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MAINTENANCE AND SUPPORT - Spousal support - Considerations - Compensatory support - Leaving labour market for family responsibilities - Retroactive awards

Wednesday, November 01, 2017 @ 8:38 AM  

Lexis Advance® Quicklaw®
Appeal by the wife from an order requiring the respondent husband to pay $9,400 monthly spousal support retroactive from March 30, 2015, the date on which the wife filed her notice of application for spousal support. The parties married in 1970 and separated in 2011. The 64-year-old wife had no income and did not work outside the home once the parties’ first child was born in 1973, until she began working part-time in 1994. The parties had moved several times for the husband’s job. At the current time, the wife had no realistic prospect of earning significant income due to failing to maintain her dental assistant certification. The husband’s income in 2015 was $231,000. On March 30, 2015, a consent order was made to resolve the remaining property issues and an amount the wife received for the former matrimonial home was to be set off against her claim for retroactive spousal support. The judge found the wife was entitled to support on both compensatory and non-compensatory grounds and ordered the husband to pay $9,400 per month, effective April 1, 2016. Retroactive support of $9,400 per month was also awarded, but only to March 30, 2015, as the wife was obliged to have proceeded with her claim expeditiously to provide the husband with certainty about his obligations. The wife argued the judge erred in not making an order for retroactive support to an earlier date. She submitted that the appropriate date should have been the date of a consent order made at a judicial case conference in 2013. At issue was whether the wife’s delay in filing the application was unreasonable.

HELD: Appeal allowed. The spousal support claim was advanced in the original notice of family claim filed June 21, 2012 and served July 17, 2012. The wife’s delay in filing the application was not unreasonable because the parties had been negotiating property division and support issues in the interim and had agreed to an interim spousal support arrangement in February 2013 without prejudice to the wife’s claim. The judge erred in concluding 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 usual rule for the effective date of support, namely the date proceedings were initiated. The delay before entering the consent order was readily explained by the timing of the husband’s financial disclosure. Thereafter, the parties were confronted with the need to resolve all of the financial aspects of their separation and pending divorce. There was nothing in the record that supported the view that either party was at fault for the time it took to resolve these issues. As soon as the property division matters had settled but no resolution had been reached on support, the wife made the application. Tt was not unreasonable for the wife 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. While in principle the effective date for spousal support should have been the date of service of the notice of family claim (July 12, 2012), the Court accepted the wife’s suggestion that the effective date should reflect the date of the consent order (February 25, 2013). The wife proposed the latter date for practical reasons given the difficulty of resolving the amount of a set-off the husband would be entitled to given expenses he paid before that date. Accordingly, retroactive spousal support was payable from February 25, 2013.

Francis v. Francis, [2017] B.C.J. No. 2049, British Columbia Court of Appeal, D.F. Tysoe, D.C. Harris and G.J. Fitch JJ.A., September 20, 2017. Digest No. TLD-October302017005