Ottawa Citizen
Saturday, January 18, 2003

Man can sue for spousal support

Cristin Schmitz
The Ottawa Citizen

A man who assaulted and terrorized his ex-wife can proceed to sue his victim for spousal support, an Ontario court has ruled in an odd case that gives new meaning to "no-fault" divorce.

Superior Court Justice Margaret Scott of Oshawa, Ont. recently granted Elina Scavetta, 57, a final order against Tony Scavetta, 53, restraining him from "threatening, harassing or communicating" with, or going within 30 metres of, her or their daughter.

The judge ruled, however, that Mr. Scavetta's claim against Mrs. Scavetta for spousal support under the Divorce Act can move forward to trial, despite the crimes he committed against his former spouse in the past 15 years. After living with him for eight years, Mrs. Scavetta divorced him in 1987 on the rarely used ground of cruelty.

Her ex-husband, who has been hospitalized "numerous" times with bipolar mood disorder and now lives on social assistance, has been convicted and imprisoned for assaulting and making death threats against Mrs. Scavetta and criminally harassing her by telephone from jail. His most recent conviction was in 1998. The court's decision, reported in next week's The Lawyers Weekly, also states that Mr. Scavetta "acknowledged that he sexually abused" their now-adult daughter when she was four or five.

Under 1968 changes to the Divorce Act that created "no-fault" divorce, judges awarding spousal support are specifically barred from considering "any misconduct of a spouse in relation to the marriage."

"If I was a member of Parliament and had the power to vote on an amendment to the Divorce Act, I would vote, based on my personal views, to delete that subsection," remarked Toronto lawyer James Herbert, who represents Mrs. Scavetta.

While Mr. Scavetta's conduct doesn't bar him per se from spousal support, "I think that he is unlikely to be successful at trial," Mr. Herbert predicted.

He said his client remains fearful of her former husband and "strongly opposes" paying him any support. She is countersuing for $2 million in damages, alleging assault and battery, intentional infliction of mental suffering and intimidation. She is also claiming back child support.

Ottawa lawyer Julien Payne, an authority on divorce law, said some American states have put "fault" back into their family law statutes. He argued the Canadian law should not be changed to once again permit divorce courts to take into account spousal misconduct.

"It's the old adage that hard cases make bad law, but I don't think you change the system because of that.

"The rationale for the reform in 1968 is we wanted to get away from warfare in the courts. You increase hostility when you have people flinging around allegations."

Spousal misconduct is legally irrelevant, but that doesn't mean individual judges ignore it, Mr. Payne added. "When you get into the minds of judges, they are ordinary people too, and image ... is damned important, so I don't fear that you are going to have men coming out of the woodwork in situations where they have been inhumane to their wives and they are getting support."

Under Ontario's Family Law Act and some other provincial family law statutes misconduct can be taken into account by courts to reduce the amount of spousal support awarded if there has been "a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship." The law applies to separated spouses who are not yet divorcing.

Mrs. Scavetta tried to have Mr. Scavetta's spousal support claim thrown out under a legal rule that permits courts to dispose of cases at an early stage when the case has no hope of succeeding. But Judge Scott held she had no choice but to let Mr. Scavetta proceed to a full trial since there was not yet enough evidence before the court to tell whether Mr. Scavetta might succeed in proving his claim. One ex-spouse's need for support and the other's ability to pay are two primary factors courts consider when making spousal support awards.

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