In Legge v. Legge, 2021 BCCA 365, the wife appealed an order dismissing her claim for retroactive spousal support. The trial judge dismissed the wife’s claim for spousal support, despite her compensatory and non-compensatory entitlement to support, on the grounds that there had been a delay of almost ten years between the parties’ separation and the adjudication of the claim of spousal support.
The wife testified that she did not bring an application for spousal support earlier in the proceedings because of her impecuniosity, the need to rely on LegalAid, and the initial focus on custody matters. The trial judge did not accept her explanation (para 24).
Butler J.A. endorsed the approach to delay taken in Lee v. Lee, 2011 BCSC 286 and Segura v. Segura, 2020 BCSC 650 (paras 36 – 40). A trial judge must consider the needs of the spouse seeking support both at the time the support should have been paid and at the time of trial.If a spouse has established a “clear entitlement” to spousal support, and that he or she underwent hardship in the past and remains disadvantaged at the time of the hearing to determine spousal support, it would be unusual for a court to make no award for spousal support where financial resources permit, notwithstanding the delay (para 40).
A court should strive to make an award that takes into account the payor’s circumstances but also gives effect to the objectives of spousal support. This can be done by awarding an amount—either by way of lump sum spousal support or reapportionment of property—that reflects a shorter duration of support. It can also be done by awarding prospective support instead of some amount for retroactive support. However, as emphasized in Kerr, a court should take a flexible approach when balancing the countervailing interests to arrive at an award that fulfills the objectives of spousal support and is sensitive to a payor’s hardship (para 40).
Butler J.A. found that the trial judge erred in discounting the wife’s explanation, which was not contradicted, for why she did not bring a support application earlier. The trial judge was wrong to treat her delay as disentitling her to any retroactive award, particularly given her continued economic disadvantage. Further, the judge’s analysis failed to take into account the husband’s contribution to the delay in relation to other outstanding financial issues (paras 42 – 47).
The wife sought retroactive lump sum support based on a duration of 6 ½ years in accordance with the Spousal Support Advisory Guidelines, which equaled $107,610.Butler J.A. ordered the husband to pay a lump sum retroactive spousal support in the amount of $27,000 (para 52). Butler J.A. found that the amount of a lump sum retroactive award must be considerably less than the full amount sought by the wife, in part, because of the hardship such an award would place on the husband, but also because of the delay (para 51).
The amount ordered was based on balancing the relevant factors including the wife’s entitlement to spousal support and her continued disadvantaged situation; the parties’ limited family property; the delay in adjudicating this matter such that an award for prospective support was unrealistic; the fact that after 2015, the wife was in a position to obtain full-time work; and the hardship that the award may occasion to the husband (para 52).