Miolla v. Miolla

2014 BCSC 587 Miolla v. Miolla IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Miolla v. Miolla, 2014 BCSC 587 Date: 20140407 Docket: E025899 Registry: New Westminster Between: Barbara Dianne Miolla Claimant And Scott Miolla Respondent Before: The Honourable Mr. Justice Armstrong Reasons for Judgment Counsel for the Claimant: R.A. Cleveland The Respondent, Scott Miolla: Appearing on his own behalf Place and Date of Hearing: New Westminster, B.C. October 10, 2013 Place and Date of Judgment: New Westminster, B.C. April 7, 2014 Table of Contents Background. 3 Spousal Support Review.. 5 The Respondent's Financial Circumstances. 5 The Claimant's Financial Circumstances. 6 Applicable Law. 8 Variation of Child Support and Retroactive Award. 9 Excuse for Delay in Applying. 12 Blameworthy the Conduct of the Payor 13 Will Retroactive Support Cause a Hardship. 14 Circumstances of the Children. 15 Conclusion. 15 Ongoing Support 16 Variation of Spousal Support and Retroactive Award. 17 Economic Disadvantage. 20 Retroactive Spousal Support 21 Costs. 23 [1] These reasons concern applications made by the parties to alter the terms of a divorce order, granting the claimant spousal support and child support. The respondent seeks to terminate the claimant's spousal support and attach restrictions on the use of money he pays for child support. The claimant seeks a series of orders increasing spousal and child support, stipulating a Guideline income for the respondent, and establishing retroactive child and spousal support. Background [2] The parties were married on October 12, 1996. They separated on July 15, 2006. [3] The claimant is 44 years old and the respondent 49. [4] The parties have three children: B.M., who is 17, J.M., who is 15 and D.M., who is 13. [5] The respondent is a longshoreman with the BC Maritime Employers Association. He has worked as a longshoreman since before the parties married. [6] The claimant resided with Michael Smolka at the time of the trial. He expected to be paying room and board of $1,000 to the claimant; $500 of that amount was attributed to the claimant's income. Unfortunately, Mr. Smolka fell short in making his payments and has left an outstanding debt of $20,000. He no longer resides with the claimant. [7] The claimant is currently studying and is not employed outside of the home; she provides ongoing care for the three children. Prior to the birth of the children the claimant was a receptionist and accounts receivable clerk. She had obtained her high school equivalency in 1988. [8] After the trial of this action the claimant studied at Kwantlen University College (KUC) and obtained an Associate's degree in psychology. She is currently enrolled at KUC where she is pursuing an accounting diploma. This is a two-year course which contains some flexibility to enable the claimant to continue searching for employment. She has not found employment. [9] The parties were divorced in November 2008 after a five-day trial. In reasons for judgment in Miolla v. Miolla, 2008 BCSC 1630, Mr. Justice Ehrcke articulated his conclusions on the facts. Some of those findings are relevant to this proceeding including: [23] The defendant's income, as shown on line 150 of his income tax returns, was $205,183 for 2004; $192,703 for 2005; $249,721 for 2006; and $114,437 for 2007. [25] As for the future, the parties disagree about what income ought to be attributed to the defendant. As can be seen, his income has varied through a substantial range in the last several years. The average of his income from 2004 through 2007 is $190,511. Taking just the last three of those years, the average is $185,620. The plaintiff submits that an annual income of $175,000 ought to be attributed to him [32] No one can predict with confidence what the future availability of work will be in these times of economic uncertainty. Of course, the issue before me is not simply what income the defendant will earn in the coming year, but rather, what income he is reasonably capable of earning. He cannot evade his support obligations by deliberately becoming underemployed. On the evidence before me, I am satisfied that he is capable of earning more than $90,000 per year, notwithstanding the declining global economy and his 2007 injury. On the other hand, I think that attributing an income of $175,000 to him at this time is unreasonably high. Given his injury, I do not think he can sustain the level of income he earned from 2004 to 2006. I conclude that his income for support purposes should be set at $125,000 annually. That is somewhat higher than his $114,437 income for the year 2007, but for part of that year, he was on Worksafe BC benefits. On all the evidence before me, I believe that it is reasonable to expect the defendant to be able to earn $125,000 annually under current circumstances. [35] The plaintiff is trying to improve her employment prospects through courses she is taking at Kwantlen University College. She has already taken a number of courses and has been getting good grades. She hopes to complete her criminology program by the end of 2011, and then seek work in the criminal justice field. [36] I am satisfied that the plaintiff is making a bona fide effort to improve her job skills so that she may become economically self-sufficient. In the long run, this is to the defendant's benefit as well as to the benefit of the plaintiff and the children. She should be encouraged in these efforts. Given her