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The Factor of Delay in Family Law

November 26, 2021

Ontario

,

Canada

Issue

Does a spouse's delay in seeking spousal support disentitle them to support?

Conclusion

Time delay does not bar a claim for support provided that there is reason for the delay and the events that have transpired since the delay. (Walker v. Greer)

While delay is a factor to be considered, it is not fatal to a claim for spousal support. (MacDonald v. Langley)

Although an application for a spousal maintenance may be dismissed because of delay, such a dismissal will not occur unless the evidence shows that the delay is unreasonable, having regard to such factors as the explanation for the delay and the events that have transpired during the delay, including whether the applicant has made reasonable efforts to achieve economic self-sufficiency. (Badrinarayan v Badrinarayan)

Delay must be considered in the context of the dependent spouse's efforts to achieve economic self-sufficiency during that time, as well as whether the lack of economic self-sufficiency arises from the marriage, or from other unrelated factors. Delay is not an isolated factor in family law. The factor of delay is just as much effected by the principles enunciated in Moge as are other principles that have been re-assessed in the light of that case. As stated in Bracklow, the court must balance all the objectives under the Act, including allowing a spouse to move on, without the unwelcome surprise of an unexpected claim for spousal support. (Greaves v. Greaves)

In Walker v. Greer, the parties were married for 18 years and had two children. The wife brought her application for spousal support 10 years after the parties were separated and 8 years after their divorce. The husband lost his job shortly after the separation and lived off of a severance payment and employment insurance for approximatlely two years before finding another job. Tucker J. described the marriage as a "modern" traditional marriage where the wife is the primary care giver and the secondary wage earner. While the wife had worked throughout the marriage, she typically earned between $25-40,000 per year while the husband earned over $100,000 per year at the time the parties separated. A lump sum payment of $15,000 plus ongoing spousal support of $900 per month was ordered.

In Quackenbush v. Quackenbush, MacKinnon J. granted interim spousal support despite the Applicant’s 23-year delay in seeking support. The Applicant had a permanent disability and was unable to maintain employment. She was also unable to work during the parties’ 20-year marriage because she was the caregiver to the parties’ son, who suffered from muscular dystrophy until his death. Because of the lengthy delay, and the fact that the Respondent had restructured his financial affairs, the interim support ordered was less than half the amount that would be mandated by the Spousal Support Advisory Guidelines.

In Greaves v. Greaves, the parties separated in 1991 following a 22 year marriage that involved physical violence. Thereafter, the wife lived in subsidized housing with the two youngest children. The oldest child left home shortly before the separation. In 1996, the parties resumed some kind of relationship, including ongoing sexual relations. The wife would also return to the family home to cook and clean for the husband. The husband paid no child support for his children, had rental income for some periods of time, which he did not share with his wife, had exclusive use of the matrimonial home without payment of any compensation to his wife, and paid her no spousal support for 12 years. In 2003, the husband applied for divorce and the wife applied for spousal support. Mesbur J. found that the 12 year delay, in the circumstances of this case, did not affect the wife's entitlement to spousal support.

Law

In Walker v. Greer, 2003 CanLII 64331 (ON SC), the parties were married for 18 years and had two children. The wife brought her application for spousal support 10 years after the parties were separated and 8 years after their divorce. The husband lost his job shortly after the separation and lived off of a severance payment and employment insurance for approximatlely two years before finding another job. Tucker J. described the marriage as a "modern" traditional marriage where the wife is the primary care giver and the secondary wage earner. While the wife had worked throughout the marriage, she typically earned between $25-40,000 per year while the husband earned over $100,000 per year at the time the parties separated. A lump sum payment of $15,000 plus ongoing spousal support of $900 per month was ordered:

[35] The law provides time delay does not bar a claim for support provided that there is reason for the delay and the events that have transpired since the delay. In this case at the time of separation Mr. Greer was unemployed and in the opinion of Ms. Walker barely able to make child support payments without consideration of spousal support.

