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Retroactive Spousal Support

The purpose of this article will be to analyze  the retroactive spousal support aspect of the case Legge v Legge.

Legge v Legge found its way to the BC Court of Appeal as a result of the wife appealing the decision of the BC Supreme Court dismissing her claim for retroactive spousal support,  At trial, the judge found that the wife had established an entitlement to spousal support on a compensatory and non-compensatory basis, but because of the delay of almost ten years between the date of separation and actual hearing of the claim for spousal support, the trial judge dismissed the retroactive claim.

The parties began cohabiting in January of 2002, married in 2006 and separated in September 2010. The parties had one child born in September of 2008. The husband was the primary income earner while the wife worked various part time jobs and pursued a university degree part time. After the birth of their daughter, the wife primarily cared for the daughter and worked part time.

In October 2010 the wife commenced proceedings in the Provincial Court seeking orders for custody, child support and spousal support. The parties appeared in Provincial Court several times and eventually resolved the parenting arrangements and child support. The claim regarding spousal support was not dealt with in Provincial Court. The husband commenced an action in the Supreme Court of BC in 2014 seeking divorce and orders respecting the child and property division. The wife brought a Counterclaim seeking an order for spousal support. The trial in the action did not occur until 2020.

At the trial, with respect to the claim for spousal support, a finding of entitlement was made on a compensatory basis as a result of the following factors: the wife making sacrifices for the benefit of the husband during the relationship which included the wife supporting the husband during his heavy-duty mechanic apprenticeship; providing child care to their daughter and working part-time. On the basis of non-compensatory support, the wife was found to be entitled, however reasons were not provided. The trial judge had the following concerns about the wife’s claim for spousal support: the wife not commencing  full-time employment when the parties daughter moved full-time with the father; the wife’s entitlement being at an end at the time of trial and the tax consequences that would result with an order for retroactive periodic spousal support; and the substantial delay in pursuing the claim for spousal support after 10 years of separation.

The Court of Appeal was asked by the wife to review the trial judges decision which dismissed her claim for spousal support after finding entitlement in fact existed. The Court of Appeal allowed the appeal and found that the trial judge gave little or no weight to the wife’s needs and hardship that were experienced after separation which resulted in an order that failed to meet the objectives of spousal support. The reasoning also failed to account for the husband’s contribution to the delay in resolving the outstanding financial issues raised in the claim.

To decide the suitability of a retroactive award of spousal support, the factors identified in D.B.S. in relation to child support are relevant. This was noted in Kerr v Baranow, 2011 SCC 10, by Justice Cromwell. In relation to an award of retroactive spousal support, the factors that must be considered in addition to the objectives of spousal support are:

  • The needs of the recipient;
  • The conduct of the payor;
  • The reasons for the delay in seeking support; and
  • Any hardship the award may occasion the payor.

After reviewing the trial judges analysis, the Court of Appeal found that the order made at the trial level did not meet objectives of spousal support. The Court provided the following further considerations that should have been taken into account:

  • The needs of the spouse seeking support at the time the support should have been paid and at the time of trial;
  • Where a “clear entitlement” to spousal support is found along with hardship at the two measuring points, then subject to financial resources, an award should be formulated, notwithstanding delay.
    • A denial of an award of spousal support in such circumstances would not meet the objectives of spousal support;
  • The court should take a flexible approach to arrive at an award that meets the objectives of spousal support and which is also factors in hardship to the payor. It can do this by various creative ways such as: awarding a lump sum amount, reapportionment of property, an award of a shorter duration; a prospective award instead of a retroactive award.

The Court of Appeal then went on to apply principles from Justice Martin’s comments in Michel v Graydon, 2020 SCC 24  to the reasons for the delay in the context of spousal support. The court reviewed the Wife’s reasons for the delay and also reviewed the Husband’s contribution to the delay and balanced the competing factors.

The Court of Appeal found that the trial judge’s decision “incorrectly focused on the effect of such an order, rather than on the purpose of the order, which was to fulfill the objectives of spousal support.”

In conclusion, the Court of Appeal found that too much weight was given to the delay factors during the D.B.S. analysis and too little weight given to the Wife’s circumstances which entitled her to compensatory and non-compensatory support. A lump sum retroactive spousal support award was ordered which represented approximately 25% of the net proceeds from the sale of the parties family home.

Domenic Maio

Barrister and Solicitor

Lawyer practicing in the areas of Family Law, Wills, and Corporate.

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