Leskun v Leskun (2006 SCC 25)

Key takeaways {#takeaways}

• Adultery by itself cannot raise or lower spousal support — the Divorce Act bars courts from considering marital misconduct.
• But the consequences of misconduct, like emotional harm that blocks a spouse from working, can still count.
• Becoming self-sufficient after divorce is a goal, not a duty; falling short is one factor among many.

Leskun v Leskun at a glance {#summary}

Not directly, no. Section 15.2(5) of the Divorce Act tells judges deciding spousal support that they "shall not take into consideration any misconduct of a spouse in relation to the marriage." But in Leskun v Leskun, the Supreme Court of Canada confirmed that the consequences of misconduct — such as emotional devastation that keeps a spouse out of the workforce — remain relevant to need and self-sufficiency.

Most people assume a cheating spouse pays for it in court. Canadian divorce law says the opposite: support is no-fault. Gary Leskun tested that rule. After a 20-year marriage in which Sherry Leskun cashed in her RRSPs to fund his MBA, he left her for another woman and was ordered to pay $2,250 a month. When he applied to end support, he argued her bitterness was her own problem. The Supreme Court agreed misconduct was off the table — and still dismissed his appeal.

The facts {#facts}

Gary and Sherry Leskun married in 1978. They met working at the Toronto-Dominion Bank, where Sherry worked for most of the marriage. She interrupted her career, cashed in her RRSPs, and took back her pension contributions to support the family while Gary earned an MBA and worked toward his accounting designation. Those qualifications substantially boosted his earning power (para 4).

Then, in a short span, everything went wrong for Sherry. In 1995 she injured her back lifting a generator; surgery followed and her recovery was incomplete. The month before the marriage broke down, she learned her bank job was being eliminated (para 6). In September 1998, Gary — by then moved to Chicago with Motorola — returned to Vancouver to tell her he wanted a divorce so he could marry someone else. His own counsel acknowledged he had been "carrying on behind his wife's back" for some time (para 1). The divorce went through in 1999.

At trial in 2000, Collver J found Sherry had been disadvantaged by the marriage and ordered spousal support of $2,250 per month, with a review once her employment situation resolved (para 7). She later received an $83,000 severance from the bank (para 6).

In 2003, Gary applied to end support, saying he was unemployed and in financial difficulty. The chambers judge, Morrison J, found he had been "less than forthright" about his finances, held assets of about US$761,800 — then roughly one million Canadian dollars — and had invested as much as $230,000 in a bagel business (paras 9, 32). She continued the $2,250 monthly support. The BC Court of Appeal upheld that order (2004 BCCA 422), with the majority saying courts could consider a failure to become self-sufficient caused "at least in part" by the emotional devastation of the other spouse's misconduct. Gary appealed to the Supreme Court of Canada.

The legal issues {#issues}

The Supreme Court, in a unanimous judgment by Binnie J, dealt with four questions (para 15):

1. Did the BC Court of Appeal wrongly take spousal misconduct into account in deciding entitlement to support?
2. Does a support recipient have a "duty" to become self-sufficient?
3. Can a paying spouse's capital assets — including assets acquired after separation — count toward ability to pay?
4. Was Gary's application a "review" under s. 15.2 of the Divorce Act, or a variation under s. 17 requiring proof of changed circumstances?

What the court decided {#decision}

The appeal was dismissed, but the Court corrected the Court of Appeal's reasoning on misconduct.

Misconduct is off the table. The 1985 Divorce Act deliberately removed fault from support. Section 15.2(5) says the court "shall not take into consideration any misconduct of a spouse in relation to the marriage," and s. 17(6) applies the same bar on variation. Misconduct must not "creep back into the court's deliberation" through the general factors in s. 15.2(4) (para 20). The Court of Appeal majority had wrongly suggested a court "can achieve indirectly what Parliament has said the court is not to do directly" (para 2).

But consequences of misconduct still matter. Binnie J drew the line that made this case famous: "There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse's misconduct" (para 21). His example: if spousal abuse triggered a depression so serious the claimant became unemployable, those consequences would be highly relevant to entitlement, amount, and duration. The focus is on consequences, not blame. "It is not helpful to cast about to assign blame" (para 22).

Self-sufficiency is not a duty. Section 15.2(6)(d) makes promoting each spouse's economic self-sufficiency an objective "in so far as practicable." Citing Moge v Moge and Bracklow v Bracklow, the Court repeated that this is not a duty, and failure to achieve it is "simply one factor amongst others" (paras 26–27).

