Karlovic v. Karlovic has a useful discussion of the impact of delay in bringing an application for spousal support:
Delay in Bringing an Application for Support
[56] It has been oft repeated that there is no limitation period for an application for spousal support. However extreme delay in bringing the application can defeat or diminish such a claim. As Chappel J. of this court put it in Fyfe v. Jouppien, following an exhaustive review of the relevant factors in determining whether delay should defeat or reduce a spousal support claim:
…excessive delay in seeking spousal support by a party may raise questions as to whether there was an ongoing reasonable expectation of support, and whether there was actual need on the part of the claimant spouse.
[57] Chappel J. set out a number of important factors that a court must consider in the face of extreme delay. They include financial need arising after separation, financial interdependence, both before and particularly after separation, and the length of the delay in making the claim.
[58] While delay may indicate that the parties have taken steps to unravel their financial interdependence, that is not always the case. As Chappel J. stated at para. 54(d):
On the other hand, the passage of time may be given less weight in the analysis of entitlement if, despite the passage of a number of years, the parties have not effected a clean break, and their relationship continues to be characterized by mutuality and interdependence. In such circumstances, an objective analysis of the situation may lead to the conclusion that the expectation of mutual support and dependency arising from the marriage relationship has continued.
[59] In Fyfe, Chappel J. found entitlement after a six year delay in seeking spousal support for three main reasons: the marriage was a long term one, the recipient had developed cancer following separation, and in the interim the parties were “quite simply, mutually working their affairs out.”[23]
[60] In two other cases that the husband relies upon, Kapunovic v. Cukotic- Kapunovic[24] and Phip v. Philp[25] a lengthy delay can also be explained by a serious mental illness, particularly in the absence of prejudice.
[61] In Walker v. Greer,[26] Tucker J. of this court gave little effect to a ten year delay in seeking support. He stated, without reference to any authorities that:
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.
[62] That statement appears to imply that as long as there is a reason for the delay or the events since the delay occurred, the delay will not affect the claim. While the effect of delay on a spousal support claim is a discretionary decision, the case law shows that the applicant for support must offer more than a reason for the delay. That party must offer a compelling reason for the delay.
[63] In Walker v. Greer, each party had a high school education and each was very involved with their children. However the court found that the mother was the child’s primary caregiver. Each had the children stay with him for an extended period following separation. The factors that appear to have most influenced the court to grant spousal support after a ten year delay were:
- An implicit judicial notice that women in our society earn less than men,
- The fact that the husband made a fair bit more than the mother. But as the court pointed out, that was in part because she made voluntary lifestyle choices that adversely affected her income but reduced her expenses. She moved out of Toronto but could have earned more had she stayed there.
- The wife feared that the Husband would make an equalization claim if she sought spousal support, and
- The wife she wanted to “make it” on her own.
[64] This case points out the extent to which the exercise of discretion can influence the issue of entitlement in a delayed claim for spousal support. Having said that, the court ordered very limited lump sum retroactive support and what appears to be a significantly reduced amount of prospective spousal support.
[65] In van Rythoven v. van Rythoven,[27] Gray J., of this court granted the wife spousal support twelve years after the expiration date for limited term support set out in their separation agreement. Gray J.’s order came eleven years after the dismissal of a motion to vary the separation agreement’s termination date. The agreement called for a total of four years of support after a thirteen year marriage in which the parties had two children. Gray J. found that the delay was only one factor to be considered in the context of factors set out in s. 15.2 of the Divorce Act.
[66] In van Rythoven, the wife’s physical and mental condition following the separation agreement drastically and unexpectedly worsened. At the time of the motion, she was living in poverty, surviving on less than $8,000 per year in ODSP payments. At the time, the husband earned $95,000 per year.
[67] Critically, Gray J. found that the separation agreement did not meet the Miglin[28] test, particularly the second stage of that test. That stage required Gray J. to determine, as he put it, whether “… the substance of the agreement remains in conformity with the principles of s. 15.2 of the Divorce Act today.”
[68] Gray J. made a prospective order at the upper end of the SSAG range. But because of the delay, he chose not to make his order retroactive.
[69] In Howe v. Howe,[29] the wife was unable to offer a satisfactory explanation for a 24-year delay in seeking spousal support after a 13-year marriage. W.J. MacPherson J. found that the wife’s inability to become fully self-sufficient was not a result of the marriage. Her alcoholism was not accepted as an appropriate explanation, particularly in light of her failure to take steps to confront and ameliorate it.
[70] In trying to discern a consistent pattern in the case law, it seems that the determination of entitlement to support after a significant delay involves a discretionary balancing of the length of the delay and the reasons for it. The longer the delay, the greater the need to offer a compelling explanation for the delay because of the increasing presumption of financial independence and clean break.
[71] On the other hand, the more likely that the recipient was physically or emotionally unable to make an application for their support, or the greater the post separation financial interdependence, the more likely it is that the applicant will be entitled to make the claim.
[72] Even if entitlement is found, a long delay can affect quantum. That was the result in Walker v. Greer, and with regard to retroactivity, van Rythoven. In Quackenbush v. Quackenbush,[30] MacKinnon J. of this court granted spousal support after a ten-year delay but reduced the quantum by 52 – 64% because of the delay. In that case there was a long marriage with financial dependency. The applicant wife offered a compelling explanation for her delay. She suffered from depression following the death of a child. She then subsisted on social assistance.
