By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*

Delay itself does not bar a claim for spousal support as long as there is a reason for the delay and events that have transpired since the delay. Courts must examine whether the reason for the delay is “understandable”, not whether there is a “reasonable excuse” for the delay.

A lack of emotional means has now been accepted by the Supreme Court of Canada (“SCC”) as an understandable reason for delay in seeking child support. Several recent cases have also looked at, and accepted, a claimant’s lack of emotional means as an understandable reason for a delay in seeking spousal support.

Refining the Applicable Factors in Retroactive Child Support Cases

In Michel v. Graydon, 2020 SCC 24 (CanLII), at paras 87 & 111-114, the SCC expanded upon and refined the principles to be considered with respect to retroactive child support as previously set out in D.B.S. v. S.R.G., 2006 SCC 37 (CanLII).

A thorough summary of how the factor of delay was refined can be found in Justice Pazaratz’s decision in Abumatar v. Hamda, 2021 ONSC 2165 (CanLII), at para 55  [emphasis added]:

a. Rather than ask whether there was a “reasonable excuse” for any delay in bringing an application, the court should examine whether the reason for the delay is “understandable”.

b. A delay, in itself, is not inherently unreasonable. The mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted.

c. Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made.

d. A delay is likely to be more understandable if it is motivated by any one of the following reasons:

1. Fear of reprisal/violence from the other parent.

2. Prohibitive costs of litigation or fear of protracted litigation.

3. Lack of information or misinformation over the payor parent’s income.

4. Fear of counter-application for custody.

5. The payor leaving the jurisdiction or the recipient unable to contact the payor parent.

6. Illness/disability of a child or the custodian.

7. Lack of emotional means.

8. Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.

9. Ongoing discussions in view of reconciliation, settlement negotiations or mediation.

10. The deliberate delay of the application or the trial by the payor.

e. Delay by a recipient does not constitute a waiver or abandonment of a right to claim the appropriate amount of support which should have been paid.

f. It is generally a good idea to seek child support as soon as practicable. But it is unfair to bar parents from applying for the financial support they are entitled to, simply because they put their safety and that of their children ahead of their financial needs; or because they did not realistically have the ability to access justice earlier.

g. Even if the delay is unreasonable, this does not negate blameworthy conduct by the payor. Indeed, blameworthy conduct may have caused or contributed to the delay.

h. Delay is not determinative. It is one factor and should not be given undue weight.

Applying the Factor of Delay to Spousal Support Cases

In Jasiobedzki v. Jasiobedzka, 2022 ONSC 1854 (CanLII), Justice Chozik of the Ontario Superior Court of Justice applied the refined factor of delay – and specifically, a lack of emotional means – to a retroactive spousal support claim. Her Honour noted that courts must examine whether the reason for the delay in claiming support is “understandable”, not whether there is a “reasonable excuse” for the delay: paras 60 & 62, citing various cases.

Justice Chozik went on to hold that a lack of emotional means “is no less relevant” to delay in bringing a spousal support claim as it is to delay in bringing a child support claim: para 72.

In that case, the wife was entitled to retroactive spousal support despite her delay of 3 years between effective and formal notice, where she lacked the emotional means to make a formal claim for support. The wife had experienced mental health issues and was grieving her mother’s death in the years after separation, and the parties had some out of court negotiations. Justice Chozik found that the wife was “clearly entitled” to support from the date of separation in 2015, but ordered mid-range support dating back to the date of effective notice in 2017 where the husband had supported her informally by paying some bills and expenses post-separation. However, the quantum she received post-separation was a “fraction” of what she was entitled to, and she had lived in poverty, afraid to ask for more: paras 64-80 & 107.

In a subsequent decision, Jasiobedzki v. Jasiobedzka, 2022 ONSC 5134 (CanLII), Justice Chozik addressed the outstanding issues of the amount of retroactive support owing, payable as a lump sum, the tax implications of that lump sum award, and the tax implications of a lump sum “catch up” payment.

Earlier this year, in Jasiobedzki v. Jasiobedzka, 2023 ONCA 482 (CanLII), the Ontario Court of Appeal (“ONCA”) affirmed both decisions. The ONCA held that Justice Chozik did not err in calculating retroactive support to November 1, 2017, which was the date of effective notice. The delay between effective notice and formal notice was sufficiently explained. The wife had mental health challenges and was “entirely dependent” on the husband, thereby lacking the “emotional means” to make a support claim. There was no basis for interfering with the trial judge’s determination on these findings: paras 14 & 25.

Similarly, Justice Chozik did not err in not treating household expenses paid directly to the wife as money received in lieu of support. The decision to award retroactive spousal support is based on “fairness.” Her Honour did not err in finding that the husband was aware that he would have to provide support, and that the quantum paid to the wife even after the household expenses were paid was, again, but a “fraction” of what she was entitled to, while she lived in poverty in an “unhealthy emotional state and dependence”: paras 17 & 25.

The Disadvantages Facing Women Attempting to Access Justice in Family Law are Relevant to Spousal Support Claims

In Legge v. Legge, 2021 BCCA 365 (CanLII), the British Columbia Court of Appeal (“BCCA”) found that Justice Martin’s concurring comments in Michel v. Graydon about the disadvantages facing women attempting to access justice in family law were relevant to the wife’s spousal support claim. Further, Justice Martin’s concurring comments on how to approach the delay factor were relevant here, with appropriate adjustments for the spousal support context. The focus should be on whether the reason provided for the delay is “understandable” rather than “reasonable”. A delay will be prejudicial only if it is deemed to be “unreasonable”, taking into account a “generous appreciation of the social context in which the claimant’s decision” to seek support was made: paras 43-45.

In that case, the wife’s mental resources were taxed by the parties’ conflict and domestic violence, and she had no funds to retain a lawyer. Thus, she provided an “understandable explanation” for her delay in bringing a spousal support application. The wife had established compensatory and non-compensatory entitlement. While the wife worked full-time by the date of trial, her income remained far below that of the husband. The BCCA found that the trial judge erred in finding that the 10-year delay disentitled the wife to any retroactive award. The trial judge also failed to consider the husband’s role in the delay: he delayed resolution of the outstanding financial issues. The BCCA set aside the trial decision and instead ordered lump sum retroactive spousal support to the wife of $27,000: paras 30, 40-43, 46-49, & 52.


*with thanks to Vanessa Lam for her suggestions and edits.