Capital counts, including after-acquired capital. "Means" includes all pecuniary resources and capital assets (Strang v Strang). Because Gary's assets — including the bagel business — did not exist at the time of the original property division, no "double dipping" problem arose (paras 29–32). His complaint about how his net worth was calculated failed too: the chambers judge had found him less than forthright, and the Court quoted Fraser J in Cunha v Cunha: "Non-disclosure of assets is the cancer of matrimonial property litigation" (para 34).

Review, not variation — but it made no difference. Gary's application was properly a review under s. 15.2, so he did not need to prove changed circumstances. It failed anyway: "His application does not rise or fall on the issue of onus. It fails on the facts" (para 42). The Court also cautioned trial judges to use review orders sparingly and to define the review issue tightly (para 39).

The appeal was dismissed without costs, except that Sherry — who represented herself at the Supreme Court — was entitled to her out-of-pocket expenses (para 43).

Where the law stands now. Leskun remains good law. Section 15.2(5) of the Divorce Act is unchanged in the current consolidation (Divorce Act, s. 15.2), including after the 2021 amendments to the Act's parenting provisions. For BC couples using the provincial statute — including unmarried spouses — the Family Law Act takes a slightly different approach: s. 166 bars consideration of misconduct except conduct that "arbitrarily or unreasonably" causes, prolongs or aggravates the need for support, or affects the ability to pay (FLA, Part 7). That exception targets economic behaviour — for example, unreasonably refusing to work or deliberately reducing income — not affairs.

Does adultery affect spousal support in Canada? {#the-test}

No — not as misconduct. If your spouse had an affair, that fact alone will not increase the support you receive or reduce what you pay. Canadian divorce law is deliberately no-fault: Parliament decided that trying "to get to the bottom of all the rights and wrongs" of a breakup is likely impossible and irrelevant to sorting out the finances (para 23).

But Leskun says the story does not end there. Support is driven by each spouse's "condition, means, needs and other circumstances." If the way the marriage ended left you with real, lasting consequences — depression that keeps you from working, health problems worsened by the breakdown — those consequences are fully relevant. The court does not ask who caused the harm; it asks whether the harm exists and what it does to your capacity to support yourself.

In Sherry Leskun's case, the Supreme Court did not uphold her support because of the affair. It upheld it because she was approaching 60, had health problems, had worked only in banking since age 17, had narrow work experience and few marketable skills, and had sacrificed her RRSPs and pension for the family (paras 10–11, 24). Those are consequences and circumstances — not blame.

The framework {#numbers}

How a court approaches misconduct and support after Leskun:

Question	What the law says	Source
Can the court consider the affair itself?	No. Misconduct "as such, is off the table."	Divorce Act s. 15.2(5); Leskun para 20
Can the court consider the fallout from the affair?	Yes, if it affects need or capacity — e.g. inability to work.	Leskun para 21
What factors drive the support decision?	Condition, means, needs and circumstances; length of cohabitation; roles during the marriage; any agreement or order.	Divorce Act s. 15.2(4)
What are the objectives?	Recognize economic advantage/disadvantage; share child-related costs; relieve hardship; promote self-sufficiency where practicable.	Divorce Act s. 15.2(6)
Is self-sufficiency mandatory?	No — an objective, not a duty; failing to reach it is one factor among others.	Leskun paras 26–27
Does the payor's capital count?	Yes — "means" includes capital, even assets acquired after separation.	Leskun paras 29–32
BC's provincial rule?	Misconduct excluded, except conduct that arbitrarily or unreasonably worsens need or ability to pay.	FLA s. 166

Verified case figures: support of $2,250 per month (paras 5, 7); wife's former salary $45,000 (para 40); severance $83,000 (paras 6, 40); husband's assets about US$761,800 (para 9); bagel business investment up to $230,000 (para 32).

What this means if you're separating in Surrey {#bc-impact}

If you are going through a divorce in BC, Leskun answers one of the most common first questions clients ask: "Does the affair change what I get or pay?" On its own, no. Energy spent proving infidelity is usually energy wasted — and money spent on litigation you may not recover.

