Vancouver Spousal Support Delay Lawyers deal with cases where a spouse fails to apply promptly for BC spousal support. Don’t be foolish and miss deadlines!Vancouver Spousal Support Delay Lawyers know delay and procrastination in a family case prolongs the stress and often has disastrous consequences. Call Vancouver’s top rated family law firm today to find out your rights and obligations at 604-602-9000 and meet with us in Vancouver, Calgary, Surrey, Richmond, Kelowna or Dawson Creek/ Fort St John.
People often ask our skilled Vancouver Spousal Support Delay Lawyers how long do I have to claim spousal support? The answer will surprise you.
Vancouver Spousal Support Delay Lawyers
Many family law clients are surprised to find out that there is no time limit for making a claim for spousal support for married persons under our Divorce Act while there is a 2 year time limit to claim support for unmarried spouses under the BC Family Law Act.
Spousal support is complicated and guidelines are applied.
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Is Delay In Applying For Spousal Support Fatal?
- What happens when someone seeks support 16 years after they separated?
- Can the delay be fatal to a claim for spousal support for a separated or divorced married spouse?
- Is it fair for someone to delay several years and then seek support retroactively for more than 16 years?!
The answer is “it depends” In the recent case of Biggs v Biggs the court explained the different time limit rules for common law versus married spouses who seek support.
If you are unmarried, you should seek support immediately and if you don’t claim spousal support within 2 years, barring rare exception your claim will be lost forever.
If you are married or are divorced there is no time limit but delay hurts your claim and may in fact be fatal to it. Delay raises a possible assumption that you did not need support for the period you filed to act and that this also means you shouldn’t get it in the future. Many times spouses are confused, scared or do not want to pay legal fees. Getting timely legal advice can mean the difference in recovering hundreds of thousands of support payments versus receiving nothing. Get legal advice immediately on separation to find out what your rights and obligations are.
Recent Delay Case Explained By Vancouver Spousal Support Delay Lawyers
In Biggs the court reviewed the law on delay, explained differing limitation periods for married and unmarried spouses and then reviewed factors in determining whether spousal support should be awarded and for how long. In the end the court found a 16 year delay was fatal to a claim for past and future spousal support.
[60] Unlike the Family Law Act, S.B.C. 2011, c. 25 [FLA], there is no limitation period in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) [DA] which bars a spouse or former spouse claiming spousal support, nor does the equitable defence of laches apply: H.J.K. v. J.E.B., 100 B.C.A.C. 1. I conclude that the claimant is not barred from making a claim for spousal support.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
…
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[69] In determining entitlement to spousal support, its basis is determined on whether it arises as compensatory: Moge v. Moge, [1992] 2 S.C.R. 813; non-compensatory support: Bracklow v. Bracklow, [1999] 1 S.C.R. 420; or contractual. Contractual support does not arise in this case. Madam Justice McLachlin, in Bracklow, wrote at para. 32:
…However, as will be seen, Parliament and the legislatures have decreed otherwise by requiring courts to consider not only compensatory factors, but the “needs” and “means” of the parties. It is not a question of either one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court.
[75] The claimant’s position is that she does not earn enough income to meet her expenses. This requires the consideration of “the condition, means, needs and other circumstances of each spouse”. This is non-compensatory support. Its nature is set out in Bracklow at para. 40:
[40] While the statutes contemplate an obligation of support based on the grounds of contract and compensation, they do not confine the obligation to these grounds. The “ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves” (Family Relations Act, s. 89(1)(d)), suggests a concern with need that transcends compensation or contract. Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown. Similarly, “economic circumstances” (s. 89(1)(e)) invites broad consideration of all factors relating to the parties’ financial positions, not just those related to compensation. The same may be said for the broad injunction of the Divorce Act that the court consider the “condition, means, needs and other circumstances of each spouse”. To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application. Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.
[82] In considering non-compensatory support, need is only one factor. In Bracklow, Madam Justice McLachlin wrote at para. 54:
… Need is but one factor to be considered. This is consistent with the modern recognition, captured by the statutes, of the variety of marital relationships in modern society. A spouse who becomes disabled toward the end of a very short marriage may well be entitled to support by virtue of her need, but it may be unfair, under the circumstances, to order the full payment of that need by the supporting spouse for the indefinite future.
[86] The respondent argues that the claimant delayed in bringing her application. In H.J.K. v. J.E.B., [1997] B.C.J. No. 2705, the court held that there is no limitation period in advancing a claim for spousal support pursuant to the DA. Nor does the equitable defence of laches apply. However, the court in H.J.K. did not rule out delay as a factor in making a claim for spousal support when it said “It may be that evidence of an unexplained delay in the bringing of an application for support would be relevant for consideration under s. 15.2(4).” In this case, there is a delay of 13 years, at which time it occurred to the claimant, as a result of appearing before Dley J., that she might consider spousal support. She acted upon it approximately one year later; 14 years after separation.
[87] Over the past 16 years, the claimant has been self-sufficient, able to afford extensive travel, able to participate in physical recreational activities and able to pursue additional methods of earning other income.
[88] I find that the claimant is not entitled to spousal support based on either or both compensatory or non-compensatory model. In making this order, I also consider the delay of the respondent in making this application.
This result is a classic reason we warn clients seeking support to deal with the matter immediately. Trying to get support far into the past is difficult and getting it for the future is compromised by delay as well.
When you separate meet with one of the top rated Vancouver Spousal Support Delay Lawyers at MacLean Family Law. You’ll be glad you did. Call Lorne N. MacLean, QC at 604-602-9000.