[36] In addition Ms. Walker testified that she was left with the impression that if sought support for her husband she could be faced with a counter suit for an equalization payment. Although the figures used by the lawyer appear to be incorrect, it was apparent from her testimony that he left her concerned about the situation. In addition she stated that in part she wanted to make it on her own. There was no release of spousal support. Since the separation she has voluntarily made lifestyle changes, which have reduced her income and perhaps her costs. In all the circumstances I find that the delay in seeking the relief is not a bar to the relief. We must then consider if support is payable based on a compensatory and/or needs based analysis.

[37] S.15.2 of the Divorce Act provides for spousal support, which by definition includes support to a prior spouse. The factors are set out in 15 (4) to be taken into consideration are the condition, the means, needs and other circumstances of each spouse, including

(a) length of time spouses cohabited

(b) functions performed by each spouse during cohabitation and

(c) any order, agreement or arrangement relating to support of either spouse.

Subsection 6 sets out the objectives that an order under S. 15.2(1) should meet including addressing inequities arising from marriage or its breakdown, apportionment of financial consequences of child care, relieving economic hardship and insofar as possible promoting economic self sufficiency.

[38] It is apparent that during the marriage the wife was voluntarily a secondary wage earner scheduling her life around her husband and children. Both parents participated in child rearing but I find the primary care giver was the wife. She remained primarily responsible for the children ever after the separation up until 1997, which her son moved in with the father. Although she is employed full time her salary is less approximately $27,000.00 while her husband has consistently earned over the past few years over $100,000.00. There was no equalization here. I am aware that lump sum support is not a back door to remedying inequities in equalization. I simply note the lack of funds in the hands of the wife at the time of separation to assist her to redress economic inequities.

[39] The wife has chosen her present career in Simcoe and it has resulted in the salary now received although it may be commensurate with the equivalent of a larger salary in Toronto given expenses. In terms of goals set by her during the marriage terms of a career I find that she was not prevented from achieving by virtue of the marriage but rather as a result of choice on her part. She was able to successfully obtain a real estate licence achieving a top mark.

[40] We are entitled to consider all circumstances. If she had sought spousal support in 1994 once Mr. Greer had returned to employment with all other facts remaining the same there is no doubt she would have been awarded it. Although the delay has caused Mr. Greer hardship as he has built his new life and planned his expenses based on not having any further obligation to his wife this hardship must be viewed in light of the fact that for many years he has not made spousal support payments and the economic hardship suffered by the wife which I have found.

[41] The husband has had large expenses in terms of educating the two children. He is to be commended for that however it is also apparent from his financial statement that he continues to lead a lifestyle of expending all of his income. In addition at this point the children's education is complete. Although he testified that he has not had a holiday in years and that he does not own a home, his income is in excess of $84,000.00 and with bonus in excess of $100,000.00 and I find that lack of assets are a direct result of his lifestyle not his lack of funds. Mr. Greer apparently does not have available funds to make a lump sum payment however given his income he would have the ability to borrow funds to make such a payment.

[42] I also find that the marriage resulted in an economic disadvantage to Ms. Walker. She has no assets and earns $27,000.00 a year and at present has no prospects of changing this situation.

[43] I find his base income to be $84,000.00 and her base income to $27,000.00 a year. In all circumstances I find her to be entitled to spousal support and that there is no reason at the present to time limit the support as there is not at this point a realistic possibility that her income given her age and situation will ever increase. Although she talked of once furthering her education there no real or firm plans in that regard nor as I say does this seem a realistic possibility. However if circumstances change, Mr. Greer would be able to apply for a reduction.

[44] The plaintiff requested support in the amount of $2,500.00 or $3,000.00 per month. The respondent sought an order for no support or in the alternative $500.00 a month. The amount sought by the applicant would result in a situation where the incomes of the parties would be somewhat equivalent. I do not find that to meet the objectives of the Act we require an equalization of income. Although marriage may give rise to obligations on the part of each party it does not require one party to address the economic reality of the disparity of incomes between females and males. It is however required given the needs and means of the parties that assistance to try meet the needs by way of monthly support. In all the circumstances and given their income and expenses I find that a lump sum of $15,000.00 would in part redress the economic disadvantage suffered by the applicant as a result of the marriage and I ordered it to be paid 6 months from the date of this order to allow Mr. Greer time to arrange for the same. In addition there will be spousal support in the amount of $900.00 payable commencing June 1, 2003. I do not make it retroactive before that date given the obligations undertaken by Mr. Greer in educating his children and its effect on his income up to May 2003.