parenting responsibilities, I do not think it is reasonable to expect her to work part-time in addition to her course work, nor do I agree with the defendant's submission that she should be taking more than three courses per term. [46] I have found that it is not reasonable to attribute an income of $175,000 to the defendant, but rather, $125,000. Based on that income, the range of support under the Spousal Support Advisory Guidelines is from $1,363 to $2,033. The middle of the range is $1,678. The defendant is ordered to pay $1,678 per month to the plaintiff as spousal support commencing December 1, 2008 for an indefinite period. Either party may seek a review of the spousal support obligation any time after April 30, 2012, by which time the plaintiff should have finished her course work at Kwantlen University College. [10] In his conclusion (the order) Ehrcke J. divided the parties' family assets equally and imputed a Guideline income to the respondent of $125,000. He ordered the respondent to pay child support in the sum of $2,277 per month and spousal support of $1,678 both commencing December 2008. Spousal Support Review [11] The issue is whether the claimant should have achieved a level of self-sufficiency to relieve the respondent of his spousal support obligations. For the reasons that follow I have concluded that the respondent must continue to pay spousal support for a period ending December 31, 2015. [12] The respondent argued that seven years have passed since the trial judgment in which the court contemplated the claimant would complete her two-year diploma and seek work in the criminal justice field. He contacted the claimant in April 2012 to advise of his plan to seek cancellation of her support. She told him that she needed until December 2012 to complete her studies. He accommodated her request in the likely expectation that she would have moved on to employment by that time. [13] He argues that the claimant's efforts to find work have been inadequate and insincere. The Respondent's Financial Circumstances [14] The respondent's past Line 150 incomes are as follows: a. $205,183 for 2004; b. $192,703 for 2005; c. $249,721 for 2006; d. $114,437 for 2007; e. $175,866 for 2009; f. $287,685 for 2010 (including a lump sum payment from Worksafe BC of $62,000); g. $214,500 for 2011; and, h. $245,969 for 2012. [15] The respondent deposes that his only asset is a vehicle valued at $1500. Excluding his source deductions from employment, the respondent listed monthly expenses of $11,439. Although his 2012 income was $245,969, he said his Guideline income for support purposes is $201,152. [16] The respondent was away from work from May 2007 to June 2008. His income was $43,361 per year during that hiatus. [17] The respondent described he is in unfortunate economic circumstances following the order. He purchased a home in July 2009 costing over $630,000. He sold the home within two years for a price that was $107,000 less than he had paid. He said that his legal fees and other expenses caused him to fall into debt of over $200,000. He lost $36,000 on an unsuccessful investment. [18] He received a $62,000 payment from Worksafe BC in regard to his injuries. The Claimant's Financial Circumstances [19] the claimant's recent Line 150 income history is: a. $20,803 for 2011 (including spousal support of $20,136); b. $20,804 for 2010; and, c. $20,804 for 2009. [20] The claimant describes child support income at $7,110, spousal support of $20,136, and child tax benefits and BC family bonus of $9,600 in her financial statement. She listed $444 in capital gains and $666 in retirement savings. [21] The claimant expected her friend Mr. Smolka would be paying $1,000 per month for room and board. In the last three years she received $662 per month on average from Mr. Smolka. [22] The claimant said that she has $69,650 in assets and no debt. She disclosed monthly expenses of $8,535 which includes rent of $1,650. [23] The respondent argues that his financial circumstances have deteriorated since the trial. Although he received a $62,000 payment form Worksafe BC in 2010 to compensate him for his work injuries, his poor investments pushed him into deeper financial difficulties. He owns no assets of the present. [24] In Mr. Justice Ehrcke's reasons he provided for a review of spousal support after April 30, 2012 "by which time the plaintiff should have finished her course work at Kwantlen University College." The claimant explained her recent academic history starting in 2006 when she completed three courses. She registered for classes in the spring of 2007 but was unable to complete the courses. She was not able to register again until the fall of 2008. She received her degree in March of 2013. [25] After completing her education she searched for employment. [26] Through the summer of 2013 she reviewed job postings and applied for at least eight positions listed in her affidavit #4. [27] In the face of her unsuccessful employment search, she decided to look for other educational opportunities with better employment prospects. She chose an accounting diploma program at KUC. This two-year course began in September 2013 and provides some flexibility to enable the claimant to continue searching for work while studying. Applicable Law [28] The respondent relies on the part of the order permitting either party to review spousal support after April 2012. The claimant seeks a variation of the order to substitute an annual