The BC Court of Appeal released an important Vancouver Calgary Retroactive Spousal Support this week that reiterated the start date rules for spousal support in complex cases and that also used the high range for spousal support. The Vancouver Calgary Retroactive Spousal Support decision of Francis v Francis sets out that effective notice is important in a retroactive spousal support case and the rules, while somewhat similar to the rules for retroactive child support, are more strictly applied. Delay is never a good thing and the reasons for delay in applying for support will be closely looked at. Click here to meet with us across BC and in Calgary.
ALERT: The authors of The Spousal Support Advisory Guidelines suggest an award at the high end of the guidelines in long marriages when children are involved. The latest BC Court of Appeal case of Francis involved a high range award.
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How Does Vancouver Calgary Retroactive Spousal Support Work?
In Francis there had been a prompt filing and minimally delayed service of the support and financial claims by the wife on the husband. However there was over a 2 year delay in proceeding with the hearing for spousal support. Here the court found a reasonable explanation for the delay because the parties were negotiating and the property and income issues were relatively complex.
Vancouver Calgary Retroactive Spousal Support The Rules
Firstly, the Court did not blame the husband for any failure to disclose and confirmed our Vancouver Calgary Retroactive Spousal Support belief there should be no unreasonable delays in applying for spousal support:
[21] Let me begin by saying that I see nothing to criticize in Mr. Francis’s conduct in discharging his financial disclosure obligations or meeting the financial commitments that had been entered into by the parties. He has not committed blameworthy conduct that would justify altering the date for retroactive support.
[22] Equally, I agree that parties should not unreasonably delay in advancing a claim to spousal support, not least because the payor is entitled to notice of, and reasonably certainty, about his or her financial obligations. The issue here is whether the judge failed properly to evaluate this factor in exercising his discretion. In my view he did.
Vancouver Calgary Retroactive Spousal Support And Interim Deals
[23] Notice of a claim to spousal support was given by service in July 2012 and entitlement to it was not disputed. Financial disclosure was not immediate, nor could it be. Mr. Francis’s income fluctuated. Interim arrangements were made by the parties, and a spousal support consent order was made February 25, 2013. I see nothing unreasonable in this timing. The consent order was reached very shortly after delivery of the 2010 and 2011 tax returns and Mr. Francis’s Form 8. Most importantly, the consent order for spousal support was without-prejudice to Ms. Francis’s ultimate claim. Furthermore, it is by no means clear that quantum of Ms. Francis’s entitlement to spousal support was as clear as Mr. Francis submits. I cannot conclude on this record that Ms. Francis should be taken to have waived her right to spousal support in an amount greater than set out in the consent order or that Mr. Francis was lulled into a false sense of security that he had fulfilled his spousal support obligations.
No Reason To Deny Vancouver Calgary Retroactive Spousal Support Based On Delay
[24] There is then a 2 years, 1 month gap before the notice of application for spousal support is filed. The judge accepted that the delay between filing the application and the application being heard was justified in the circumstances. That conclusion is not in issue on this appeal. But the judge concluded that the delay either from the filing of the notice of family claim or the consent order was sufficiently unjustified to warrant departing from the general rule for the effective date of support.
[25] In my view, this is where the judge fell into error. As I have already said, the delay before entering the consent order is readily explained by the timing of Mr. Francis’s financial disclosure. Thereafter, the parties were confronted with the need to resolve all of the financial aspects of their separation and pending divorce. I see nothing in the record that supports the view that either party was at fault for the time it took to resolve these issues. Certainly there is nothing to support laying responsibility at the feet of Ms. Francis for the purpose of depriving her of her prima facie entitlement to support effective the date of her claim. Further, the issues of property division and spousal support are related and intertwined. In my view, it was not unreasonable for Ms. Francis not to bring on an application for spousal support while property division remained unsettled. The fact that she was seeking spousal support was, at all times, on the table and subject of negotiation. The property division left spousal support unresolved, but Mr. Francis was at all times on notice of Ms. Francis’s claim and the basis for it. She clearly had a strong claim to compensatory support at the high end. Mr. Francis could not have been in doubt about that.
[26] Ms. Francis moved immediately on the property division settlement to file her application for spousal support. On the facts found by the judge, I think it was an error in principle, to depart from the general rule set out in Kerr v. Baronow. With respect, I do not think the judge gave full effect to the principles set out in that judgment, particularly at paras. 210‑6. In my view, the effective date should have been, in principle, the date of serving the notice of family claim, given the delay between filing and service of the claim.
[28] I would allow the appeal, substitute as the effective date, the date of serving the notice of family claim. The record, at AB 426, sets out the high range for each year based on Mr. Francis’s income. For each year of retroactive support, the calculation of income should be the income of the previous year.