What does matter is the economic picture. Did you give up career ground, savings or pension contributions during the relationship? Are you dealing with health or emotional consequences that limit your ability to work now? Those facts drive entitlement and amount, whichever statute applies. Married spouses can claim under the Divorce Act or the Family Law Act; unmarried spouses who qualify claim under the Family Law Act, where s. 166 adds a narrow exception for economically unreasonable conduct.

Leskun also matters if you are the paying spouse. Your capital — not just your salary — is part of your "means," including assets you built after separation. And the Court's endorsement of the Cunha warning about non-disclosure means incomplete financial statements tend to backfire: judges can draw adverse conclusions against the spouse who hides the ball. That lesson applies equally when negotiating separation agreements or working through family mediation, where full disclosure is the foundation of any durable deal. If children are involved, remember child support takes priority over spousal support (child support in BC).

How a lawyer uses Leskun {#in-practice}

• Reframing the conduct conversation. When a client wants the affair "to count," Leskun lets a lawyer redirect: the court will not assign blame, but it will listen to evidence of consequences — medical, psychological, vocational — that affect earning capacity.
• Building (or attacking) a self-sufficiency case. Leskun shows both edges. Sherry succeeded despite thin documentary evidence, but the Court noted independent evidence, including medical evidence, is "highly desirable" where incapacity is alleged (para 28). Lawyers on either side plan their evidence accordingly.
• Ability-to-pay arguments. Paras 29–32 are the standard cite for reaching a payor's capital, including post-separation assets, where they were not part of the original property division.
• Disclosure fights. Para 34's adoption of the Cunha "cancer" passage is routinely cited when asking a court to draw adverse inferences against a non-disclosing spouse.
• Drafting review clauses. Para 39's direction that review issues be "tightly delimited" guides how lawyers draft review terms in orders and agreements, so a review does not become an invitation to relitigate everything.

See more of our case commentaries.

Frequently asked questions {#faq}

My spouse cheated. Will I get more spousal support?

Not because of the cheating itself. The Divorce Act bars courts from considering marital misconduct when setting support. What can matter is the economic and health fallout — for example, if the breakdown left you unable to work. Courts look at need, means and the economic history of the relationship, not fault.

Can my ex refuse to work and collect support forever?

Self-sufficiency is an objective, not a duty, so there is no automatic cut-off for failing to become self-supporting. But courts assess whether a claimed inability to work is credible, and independent evidence — like medical reports — carries real weight. Conduct that arbitrarily or unreasonably prolongs need can also be considered under BC's Family Law Act s. 166.

Do savings and investments count toward spousal support, or just income?

Both. Leskun confirms that "means" includes all pecuniary resources and capital assets, even assets acquired after separation, as long as they were not already divided in the property settlement. A payor cannot shelter wealth in capital to avoid support.

References {#references}

• Leskun v Leskun, 2006 SCC 25, [2006] 1 SCR 920 — read in full at the Supreme Court of Canada's official decisions database: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2298/index.do (accessed 6 Aug 2026). All paragraph pinpoints and quotations in this commentary are taken from this source. Note: the CanLII copy (https://www.canlii.org/en/ca/scc/doc/2006/2006scc25/2006scc25.html) and the Lexum mirror both FAILED to load (HTTP 403); the official SCC copy above loaded and was used instead.
• Divorce Act, RSC 1985, c 3 (2nd Supp), ss 15.2, 15.3, 17 — current consolidated text read at https://laws-lois.justice.gc.ca/eng/acts/d-3.4/page-3.html (accessed 6 Aug 2026). Section 17 text was read as quoted within the Leskun judgment (para 35) and described in s. 15.2 context; s. 15.2(4)–(6) verified directly against the consolidation.
• Family Law Act, SBC 2011, c 25, Part 7 (ss 160–174, including s 166) — current text read at https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_07 (accessed 6 Aug 2026). Single successful fetch of raw statute text; no conflicting version encountered.
• Leskun v Leskun, 2004 BCCA 422, (2004) 31 BCLR (4th) 50 — cited as described within the SCC judgment (paras 1, 12–14); the BCCA decision was not separately fetched.
• Cunha v Cunha (1994), 99 BCLR (2d) 93 (BCSC) — quoted as reproduced in the SCC judgment at para 34; not separately fetched.
• Moge v Moge, [1992] 3 SCR 813; Bracklow v Bracklow, [1999] 1 SCR 420; Strang v Strang, [1992] 2 SCR 112; Boston v Boston, 2001 SCC 43 — cited as referenced within the SCC judgment (paras 26–31); not separately fetched.