In MacDonald v. Langley, 2014 ONCJ 448 (CanLII), the parties lived together while married for 25 years. The husband left and moved to Toronto while the wife remained in the family home in Nova Scotia. The application for support was heard pursuant to the Interjurisdictional Support Orders Act and entitlement to spousal support was determined pursuant to Ontario's Family Law Act. Sherr J. considered the wife's 9 year delay in bringing the application for spousal support in determining her entitlement to spousal support and in fixing the quantum of spousal support. Spousal support was ordered at the lower end of the range recommended by the Spousal Support Advisory Guidelines for reasons unrelated to the delay:

[13] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux 2009 ONCA 569 (CanLII), [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow, 1999 CanLII 715 (S.C.C.).

[14] The applicant established entitlement to support on both a compensatory and non-compensatory basis.

[15] The evidence indicated that the applicant was the primary caregiver for the parties’ children and managed the household while the family lived together. When the children were very young, she stayed out of the workforce, at times, to raise them. Further, there were several years where she solely supported the family to permit the respondent to take courses to improve his earning potential. She did this when the respondent took courses to obtain his degree in engineering and to become a correctional officer. Between raising the children, managing the household and working to support the respondent through his education, the applicant had little opportunity to upgrade her own education or work skills. Her income-earning potential was compromised due to these roles. She has suffered an economic disadvantage as a result.

[16] The respondent did not challenge the applicant’s evidence about her ability to earn income. He did complain that she spent huge amounts of money on bingo. He also pointed out that she lives almost expense-free in their jointly owned home, while he has to pay $900 per month for rent. This evidence will be considered when determining the amount of support, but is insufficient to disentitle the applicant to support. This is a long-term marriage and there is a significant disparity in the parties’ incomes. The applicant has the need for spousal support and the respondent has the ability to pay it. The applicant has been financially disadvantaged by the breakdown of the marriage.

[17] The court also considered whether the applicant’s delay in bringing her application disentitled her to support. The court finds that it does not. Such a finding would create a financial windfall for the respondent that is unwarranted. He has been advantaged by paying far less support to the applicant than would have been ordered if she had promptly pursued a support claim. While delay is a factor to be considered, it is not fatal to a claim for spousal support. See: Hillhouse v. Hillhouse (1992), 1992 CanLII 5983 (BC CA), 43 R.F.L. (3d) 266 (BCCA); Walker v. Greer 2003 CanLII 64331 (ON SC), [2003] O.J. No. 3396 (SCJ); van Rythoven v. van Rythoven 2009 CanLII 45844 (ON SC), [2009] O.J. No. 3648 (SCJ).

[...]

[28] The authors of the SSAG write in Section 6.7 that the SSAG start from the practical position that the relevant time for determining the incomes of the spouses is the date of the hearing or the date of the agreement, at both interim and initial stages, but that adjustments might be necessary where there has been delay between the time of separation and the hearing. They write:

The without child support formula gives theoretical emphasis to the marital standard of living, as measured by the spouses’ incomes at or near the date of separation. The marital standard of living during cohabitation ought not be affected by a substantial post-separation increase in the payor’s income.

[29] The impact of a post-separation increase in income is case-specific. Here, the court finds that it is appropriate to use the respondent’s present income to determine the SSAG amounts for the following reasons:

a) The respondent provided no evidence of any significant post-separation increase in income. The income tax statements that he provided showed a consistent level of income since 2011.

b) The respondent has remained at the same job since the separation. Even if there was some increase in the respondent’s post-separation income, it does not warrant any adjustment as the applicant has a significant compensatory claim for spousal support. See: Thompson v. Thompson 2013 ONSC 5500 (CanLII), 2013 CarswellOnt 12392 (SCJ).

c) The respondent has had the benefit of paying far less monies to the applicant since the separation than he would have paid if she had made her spousal support claim in a timely manner.

