{"id":835,"date":"2018-10-28T19:05:51","date_gmt":"2018-10-28T23:05:51","guid":{"rendered":"http:\/\/limitations.ca\/?p=835"},"modified":"2018-10-28T19:05:51","modified_gmt":"2018-10-28T23:05:51","slug":"ontario-the-limitation-of-spousal-support-applications","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=835","title":{"rendered":"Ontario: the limitation of spousal support applications"},"content":{"rendered":"

Karlovic v. Karlovic <\/em><\/a>has a useful discussion of the impact of delay in bringing an application for spousal support:<\/p>\n

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Delay in Bringing an Application for Support<\/h3>\n

[56]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0It 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\u00a0Fyfe v. Jouppien<\/em>, following an exhaustive review of the relevant factors in determining whether delay should defeat or reduce a spousal support claim:<\/p>\n

\u2026excessive 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.<\/p>\n

[57]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Chappel 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.<\/p>\n

[58]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0While 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):<\/p>\n

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.<\/p>\n

[59]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0Fyfe,<\/em>\u00a0Chappel 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 \u201cquite simply, mutually working their affairs out.\u201d[23]<\/a><\/p>\n

[60]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In two other cases that the husband relies upon,\u00a0Kapunovic v. Cukotic- Kapunovic[24]<\/strong><\/a>\u00a0<\/em>and\u00a0Phip v. Philp[25]<\/strong><\/a><\/em>\u00a0a lengthy delay can also be explained by a serious mental illness, particularly in the absence of prejudice.<\/p>\n

[61]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0Walker v. Greer<\/em>,[26]<\/a>\u00a0Tucker J. of this court gave little effect to a ten year delay in seeking support. He stated, without reference to any authorities that:<\/p>\n

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.<\/p>\n

[62]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0That 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.<\/p>\n

[63]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0Walker v. Greer<\/em>, 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\u2019s 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:<\/p>\n