Court of Appeal for Ontario

Date: 2017-11-30 Docket: C63391

Judges: Rouleau, Benotto and Roberts JJ.A.

Between

Deborah Beaudry Applicant (Appellant)

and

Royal Beaudry Respondent (Respondent in Appeal)

Counsel

Guy A. Wainwright, for the appellant

Paul Mongenais, for the respondent

Heard and released orally: November 27, 2017

On appeal from: The order of Justice Robin Y. Tremblay of the Superior Court of Justice, dated January 31, 2017.

Reasons for Decision

[1] The appellant brought an application for retroactive spousal support for a four and a half year period from June 30, 2010 to December 31, 2014. The trial judge dismissed her claim.

[2] The appellant submits that the trial judge erred in the following ways:

(i) When considering her delay in making the retroactive claim for support, he did not take into account that much time was spent in mediation;

(ii) He did not address the issue of compensatory support; and

(iii) He did not provide reasons for departing from the Spousal Support Advisory Guidelines (SSAGs).

[3] We disagree.

[4] With respect to delay, the trial judge referred to the date the proceedings were instituted. The appellant submits that she was prejudiced as a result of going to mediation. Because the mediation was confidential, she was not able to show that she claimed support before initiating proceedings. She submits that the trial judge should have considered the time spent in mediation to offset the delay in making the claim for retroactive support. First, the trial judge's finding as to the effective date of notice was open to him on this record. Second, the trial judge was aware of the mediation. Third he did not place great significance on the delay in making the claim.

[5] The trial judge did consider compensatory support. He referred to Thompson v. Thompson, 2013 ONSC 5500 and the factors therein articulated. His findings relevant to that issue include the fact that the respondent's earnings after the separation were not connected to the appellant's assumption of household and family responsibilities; and that there was no evidence the appellant had sacrificed personal, educational or career plans for the benefit of the husband's career.

[6] The trial judge recognized that the spousal support payments were in fact below the SSAGs. He nonetheless found that the appellant had benefitted from the voluntary payments made by the respondent. Most notably, during the period after the separation, the appellant was able to nearly double her savings by increasing them by about $100,000.

[7] In our view, the trial judge correctly approached the only issue before him: that of retroactive support. There is no presumptive right to retroactive support and we see no error in the exercise of the trial judge's discretion.

[8] The appeal is dismissed with costs payable to the respondent fixed in the amount of $10,000 inclusive of disbursements and applicable taxes.

"Paul Rouleau J.A."

"M.L. Benotto J.A."

"L.B. Roberts J.A."