[30] Based on the respondent’s income of $56,468 per annum, the SSAG formula sets out figures of support at $1,172 per month at the low end of the range, $1,366 per month in the middle of the range and $1,456 per month at the high end of the range, with the duration of the order to be indefinite, subject to review and variation.[1]

[31] The court will order spousal support of $1,200 per month starting on May 1, 2014. This is towards the lower end of the range because the respondent’s housing expenses are higher than the applicant’s. The applicant has the benefit of living in the parties’ jointly owned property. This property is mortgage- free and the applicant’s housing needs are modest compared to the respondent’s. If this situation changes in the future (for example, the respondent requires the property to be sold and the applicant’s housing costs change) this will likely constitute a material change in circumstances that would justify a variation to the award.

In Badrinarayan v Badrinarayan, 2017 ONSC 2934 (CanLII), Trimble J. discussed how the quantum of spousal support is to be calculated and the effect of delay in seeking it on the calculation. Trimble J. held that delay, as a general rule, does not affect entitlement unless the delay is unreasonable. Although an application for spousal maintenance may be dismissed because of delay, such a dismissal will not occur unless the evidence shows that the delay is unreasonable, having regard to such factors as the explanation for the delay and the events that have transpired during the delay, including whether the applicant has made reasonable efforts to achieve economic self-sufficiency. As to quantum, while the SSAGs are guidelines, they should not be departed from except in unusual circumstances:

[64] Mr. Badrinarayan argues that in delaying claiming support for the time she lived with Mr. Davey, Mrs. Badrinarayan disentitled herself to support on the facts of this case since the delay was long, and not adequately explained. Further, the delay is evidence of the contract that Mr. Badrinarayan says existed. If support is awarded it should be at half the low end of the range. He cites as support for his propositions HJK v. JEB [1997] B.C. J. No. 2705 (B,C.C.A.), Broumas v. Broumas, 1998 ABQB 598, Greaves v. Greaves, 2004 CanLII 25489 (ON SC), [2004] O.J. No. 2522 (S.C.J.) , Howe v. Howe, 2012 ONSC 2736, Walker v. Greer, 2003 CanLII 64331 (ON SC), [2003] O.J. No. 3396 (S.C.J.), Archibald v. Archibald 2000 BVSC 1219, Rezel v. Rezel, 2007 CanLII 12716 (ON SC), [2007] O.J. No. 1460 (S.C.J. ), Morgan v. Morgan, 2006 NLTD 6, Quackenbush v. Quackenbush, 22013 ONSC 7547 (S.C.J.)..

[65] Delay, as a general rule, does not affect entitlement unless the delay is unreasonable. As the Court said in Kripotos v. Kripotos, 2004 BCSC 37 (CanLII):

[102] Although an application for a spousal maintenance may be dismissed because of delay, such a dismissal will not occur unless the evidence shows that the delay is unreasonable, having regard to such factors as the explanation for the delay and the events that have transpired during the delay, including whether the applicant has made reasonable efforts to achieve economic self-sufficiency. See: Hillhouse v. Hillhouse, 1992 CanLII 5983 (BC CA), [1992] B.C.J. No. 2409 (C.A.); Archibald v. Archibald, [2000] B.C.J. No. 1660 (S.C.); and Olsson v. Olsson, [1992] B.C.J. No. 2516 (S.C.).

[66] In Kripotos, the parties were separated for 5 years by the time of trial, and the application was commenced two years before trial. The wife’s explanation for delay was found to be reasonable in that the husband paid support for a period, failed to make disclosure for a time, she depleted her capital. She started to take a course in accounting to improve her skills but could not complete it due to financial circumstances.

[67] In this case, I accept Mrs. Badrinarayan’s explanation for the delay. On the one hand, she lived with another man. She lived off her capital to an extent. When her new relationship failed, she obtained at least one contract position. Further, in not claiming support (to which Mr. Badrinarayan agrees she would have been entitled had she claimed it immediately after the separation), she has saved Mr. Badrinarayan a great deal in spousal support.

[68] I reject Mr. Badrinarayan’s claim that Mrs. Badrinarayan is disentitled to spousal support because of delay. Delay still is relevant to quantum and may reduce it (see Dingle v. Dingle, 2010 ONCJ 731, add’l reasons at 2010 ONCJ 734), which I address below.