Guideline income for the respondent of $245,969 and to adjust her support in the child support in accordance with the Guidelines. [29] As part of the claimant's variation application, she seeks to vary the amounts payable for child support retroactively to 2009 and for spousal support retroactively to May 1, 2012. [30] There are limitations to applications seeking review of spousal support obligations. In Westergard v. Buttress, 2012 BCCA 38 the court explained the difference between reviews and variation applications regarding spousal support claims and said at para. 21: As I read the trial judgment in this matter, and particularly para. 74, the judge did circumscribe the review. His purpose in providing for a review was to allow a determination to be made as to whether Ms. Westergard had realized her goal of achieving self-sufficiency and whether she continued to be entitled to support. To the extent that any review of quantum was contemplated, it could only be a consequence of Ms. Westergard's partial achievement of self-sufficiency, or her failure to comply with the requirements of s. 96(4) of the Family Relations Act to make reasonable efforts to achieve self-sufficiency. Any change to quantum of support that was not related to efforts to achieve self-sufficiency could only be accomplished through a variation application under s. 96(1) of the Family Relations Act. [31] I will approach the analysis on the basis that the respondent is not obliged to establish a change in circumstances to achieve the relief he seeks. Conversely, the claimant must show a change in circumstances to achieve a variation of the order for her own support. The support for the children stands on a different footing insofar as the respondent is obliged to discharge his duties to the children based on his circumstances extant that the time. This issue will involve a consideration of retroactive changes to his child support obligations. Variation of Child Support and Retroactive Award [32] The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) provides for the variation of spousal and child support orders. These provisions include: Order for variation, rescission or suspension 17.(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; Terms and conditions (3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. Factors for child support order (4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. Factors for spousal support order (4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. Guidelines apply (6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. Court may take agreement, etc., into account (6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. Reasons (6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so. Objectives of variation order varying spousal support order (7) A variation order varying a spousal support order should (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. (8) [Repealed, 1997, c. 1, s. 5] Limitation (10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that (a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and (b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order. [33] The Federal Child Support Guidelines are intended to establish "a fair standard of support for children that ensures that they continue to benefit from the financial means of spouses after separation". [34] D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 [D.B.S.] is the leading authority applicable to this application. [35] The Court described the principles to be considered in addressing child support issues at para. 38: These core principles animate the support obligations that parents have towards their children. They include: child support is the right of the child; the right to support survives the breakdown of a child's parents' marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent. [36] A parent failing to meet their obligation to provide adequate support for a child will have failed to meet their responsibility and may be liable for retroactive payments to discharge their duty. [37] Claims for retroactive child support orders should take into consideration the following factors (D.B.S. at para. 100 to 116): a. Reasonable excuses for delay in seeking support; b. Conduct of the payor parent; c. Circumstances of the children; and, d. Hardship that might occur because a retroactive order is made. [38] That retroactive child support awards must be considered in light of all the circumstances including the payor parent's need for predictability and flexibility. The receiving parent must give a reasonable explanation for any delay in applying for support variation. The court must also consider the conduct of the payor parent and whether undue hardship might flow from a retroactive order: D.B.S. at para. 133. [39] The Divorce Act directs that prospective and retroactive support obligations are generally to be determined under the Guidelines. The Court said at para. 127: While the Divorce Act provides courts with discretion in deciding whether or not a child support award should be ordered, the same cannot be said for the quantum of this award. Both s. 15.1(3) for original orders, and s. 17(6.1) for variation orders, stipulate that a court making an order "shall do so in accordance with the applicable guidelines". Therefore, so long as the date of retroactivity is not prior to May 1, 1997 -- i.e., when the Guidelines came into force -- the Guidelines must be followed in determining the quantum