Entitlement for spousal support can be contractual, needs-based, or compensatory if one party was disadvantaged by the breakdown of the marriage. Once the court finds entitlement, they consider how long and how much should be paid for spousal support. An order for spousal support can be retroactive as well as ongoing.
In the past, some judges have declined to order retroactive spousal support or ordered a lower amount when there has been substantial delay in seeking spousal support. However, in a recent case, Legge v Legge, 2021 BCCA 365, the Court of Appeal has confirmed that where there is a clear entitlement to spousal support, a court should make a retroactive spousal support award that takes into account both the payor’s circumstances and the objectives of the spousal support, notwithstanding delay.
In this case, the parties separated after an 8-year relationship. The couple had met while the wife was pursuing post-secondary education, and decided to move to Alberta for the husband’s employment. The wife’s education was interrupted while both parties worked. They had a child together, and the wife became her primary caregiver and worked part-time. Following their separation, the wife initiated court proceedings for spousal support among other things, however, she never received a final or interim spousal support order.
Several years later, the husband commenced a divorce and property division action, and the wife counterclaimed for retroactive spousal support. At trial, the judge found that the wife had been disadvantaged by the marriage and also had a needs-based entitlement for spousal support, but that the 10 years since the parties had separated constituted undue delay. As a result, they declined to make a retroactive spousal support award.
On appeal, the court found that the trial judge had given insufficient weight to the wife’s needs and hardship, and thus the Order had failed to meet the spousal support objectives. The Court of Appeal was further persuaded by the recent Supreme Court of Canada Case Michel v. Graydon, 2020 SCC 24, which highlights the many obstacles to access to justice faced by family litigants, and requires courts to consider the reason for any delay in bringing proceedings. As a result, the Court of Appeal awarded the wife a lump sum retroactive spousal support award of $27,000.
Do you think you might have a case for a retroactive spousal support appeal?
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