Retroactive Support Ordered by the Appeal Court Despite 10-Year Delay

 The Legges were together for eight and a half years before they separated in 2010. During their relationship, Cheryl Legge withdrew from university to support her husband Russell Legge’s training as a heavy-duty mechanic and relocated with him several times to accommodate his career. During the relationship Cheryl worked part time and raised their daughter, who was born in 2009. (Legge v. Legge 2021 BCCA 365)

After separation she attempted to complete her university studies, but was never able to complete her degree and worked at low-paying jobs, earning an average of $14,000 a year until 2019, when she earned $32,000.The parties had considerable consumer debt when they parted, with Cheryl taking responsibility for $43,000 of debt and Russell assuming responsibility for $24,000 of debt. Their main asset was a heavily mortgaged home in Princeton, B.C., with little to no equity due to the depressed housing market.

Russell remained in the family home and continued to pay the mortgage with no assistance from his wife. Initially, Cheryl filed an action in the Provincial Court asking for spousal and child support and custody orders. The parties resolved the parenting issues early on and shared custody of their daughter for the first five years of their separation. In 2015 their daughter began living full time with her father.

During the shared custody years Russell paid his wife $706 a month, a sum that did not correspond with his Guideline income which ranged from $64,000 per year to $117,000. Cheryl paid no child support to her husband when their daughter moved to live with him. She was ordered to pay retroactive support of $3,850 to Russell.

The parties divorced in 2019 and in 2020 the family home was sold after several unsuccessful attempts to sell it years earlier. The net proceeds were $107,791. Russell sought reapportionment of the proceeds of sale based on his payment of the mortgage for 10 years. That submission was met with Cheryl asserting that any reapportionment had to take into account that she was without access to the home for that time period, during which Russell also received some rental income, and she sought reapportionment on that basis.

The trial judge divided the parties’ family debt and property equally and dismissed Cheryl’s application for retroactive spousal support which she had calculated to be $107,610. The trial judge reasoned that while Cheryl had established entitlement to both needs-based and compensatory support for the years following the separation, her delay in pursuing her legitimate claims militated against a retroactive award, which the judge characterized as amounting to a redistribution of family property given the limited asset base of the couple.

It was on this point that Cheryl brought a successful appeal. The Appeal Court found that the trial judge gave little or no weight to Cheryl’s needs and the hardship she experienced, and by this failure, his dismissal of her support claim did not meet the objectives of spousal support articulated in the Divorce Act. The court noted that the evidence showed that Cheryl’s personal circumstances were extremely challenging after separation when she moved into her parents’ home and spent several years on welfare. Her income was below the subsistence level until 2019 when she began working in a family business.

While the trial judge referenced Kerr v. Baranow 2011 SCC 10 and DBS v. SRG 2006 SCC 37, he gave short shrift to Justice Thomas Cromwell’s remarks in Kerr, where the justice said:

“…Commencement of proceedings provided clear notice to the payor that support was being claimed and permitted some planning for the eventuality it was ordered. There is thus little concern about certainty of the payor’s obligations.”

Of course, the Appeal Court’s quotation hearkened back to Cheryl’s court filing for spousal support after the parties first separated, noting that Russell could not have been taken by surprise. The Appeal Court also challenged the trial judge’s “all or nothing” approach, whereby he failed to consider a retroactive award of any amount or a small reapportionment to recognize the entitlement he acknowledged. This, together with the trial judge discounting Cheryl’s unchallenged explanation for not pursuing her support claim, namely, that she could not afford a lawyer and that her legal aid entitlement was exhausted on child custody issues, led to the Appeal Court awarding her $27,000 tax-free.

While Cheryl’s delay took centre stage in this case, the Appeal Court noted that Russell failed to proceed expeditiously with the property division and that support and property were inextricably linked, with property division to precede an analysis of support entitlement and quantum.

This article was originally published in The Lawyer’s Daily, a division of LexisNexis Canada.

Lawdiva aka Georgialee Lang

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