of support owed. The Parentage and Maintenance Act, on the other hand, does not fetter courts' discretion in determining the quantum of child support awards: see s. 18. Courts awarding retroactive support pursuant to this statute will have greater discretion in tailoring the award to the circumstances. Excuse for Delay in Applying [40] Unreasonable delay does not excuse a parent from paying child support at the appropriate level. It is one factor in the analysis. Support is the right of the child not of the receiving parent and a payor should not be excused from meeting their obligation. [41] In this case, the respondent asserts that the claimant sent a letter in 2010 seeking a copy of his 2009 income tax information for the purpose of reviewing support payments. On May 28, 2010 he sent the claimant a number of documents including his T-1 general statements for 2007, 2008, and 2009. He did not provide copies of his T-1 general statements for 2010, 2011 or 2012 until after this application was commenced and provided his affidavit sworn March 22, 2013. [42] The claimant said she was dissuaded from pursuing further disclosure and increased support due to the legal costs. She sent two requests for further information; one was sent December 9 and the other December 18, 2012. She alleges that the respondent said he would provide his tax returns on the condition that she agree to cancel spousal support. [43] The claimant deposed that the respondent had threatened to kill her on more than one occasion and threaten to bankrupt her if she left him. She told him in June 2013 that she was sorry and did not know where things had gone bad; she said she was feeling badly that the parties were still fighting over support issues. She felt bullied by him in the past and was deterred from pursuing support earlier. She pointed to e-mail exchanges with the respondent which, at one time, included a threat to sue her for punitive damages. [44] The respondent denied the claimant's allegations that he intimidated her. I cannot resolve this conflict in the evidence in a summary application. However, it is not necessary to resolve this conflict make a decision on the issue of retroactive support. [45] It is apparent that be claimant's first notification to the respondent that she was looking to revisit spousal and child support was in her e-mail of December 9, 2012. Up to that point in time the respondent had kept his significant income increases hidden from the claimant's view. Blameworthy the Conduct of the Payor [46] The respondent argues that when the he provided updated financial information to the claimant in May 2010 he had discharged his responsibility in regard to the children's support. He relied on comments by the Court in D.B.S. at para. 108 that a parent's deliberate failure to increase support payments automatically does not necessarily constitute blameworthy behavior. [47] The Court said at para. 107: No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) reflex, (1997), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208-9; Chrintz. [48] The full text of para. 108 is instructive to this analysis: On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent's belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay. [49] In setting the respondent's Guideline income at $125,000 in 2008, the Court considered the respondent's 2007 workplace injury and concluded that he would not likely sustain the level of earnings he enjoyed in 2004 to 2006. His income after 2008 rose to $175,000 in 2009, $221,000 in 2010, and 214,000 in 2011. In my view, the respondent was well aware that his income had risen dramatically in the years after his return to work and that he would have known that his obligations would have increased commensurate with his improved income. His failure to disclose this information for over two years was blameworthy conduct that had a direct impact on his children. Will Retroactive Support Cause a Hardship [50] The respondent urges the Court to be attentive to the disruption a retroactive order may cause. He describes the difficulties visited on him when he was off work due to injury. He asserts that he was required to use matrimonial sale proceeds to pay spousal and child support. He describes the $100,000 loss he sustained after selling his house in July 2009, two years after he purchased the home. He described his legal expenses and losses due to bad investments. He says that the basic monthly expenses exceed his average net income by almost $2,700 per month. He says he uses lines of credit and loans to manage his financial affairs. [51] In the respondent's financial statement, he reported paying annual income tax of $81,564 based on income of $201,152. Curiously, the respondent's 2011 line 150 income was $214,500 but his income tax payable was $60,000. He has received substantial income tax refunds between 2009 and 2011. [52] Also I observe that his monthly expenses of $19,458 include $3,500 to debt repayment a loan. [53] In the result, I do not accept that the respondent will suffer hardship if he is required to pay retroactive child support. Circumstances of the Children [54] The claimant's affidavits contained only sparse mention of the children's circumstances. B.M. and D.M. play football and ball hockey; they have many practices each week which involves the claimant transporting the children to and from activities. She also drives the children to school. [55] She deposed that her monthly