When do you have to apply for spousal support?


If you are not married and your claim for spousal support is pursuant to the BC Family Law Act, you must apply within one year of separation. If you are married and your claim for spousal support is pursuant to the Divorce Act, there is no time limit to apply for spousal support.

This issue was front and centre in the recent case of Biggs v. Biggs, 2016 BCSC 1731 which was decided by Justice Hyslop in Salmon Arm. In that case, the husband and wife were married in 1989, they separated in May 2000 and applied jointly for a divorce in 2004 which was granted in January 2005.

Immediately following their separation, the husband and wife entered into a separation agreement in which they dealt with division of property, child custody and child support issues. Neither party had independent legal advice prior to entering into the agreement, and there was no release of claims for spousal support.

Following the parties’ separation and divorce, the husband’s income increased consistently over the years but he did not disclose that fact to the wife. In 2014-2015, the wife applied for, and was awarded, retroactive child support based on the husband’s actual income. Following the child support award, the wife brought a claim for spousal support going back to July 2013. It was argued by the husband that the separation agreement precluded the wife from making a spousal support claim, but it was ruled that it did not.

The wife argued that she was entitled to spousal support on both a compensatory basis and non-compensatory (or need) basis. Justice Hyslop first considered the parties’ agreed division of property pursuant to the separation agreement and determined that it was a neutral factor because the parties had divided their assets equally.

Justice Hyslop went on to consider the wife’s claim to spousal support on a compensatory basis. In dismissing this claim, Justice Hyslop found that the evidence did not establish that the wife had sacrificed her own career opportunities in caring for the children. She rejected that wife’s role in the marriage caused economic disadvantages to her. In fact, Justice Hyslop found that both parties cared for the children and that this continued after separation.

With respect to the wife’s claim based on a non-compensatory basis (or need), Justice Hyslop found that the wife was living beyond her means. She said that the wife had confused “need” with the “want” to live a certain lifestyle. Justice Hyslop noted that the husband is not required to support the claimant’s preferred lifestyle. Further, although the husband’s lifestyle is relevant to the analysis, it must be noted that the husband’s new wife earns as much money as he does and therefore, he and his new wife can afford a better lifestyle than the wife. Finally, since separation the wife had been living a lifestyle which includes frequent travel and spending well beyond her means and simply because the husband’s lifestyle is better does not mean that the wife has a need.

The wife’s spousal support claim in this case was brought 15 years after the parties separated and 10 years after they were legally divorced. To explain the delay, the wife argued that she was unaware that she would be entitled to spousal support. Justice Hyslop did not entertain this argument pointing out that the court presumes that people know the law. Rather, she found it more likely that the wife originally thought that the husband couldn’t afford spousal support so she didn’t pursue it until she found out his actual income in the process of obtaining retroactive child support.

Justice Hyslop noted that the wife has been financially independent of the husband for 15 years since separation (other than child support), and that she has been travelling and living a lavish lifestyle. Although the law is clear that there is no deadline and the court cannot consider a defense of laches, Justice Hyslop pointed out that the court may consider the delay in making a determination as to the need of the payee.

For more blog posts on Spousal Support, please see our blog Does Spousal Support End When New Relationships Start?.

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