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Marital support warrant – issued ten years after divorce – gives new meaning to the phrase ‘a diamond is forever’

Spousal maintenance is one of the most discretionary areas of family law. Spousal maintenance is one of the most discretionary areas of family law. Photo by Getty Images/iStockphoto

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Spousal maintenance is one of the most discretionary areas of family law. The problem can become even more complicated when a spouse relies on retroactive support going back a decade.

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It is common in legal proceedings to request that spousal maintenance be paid from the date of divorce. Since it can take several years after court proceedings are initiated and before a trial, the courts have the power to impose temporary marital alimony, which is usually in effect until a final settlement or trial.

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If a request for provisional relief is not filed by the claimant spouse, the usual advice is that the family be given to the paying customers to remain silent. It is up to the recipient to prove that they are entitled to spousal maintenance, and the longer it takes to file a spousal maintenance claim, the less likely it is that spousal maintenance will be ordered.

But a 2021 case from the British Columbia Court of Appeal has made family lawyers think twice about their usual advice.

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In the Legge v Legge case, the parties lived together for 8.5 years and had one daughter about whom there were very conflicting disputes. In a 2010 provincial court proceeding, the woman claimed both child and spousal maintenance, but did not pursue her claim for spousal maintenance. After a number of years of litigation, the upbringing problems were resolved and the daughter lived mainly with the mother. The legal proceedings did not proceed.

In 2020, the husband, who still lived in the parties’ home with the daughter who had moved in with him, started proceedings before the Supreme Court of the Netherlands. He asked the court to deal with property, child support and a divorce. The woman asked for a lump sum for spousal alimony in excess of $100,000.

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The woman justified her delay in seeking spousal support because of their lengthy parenting procedures and her limited legal resources. Her claim was based on the priority given to the husband’s work over her college education and her role during the marriage as the daughter’s primary caretaker. The daughter also lived with the mother for a number of years after the divorce. The man’s annual income ranged from about $94,000 to $125,000, while the woman’s was between about $3,300 and $32,000.

The trial judge ruled that the woman was entitled to spousal support, both compensatory (based on their role during the relationship) and non-compensatory (her needs), but there was no reasonable excuse for her 10-year delay in filing a claim. .

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The investigating judge took into account her needs, the payer’s behaviour, the reasons for delay and the difficulties for the payer, including the fact that a retroactive support order dating back many years complicates financial planning and the payer is in financial difficulties can bring. In addition, he considered the need for the claimant spouse to file her claim within a reasonable time.

Ultimately, the judge ruled that granting spousal support retroactively a decade after the relationship ended would effectively redistribute family property.

While the BC appeals court acknowledged that the courts of appeals are held with considerable reverence to give judges the discretionary support issue, it nevertheless overturned the examining magistrate’s decision.

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Changes to the Divorce Act are a major shift when it comes to the roles and responsibilities of spouses toward their children.

Updated Divorce Law Emphasizes Parental Responsibilities Over Rights to Children

In Canada, child and spousal support is determined on the basis of income.

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The Court of Appeal ruled that if the spouse had established a “clear entitlement” to alimony, had experienced post-divorce economic hardship and continued to be disadvantaged at trial, “it would be unusual for a court not to grant spousal maintenance if the financial means allow it. despite the delay. A refusal of spousal maintenance would not meet the legal objectives.”

In making this finding, the court relied on the Supreme Court’s decision in Michel v Graydon, which stated that “women will often experience financial, occupational, temporary and emotional disadvantage … access to justice in family law is not always possibly due to the high cost of lawsuits.In this larger societal context, women who are given custody (as the woman did in Legge) are often in a ill-positioned position to assess and act on their co-parent’s financial situation.”

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The court ruled that the judge in the first instance had placed too much emphasis on the woman’s postponement and too little on the circumstances that gave rise to the woman’s claim. In addition, the trial judge considered the wife’s $107,000 retroactive spousal support claim to be an “all or nothing” claim, while a more “holistic” and “flexible” view should have been applied.

The Court of Appeal acknowledged that the man’s resources were somewhat limited and that ordering the full amount requested by the woman would make it difficult for him, especially given the 10-year delay. Because there was a limited amount of family property available for distribution, the court chose to order the husband to pay a lump sum of $27,000 to the wife for retroactive support.

This relationship lasted only 8.5 years. The spousal support order — created a decade after the divorce — gives new meaning to the phrase “a diamond is forever.”

Laurie Pawlitza is a senior partner in the family law group at Torkin Manes LLP in Toronto.

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