expenses significantly exceed her income. She estimates direct costs for the children at $1,060. She has lived off of her one-half share of the net sale proceeds from the material home to meet the shortfall in her expenses. The parties did not provide any other helpful evidence regarding the circumstances of the children. Conclusion [56] I have concluded that the claimant's delay in bringing this application for retroactive support should not deprive the children of the benefits that would have accrued to them if the respondent had acted differently. The expense of pursuing these claims was a deterrent; although I note the claimant did not make a request for increased support until late 2012. [57] The dramatic increase in the respondent's income is an important change in his circumstances that leads me to conclude that he acted badly when he did not voluntarily disclose his improved circumstances from 2010 to 2012. He obviously knew that his disclosure of increased income would result in increased support for his children in amounts commensurate with the Guidelines for his new income levels. [58] I concluded that the respondent may suffer some hardship from a retroactive child support award because of his mismanagement of his personal finances. However, he cannot escape his responsibilities by simply refusing to take proper care of his finances at the expense of his children. I will address issue of how a retroactive award will impact the respondent when I deal with the starting date. [59] The circumstances of the children were not well described in this application by either party. The claimant's monthly expenses significantly outstrip her income and explain, to some degree, the dissipation of her capital assets since the order was made. [60] Weighing all of these considerations I have decided that the respondent will pay retroactive support based on his Guideline income. [61] I have considered the factors of certainty and predictability that are important to a request for retroactive support. I recognize that decisions made, however ill-advised, may impact the long-term ability of a person to address retroactive and ongoing support obligations. In order to ameliorate the impact of this order on the respondent, the retroactive support will be calculated from October 1, 2011 until the date of these reasons. Ongoing Support [62] The respondent has not satisfied me that there is any compelling reason to depart from the Guidelines in ordering ongoing child support. The respondent will pay ongoing child support at the Guideline amount of $4,244 per month. [63] I will not accede to the respondent's suggestion that the increase amount of child support should be paid into a registered education savings plan. This money is needed to provide a standard of living for the children commensurate with the standard that was enjoyed before the parties separated. Variation of Spousal Support and Retroactive Award [64] The claimant seeks a variation in the quantum of spousal support that reflects the respondents Line 150 income from 2012. She seeks retroactive support from May 1, 2012 to April 30, 2013. [65] The respondent seeks an order ending his spousal support obligation. [66] The claimant's support order was made on compensatory principles and the basis of need. It was clear that Ehrcke J. considered three a half years as a reasonable estimate of the time it might take the claimant to finish her psychology degree. Regrettably circumstances prevented her from completing a degree until 2013. It is unfortunate that the claimant has not been able to find work in her field of training and has returned to school to obtain what is hopefully a career with improved prospects. [67] The Guideline calculations provided suggest that the range for spousal support in the circumstances of these parties is a minimum of five years and a maximum of 14 years from the date of separation. At present, the parties have been separated for almost eight years. [68] The respondent argues that the claimant should have completed her studies and obtained employment in the criminal justice field before now. In April 2012 he notified her of his intention to apply to cancel support; she asked for an additional eight months to complete her studies and, presumably find work. He says that the claimant has applied for only eight jobs in eight months and this is not sufficient evidence to establish that she has taken all reasonable efforts to become self-sufficient. [69] The parties did not provide authorities on the issue of the claimant's continuing right to receive support. I have considered the Court of Appeal reasons in Tedham v. Tedham, 2005 BCCA 502 [Tedham] which considered Moge v. Moge, [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, [1999] 1 S.C.R. 420. [70] In Tedham, the parties were married 16 years. Their children were adults but still lived with their mother. She was age 52, and Mr. Tedham was age 47. She worked part-time in retail positions earning $25,000 per year, and Mr. Tedham earned over $300,000 per year in a sales position. The chambers judge accepted that the applicant had not made all reasonable efforts to become independent, but it was not clear she would have become independent if she had acted reasonably. Ms. Tedham received more than 65% of the family assets when they were divided. [71] In Tedham, the Court assessed the relationship between self-sufficiency and compensatory support arising under s. 15.2(6)(d) and