[...]

[88] The SSAGs suggest that the duration of support is indefinite.

[89] In Heimsoth, supra, the Court held that delay was addressed by reducing the amount of spousal support. It held that the duration should continue to be indefinite. In similar circumstances, the support may also be time limited (see Walker Bodnarek v. Bodnarek, 2005 SKQB 462). In a long term marriage, where the dependent spouse is unlikely to achieve self-sufficiency in the foreseeable future, support was indefinite (see Martin v. Martin (2011) 2006 CanLII 81802 (ON CA), 81 O.R. (3d) 503 (C.A.).

[90] In this case, I have no doubt that but for her removal from the work force for a number of years, Mrs. Badrinarayan would have been self-sufficient by now. Her voluntary self-removal from the work force, and the effect of that withdrawal on her self-sufficiency, is not something that Mr. Badrinarayan should be responsible for. On the other hand, self-sufficiency is not a self-standing goal. It should been seen in the context of the relationship and other goals of support.

[91] In this case, I must consider not only the need to promote Mrs. Badrinarayan’s self-sufficiency, I must also address the hardships arising from the breakdown of the marriage, which have been deferred because Mrs. Badrinarayan re-partnered for a while.

[92] Mrs. Badrinarayan needs time to adjust to self-sufficiency to adjust to her income earning capacity, and to adjust to a new standard of living having enjoyed a much greater standard of living during the marriage. Both parties, in argument, agreed that had she sought support at the time of separation, she likely would have been entitled to it. Mr. Badrinarayan has had the benefit of not paying spousal support since the breakdown of the marriage, which he admits he would have been required to pay. On the facts of the case, Mrs. Badrinarayan’s entitlement to support at the date of separation, had she sought it, would have been on a needs basis, and support would have been awarded to help her transition to self-sufficiency.

[93] Where spousal support entitlement is non-compensatory and therefore ordered to relieve against the economic consequences of the end of the marriage and to allow the recipient to adjust to economic independence and self-sufficiency, time limited support may be reasonable (see Bracklow v. Bracklow, (1999) 1999 CanLII 715 (SCC), 1 S.C.R. 420). The husband asks that I make a sort, time limited support order.

[94] I must also consider that Mrs. Badrinarayan withdrew from the work force voluntarily thereby impairing her ability to achieve self-sufficiency. The consequences of her withdrawal from the work force for 4 to 5 years are Mrs. Badrinarayan’s to shoulder, not Mr. Badrinarayan’s.

[95] I have every confidence that Mrs. Badrinarayan will be able to return to the work force and earn $47,000 p.a. I have every confidence that she will achieve self-sufficiency. To give her incentive to do so, I order that Mrs. Badrinarayan’s entitlement to spousal support is to be reviewed, at the instance of either party, not earlier than 3 years from the date of these reasons.

In Greaves v. Greaves, 2004 CanLII 25489 (ON SC), the parties separated in 1991 following a 22 year marriage that involved physical violence. Thereafter, the wife lived in subsidized housing with the two youngest children. The oldest child left home shortly before the separation. In 1996, the parties resumed some kind of relationship, including ongoing sexual relations. The wife would also return to the family home to cook and clean for the husband. The husband paid no child support for his children, had rental income for some periods of time, which he did not share with his wife, had exclusive use of the matrimonial home without payment of any compensation to his wife, and paid her no spousal support for 12 years. In 2003, the husband applied for divorce and the wife applied for spousal support. Mesbur J. found that the 12 year delay, in the circumstances of this case, did not affect the wife's entitlement to spousal support:

[61] There are a number of cases dealing with the effect of delay on an application for support. In some cases [8], delay has resulted in a denial of support. In others [9], it is simply one of the factors the court has considered. Delay must be considered in the context of the dependent spouse's efforts to achieve economic self-sufficiency during that time, as well as whether the lack of economic self-sufficiency arises from the marriage, or from other unrelated factors. The Court in Philp recognized the tension between the prejudice to potential payors, who must face claims that they legitimately thought were long gone, and the needs of dependent spouses that fall within the factors and objectives under s.15.2 of the Act which remain unmet. As the Court put it at 303:

Delay is not an isolated factor in family law. The factor of delay is just as much effected by the principles enunciated in Moge as are other principles that have been re-assessed in the light of that case.

