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Is Two Decades Too Long to Wait to Ask for Spousal Support? Yes… and No.


Is Two Decades Too Long to Wait to Ask for Spousal Support? Yes… and No.

I came upon an older case that I thought provided a good lesson on not waiting too long to pursue your legal rights and remedies in family law. In this case, the foot-dragging was unusually lengthy, but the underlying lesson serves as a good reminder to everyone.

The Alberta case in R.B. v. S.B., involved a couple who had already been divorced for about 18 years when the wife went to court for the first time to ask for a spousal support order.

The question for the court was this: Was it too late? And how much support should the wife receive after that length of time?

By way of background, the couple had been married six years and had a severely disabled child together when they decided to separate. In preparing for divorce the wife had received independent legal advice confirming that she was entitled to seek spousal support from the husband under the circumstances. Rather than do so, the court reserved the issue of spousal support, but ordered the husband to pay $75 per month in child support.

The couple then went their own separate ways. The wife continue to care for their disabled child and in the early years after divorce earned about $6500 per year; she was later diagnosed with chronic fatigue and fibromyalgia and at the time she applied for support was earning only about $100 per month doing babysitting. She had never asked for an increase in child support in the entire post-divorce period.

The husband, meanwhile, had remarried about thirteen years after the divorce and had another family.

A full 18 years after the divorce the wife claimed spousal support from the husband, who was now a social worker earning $43,000 per year. She was successful before a judge, who – despite the wife’s very lengthy delay in making her claim – ordered the husband to pay $1,500 per month without giving any written reasons for the decision.

The husband appealed; while he conceded that he owed spousal support, he disputed the amount.

The Appeal Court allowed the husband’s appeal, and reduced the $1,500 per month to only $500 per month, writing:

There is nothing in the very unusual facts of this case that provides a method of setting the quantum of spousal support with any degree of mathematical certainty. However, the long delay in seeking spousal support and the short duration of the marriage are key factors militating against the amount awarded by the chambers judge. In our view, that award was excessive.

The [wife’s] circumstances make it unlikely that she will ever enjoy a comfortable level of income. On the other hand, although the [husband] is more economically secure than she is, he is not wealthy and he has a new child to support. In this situation, all that can be accomplished with a spousal award is a modest alleviation of the impoverished circumstances of the [the wife].

Bottom line: While the wife was still entitled to spousal support after nearly two decades. However, the fact that she had waited so long was one of the factors the Appeal Court took into account in awarding only a modest amount.

For the full text of the decision, see:

R.B. v. S.B., 1996 ABCA 2015 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.