the other listed circumstances in s. 15.2(4). At para. 46, the Court said: In summary, after reviewing the factors and objectives relevant to a spousal support order set forth in ss. 15.2(4) and (6) of the Act in the context of the evidence in this case, I am satisfied that Tysoe J. erred by focusing almost exclusively on the objective of self-sufficiency in making his order and in failing to give effect to the fact that the obligation of a spouse to become self-supporting is limited by the words "in so far as practicable". I am also satisfied that a consideration of all of the objectives of a spousal support order and the factors to be considered in making such an order militated against a limited-term order in all of the circumstances. [72] The Court's comments at para. 46 were premised on earlier comments made at para. 37 regarding the relationship between self-sufficiency and practicality: Thus, even accepting that Ms. Tedham's efforts to obtain employment were less than reasonable in the circumstances, this fact alone could not justify the time-limited order with a three-year termination date. The other objectives of a support order, which were significant in this case, were overshadowed by the objective of self-sufficiency and the failure to fully recognize that the objective of self-sufficiency is qualified by the words, "in so far as is practicable". [73] At para. 60, the Court said that when a spousal support award is made on a compensatory basis, the award should continue until adequate compensation has been made notwithstanding a spouse achieving a degree of self-sufficiency: While Allaire is what I will refer to as a "non-interference" case, it makes the point that an order of spousal support which is based on compensatory principles should continue until adequate compensation has been made, even if the spouse has achieved a degree of self-sufficiency. It also reinforces the point that self-sufficiency must be viewed in the context of the marital standard of living. In this case, the marital standard of living was, and is, considerably higher than Ms. Tedham is able to achieve on her own and is more akin to that currently enjoyed by Mr. Tedham. [74] Finally, at para. 64, the Court addressed the relationship between reapportionment and spousal support: Another potential pitfall arising from the interaction of these sections is that the court could mistakenly conclude that by reapportioning property under s. 65 of the FRA, it had necessarily addressed the full extent of the economically disadvantaged spouse's claim for support under s. 15.2 of the Act (or its equivalent under the FRA). The fact that there has been a reapportionment does not mean that there should not be an award of spousal support. That decision will turn on the extent to which the reapportionment has adequately compensated for the economic dislocation caused to a spouse flowing from the marriage or its breakdown, and any continuing need the spouse may have for support arising from other factors and objectives set forth in s. 15.2 (and the equivalent provision of the FRA). [75] In summary, the principles described in Tedham are helpful to this analysis. They are: a. the equitable sharing of the economic consequences of the marriage breakdown must recognize the disadvantages incurred by the spouse who sacrifices by staying home and caring for the home and children and the economic advantages conferred on the other spouse which may be long term considerations; b. a failed marriage's financial consequences extend beyond simple loss of future earning power or losses directly related to raising children; c. losses may encompass loss of seniority, missed promotions, and lack of fringe benefits; d. self-sufficiency is not the governing factor in making a spousal support order; e. time-limited support orders often fail to reflect the compensatory aspects of support; f. support orders compensate for the permanent economic consequences of postponing education or entry into the job market; g. spousal support based on compensatory principles should continue until adequate compensation has been made even if self-sufficiency has been achieved; and, h. self-sufficiency is to be reviewed in the context of the marital standard of living, needs and compensatory principles. I will address the various issues raised in making these spousal support findings. Economic Disadvantage [76] The trial judge recognized the economic disadvantages incurred by the claimant when she remained in the home and out of the workforce. She has cared for the home and the children since their birth and continues in that role. At this stage, the claimant is not able to support herself or provide a standard of living commensurate with the one she shared with the respondent before separation. Further, I infer that the claimant's diminished standard of living adversely impacts the children's standard of living. [77] Self-sufficiency must be considered against the backdrop of the economic disadvantages that flow from a marriage relationship where one spouse is out of the workforce for a prolonged period. [78] I have considered the claimant's history as the principal caregiver for the children and the standard of living she shared with the respondent before separation. Although this is a mid-length marriage, the claimant's role in the day-to-day management of the children has continued to impair her ability to become properly educated, trained and absorbed into the workforce. This