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Retroactive Spousal Support and Delay

What happens in retroactive spousal support and delay cases? Often times the reason for the delay and the actions of both the higher earning spouse and the spouse who may have a compensatory or needs based spousal support claim will be a key deciding factor. If you are the person needing spousal support, procrastination is not your friend. In today’s blog by Peter Graburn, our Calgary senior family lawyer, we discuss how Retroactive Spousal Support and Delay impacts the amount of spousal support and how far back the spousal support payment will start. If you may be entitled to spousal support claim it immediately by contacting us now.

Calgary Retroactive Spousal Support and Delay 403 444 5503

Dealing with separation and divorce involves resolving many issues: parenting of children; financial support for children; division of family property, etc. But another issue that may often need to be resolved is financial support for each other: partner or “spousal” support. Spousal support may often be the ‘elephant in the room’ in separation and divorce: some don’t want to raise it (too early); some don’t want to claim it at all; some don’t want to pay it.

So what happens if separating couples don’t raise the issue of spousal support in a timely manner after separation? What happens if there is significant delay in bringing a claim for spousal support? And how long a delay is too long? Newer cases have begun to treat Retroactive Spousal Support and Delay cases more similarly to retroactive child support cases. Factors to be considered on retroactive spousal support include:

  • The reason why support was not sought earlier;
  • The conduct of the payor spouse including but not limited to family violence and non-disclosure of income;
  • The circumstances (both past and current) of the recipient; and
  • Potential hardship on the payor flowing from a retroactive award as opposed to paying overdue funds after the fact.

Basics Of Spousal Support

Retroactive Spousal Support and Delay
Peter Graburn Calgary Family Mediation Arbitration Lawyer

Spousal support is simple in theory (being the financial support of one spouse by the other upon separation or divorce) but more complicated in law [involving applying the legal concepts of Entitlement, Quantum (“how much”), Duration (“how long”), and Payment (“how”)]. There is no automatic right to receive spousal support in Canada.  As the Alberta Court of Queen’s Bench noted [see: VS v. AK (2005 ABQB 754) at para. 20]:

“a person does not acquire a lifetime pension as a result of marriage. Likewise, marriage is not an insurance policy.”

Conversely, if there is clear economic disadvantage, children are born, or the marriage is a long one with far different incomes for the spouses on separation, spousal support is likely to be awarded.

The seminal decision in Moge v Moge  in 1993 and the Spousal Support Advisory Guidelines in 2005 establish a broad basis for spousal support and put an end to the self sufficiency clean break model. Because it better responds to the objectives for spousal support orders set out in the Divorce Act, the compensatory model of spousal support was preferred by the Court in Moge over the self-sufficiency model.

In applying this new spousal support model, a complex set of considerations must go into a court’s assessment of the appropriate level of support. The financial consequences of child-care responsibilities that survive the marriage must be accommodated. In setting proper levels of support, the courts should also have regard to the parties’ standard of living during the marriage.

So, if there is no automatic right to spousal support but there is a broad basis where it can be awarded, how long after separation can a spouse wait before making a claim for spousal support?

Vancouver Retroactive Spousal Support and Delay Limitation Periods 604 602 9000

Vancouver Retroactive Spousal Support
High Net Worth Retroactive Spousal Support lawyers Fraser MacLean, Keith Bracken and Lorne MacLean, QC

In BC if you are applying for spousal support under the Divorce Actyou do not have a time limit BUT IF you were unmarried, and you qualify for spousal support, you must apply within two years of the date you separated.

In Alberta there are no specific statutory limitation periods for making a claim for spousal support , for either married couples under the federal Divorce Act  or so-called “common-law” couples under the Alberta Family Law Act [see: Blaney v. Murphy (2020 ABQB 196); Thalheimer v. Chalut (2021 ABQB 19)] . But the Alberta Courts (both Queen’s Bench and Appeal) have held that failing to bring a spousal support claim in a timely manner can be contrary to public policy, ie.  where the unreasonable delay in bringing such a claim causes prejudice to the payor spouse. Generally, the longer the delay in commencing a claim for spousal support, the harder it is for such claim to be successful. But how long is too long?

Retroactive Spousal Support and Delay

Generally, the law on bringing a claim for retroactive child support (and by analogy, spousal support) was set out in the Supreme Court of Canada case of DBS v. SRG (2006 SCC 37) (as recently updated in the SCC cases of Michel and Colucci), which held that parties may usually go back 3 years for such claims, but that (even then) the Court will look at all the circumstances of the situation, including: unreasonable delay; blameworthy conduct; prejudice, and; hardship. These factors set out in DBS for determining how (and specifically how far back) to allow retroactive financial support have long been considered somewhat vague (if not confusing). Fortunately, a number of recent cases across Canada have given a better idea of how far back the Courts will (or will not) allow a claim for spousal support.

In Ontario, in the recent case of Karlovic v. Karlovic (2018 ONSC 4233), the Ontario High Court of Justice dismissed a divorced husband’s claim for retroactive spousal support brought some 13 years after being finally separated, holding (at para.’s 56 -58):

“It has been oft repeated that there is no limitation period for an application for spousal support. However extreme delay in bringing the application can defeat or diminish such a claim… While delay may indicate that the parties have taken steps to unravel their financial interdependence, that is not always the case.”

In Manitoba, in the recent case of TGR v. KMR (2019 MBQB 268), the Court of Queen’s Bench of Manitoba dismissed a divorced wife’s claim to retroactive spousal support brought some 33 years after separation (claiming PTSD from the husband’s actions), holding (at para. 101):

“[D]espite having claimed spousal support in her 1988 Application, Answer and Notice of Motion, she chose not to pursue it at either of the two interim proceedings.  She further chose not to pursue it when the divorce was pronounced and subsequently when the child support Orders were varied on two separate occasions.  Sitting on her claim for 17 years from the date of divorce and 26 years from the date of separation before providing the Petitioner with notice that she intended to pursue spousal support is simply too long to continue to be a viable claim.”

However, in British Columbia, in the recent case of Legge v. Legge (2021 BCCA 365), the BC Court of Appeal overturned a lower Court decision denying a divorced wife’s claim to retroactive spousal support brought 10 years after separation (due to a lack of finances to advance a spousal support claim), noting the Husband could not have been taken by surprise as the Wife had commenced a claim for spousal and child support in BC Provincial Court soon after separation.

Compelling Reasons for Spousal Support Delays

So, the real question in addressing delay in bringing a claim for spousal support may not be just the length of time of the delay, but the reason for the delay. The Courts have made it clear that while some delay in bringing a claim for retroactive spousal support may justified, there must be a compelling reason for the delay. As stated in Karlovic (above, at para. 62):

“That statement appears to imply that as long as there is a reason for the delay or the events since the delay occurred, the delay will not affect the claim. While the effect of delay on a spousal support claim is a discretionary decision, the case law shows that the applicant for support must offer more than a reason for the delay. That party must offer a compelling reason for the delay.”

Key Take Away

A compelling reason for the delay will be further defined in the next few years. The recent Supreme Court of Canada decisions in Michel and Colucci stress the importance of the Courts looking at the broader societal and “access to justice” reasons for delay, including the feminization of poverty, physical or mental illness, cost of litigation, and domestic violence. As the law develops we believe these may well all be compelling reasons for delay in bringing a claim for spousal support.

Retroactive Spousal Support and Delay
MacLean Law is a national family law firm with offices across Canada. Our lawyers have received a number of awards and Lorne MacLean, QC was named a Top 25 Canadian Lawyer

Contact our spousal support lawyers today to obtain or defend against any spousal support claims.