Lying low may not be the best course of action when it comes to temporary spousal support claims — via financialpost FamilyFinance PersonalFinance
If a motion for a temporary order is not brought by the claimant spouse, the usual advice family given to payor clients is to lie low. The recipient has the onus to prove entitlement to spousal support, and the longer it is before the claim for spousal support is brought forward, the less likely it is that spousal support will be ordered.
In Legge v Legge, the parties lived together for 8.5 years and had one daughter over whom there was highly conflictual litigation. In a 2010 provincial court proceeding, the wife claimed both child support and spousal support, but did not pursue her claim for spousal support. After several years of litigation, the parenting issues were resolved, and the daughter lived primarily with the mother. The court action went no further.
The wife justified her delay in seeking spousal support because of their lengthy parenting litigation and her limited legal resources. Her claim was based on the priority given to the husband’s work over her university education and her role during marriage as the daughter’s primary caregiver. As well, the daughter lived with the mother for a number of years after the separation.
The trial judge considered her needs, the payor’s conduct, the reasons for delay and the hardship to the payor, including that an order for retroactive support stretching back many years makes financial planning difficult, and may impose financial hardship on the payor. In addition, he considered the need for the claimant spouse to pursue her claim within a reasonable time.
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