. Subsection 33(10) of the FLA states: “The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.”
[8]. Bruni v. Bruni, 2010 ONSC 6568 (Bruni), at para. 207.
[9]. (1978), 24 O.R. (2d) 124 (Ont. Prov. Ct.) at paras. 32-37; also see B. (S.) v. B. (L.) (1999), 2 R.F.L. (5th) 32 (Ont. S.C.J.) at para. 9; Smith v. Smith, 2013 ONSC 6261, at para. 91.
[10]. 1999 CarswellOnt 3202.
[11]. Ibid, at paras. 9-13.
[12]. The entire decision is written in a sarcastic tone. His Honour, Justice Quinn, takes every opportunity to make light of the tragic situation that the parties have found themselves in.
[13]. Bruni v. Bruni at para. 207.
[14]. Bruni v. Bruni at para. 209. Justice Quinn also calls the conduct of the wife “evil,” at para. 210.
[15 Bruni v. Bruni at para. 212.
[16]. 2013 ONSC 6261, at para. 91.