Philp was decided before Bracklow and was based on the law of spousal support as stated in Moge. Bracklow, however, has broadened the scope of spousal support by indicating that there is no one model or philosophy of spousal support; all must be considered equally. Also, need alone now may be sufficient to found entitlement.

[62] As stated in Bracklow, the court must balance all the objectives under the Act, including allowing a spouse to move on, without the unwelcome surprise of an unexpected claim for spousal support. The other objectives are those set out in s.15.2 of the Act. I am also mindful of the fact that Mr. Greaves continued to have an ongoing relationship with his wife. He saw her often. He gave her no money. He must have known about her precarious circumstances, and yet did nothing, other than enjoy a sexual relationship with her, and allow her to cook and clean for him. He cannot really be surprised by the claim for support. This is particularly so when he continued to provide medical coverage to her under his health plan until he commenced this proceeding. Now Mrs. Greaves must cover her expensive medication herself.

[63] Having considered all of the factors and objectives, as well as the reasons for Mrs. Greaves’ delay, I am of the view she is entitled to support. Given the relative incomes of the parties, a support order of $700 per month is appropriate in these circumstances. It will provide each of the parties with similar disposable income. Mrs. Greaves did not seek interim support. Since she did not, I decline to make the support order retroactive. Support payments will commence with effect June 1, 2004.

In Quackenbush v. Quackenbush, 2013 ONSC 7547 (CanLII), MacKinnon J. granted interim spousal support despite the Applicant’s 23-year delay in seeking support. The Applicant had a permanent disability and was unable to maintain employment. She was also unable to work during the parties’ 20-year marriage because she was the caregiver to the parties’ son, who suffered from muscular dystrophy until his death. Because of the lengthy delay, and the fact that the Respondent had restructured his financial affairs, the interim support ordered was less than half the amount that would be mandated by the Spousal Support Advisory Guidelines:

[15] Courts treat support claims by sick or disabled spouses differently than by other spouses. The starting point is Bracklow. The Court must look at the condition, means, needs and other circumstances of each spouse. The balancing includes, but is not limited to, the length of cohabitation, the functions that each spouse performed, and any order agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. A court is required to look at all of the factors in light of the stipulated objectives of support and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

[16] The Quackenbush marriage was a long-term marriage. Mrs. Quackenbush was financially dependent on her spouse during marriage and would be, subject to a consideration based on delay, entitled to support.

[17] I find that Mrs. Quackenbush is a disabled spouse who cannot maintain employment and needs support to maintain her reasonable frugal lifestyle. There is no realistic possibility she will achieve self-sufficiency. Support for a disabled spouse is meant to redress need and prevent a spouse who cannot maintain himself or herself from becoming a public charge. Here the Applicant is such.

[18] Mrs. Quackenbush’s failure to make a timely application reasonably created an understanding on the Respondent’s part that no such claim would be made. Events both before and subsequent to the separation and divorce put Mrs. Quackenbush into a position of having a need for support. Her need stems from her long-standing physical, emotional and financial hardship. It is material that she is publicly supported by the taxpayers. On an interim basis, spousal support is appropriate and will be ordered. Although I find the delay to be unreasonable, it does not result in no interim order being made. That said, I keep in mind that I am considering an interim (italics mine) support request 23 years after the separation. Not only has Mr. Quackenbush restructured his affairs and aged, he has taken on the financial responsibility of a second wife while reasonably believing the Applicant had abandoned her claim for support.

[19] Either a spouse or a former spouse may apply for a support determination under the Divorce Act. There is no limitation period for such an award under that Act, but a significant and unexplained delay may influence a court’s decision to award support. It has influenced mine.

[20] The delay in this case has been extreme. The explanations and excuses advanced for it result in a reduction of support well below the low end of the Guidelines, no retroactive commencement date, and no indexation. In these highly unusual circumstances, it would be unconscionable to slavishly adhere to the Spousal Support Advisory Guidelines (SSAG). I rule that the amount of support to which Mrs. Quackenbush is now entitled should be substantially redu

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