“Counsel for both parties accepted that if parental alienation was conduct that the court could consider in the spousal support analysis under the [Divorce] Act, the conduct would have to be of a nature comparable to the conduct which the court can consider pursuant to section 33(10) of the Family Law Act in determining the quantum of spousal support. Section 33(10) provides as follows:
Conduct
33(10) 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.
The phrase “course of conduct” makes it clear that something more than an isolated event is required in order for section 33(10) to come into play. Nasmith, J. articulated the test to be used in determining whether section 33(10) applies in the case of Morey v. Morey, 1978 CanLII 772 (ON CJ) as follows:
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- The course of conduct must be exceptionally bad. In this regard, the court quoted the definition of “unconscionable conduct” in Black’s Law Dictionaryas being “conduct that is monstrously harsh and shocking to the conscience.”
- The conduct must be such as could reasonably be expected to destroy the relationship.
- The conduct must have persisted in the face of innocence and virtual blamelessness on the part of the other spouse.
- The commission of a so-called matrimonial offence is not necessarily sufficient by any means.
- The party raising the issue of relevant conduct should be prepared to undertake that there is a bona fidebelief that the test can be satisfied while acknowledging the risks of punitive costs if the Court finds on the whole of the evidence that the issue is frivolous.
- 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.
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Quinn, J. commented on the stringent nature of the test to be met for conduct to fall within section 33(10) in Bruni v. Bruni, and emphasized that “it will be the rare case that meets the test: 2010 CarswellOnt 8992 (Ont. S.C.J.).”