has not happened as was expected at the time of trial. However, the claimant continues to suffer the impact of her time out of the workforce and does not have a standard of living commensurate with the respondent's standard, at least when measured by his level of income. [79] I am satisfied that the objectives of promoting self-sufficiency and promoting the claimant's efforts to become self-sufficient coupled with the economic consequences of her marriage and its breakup justifies a continuation of spousal support. [80] In my view, it would be appropriate to limit the claimant's entitlement to support to end December 2015. By that time, the claimant will have obtained qualifications for a career in accounting and will be better equipped to achieve self-sufficiency. At that point, the parties' youngest child will be 15 and the elder children 16 and 18. [81] Ongoing support will also provide further compensation for the disadvantages she suffered after becoming a home maker. [82] Taking into account the respondent's financial circumstances, and the amount of child support he pays, I will set the claimant's entitlement to support at the low-end of the Guideline calculation at $4,029 per month. Retroactive Spousal Support [83] The claimant seeks retroactive spousal support for the period May 1, to April 2013 in a lump sum of $29,456. She also seeks retroactive spousal support from May 2013 to October 2013 of $17,244. [84] The issue of retroactive spousal support engages the same considerations used in analyzing child support. Kerr v. Baranow, 2011 SCC 10 [Kerr] at para. 207. [85] There are different principles and objectives which are important to the analysis of retroactive spousal support claims. There is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse's legal interests. Kerr para. 208. [86] The consideration of a spousal support claim should ensure that a recipient is motivated to proceed promptly with a claim so as to obviate the problems faced by payor's who have ordered their affairs in the absence of any expectation of increased obligation. [87] The date from which retroactive support should be payable is a matter of judicial discretion; but the usual date for commencement of a retroactive order is the date the application was brought. This date is an important factor in determination of the date of the commencement of order. Kerr at para. 211. [88] The other factors that should be considered include needs of the payee, hardship to the payor, conduct of the payor, and reasons for delay by the payee. [89] The claimant's request for financial disclosure in December 2012 could be considered as the triggering date from which retroactive spousal support should become payable. The formal application was initiated April 5, 2013. [90] The claimant did not make any request for an increase in spousal support between 2010 and April 2012. In April 2012, the respondent advised the claimant he was intending to apply to cancel ongoing support. At that juncture the claimant could have indicated an interest in increasing her support; she chose to remain silent until December 2012. [91] The claimant said that her delay in in pursuing support related to her economic limitations as well as a fear of bullying and intimidation. A delay in applying for support can be excused where a recipient lacks the financial or emotional resources to bring an application for support. D.B.S. at para. 101. [92] The respondent was dilatory in disclosing his financial circumstances until 2013. He had an obligation to address the children's support but no obligation to address the claimant's support. I do not consider his failure to advise the claimant of changes in his financial circumstances to be a blameworthy factor in assessing her entitlement to retroactive support. [93] After consideration of the claimant's needs, it is evident she has used capital to meet the ongoing expenses for herself and the children. The income imputed to the respondent at the time of trial was a modest amount when compared to his actual income in the years following. [94] I am satisfied that the claimant's needs are a factor favoring a retroactive support order. Her income is insufficient to meet her household expenses and provide for the children. I accept the claimant's explanation for delay in seeking a variation of her support entitlement. [95] The respondent's failure to provide financial disclosure to the claimant does not constitute blameworthy conduct on his part insofar as this application for spousal support is concerned. Further, I recognize that the respondent's affairs from 2010 to 2013 were likely ordered in such a way that it will be difficult for him to provide lump sum retroactive support. He could not plan for this change because he received no notice of her position until December 2012. [96] I will exercise my discretion and set the claimant's entitlement to retroactive spousal support to commence on May 1, 2013. In my view this date reflects a compromise of the respondent's need for certainty, the hardship he faces and his duty to assist in meeting the needs of the claimant. [97] The amount of retroactive support will be equal to the difference between his pas obligation and the new amount of $4,029. Costs [98] The parties did not address the question of costs. If either party wishes to make submissions regarding costs, they should forward written argument before April 30, 2013, and reply argument should be forwarded by May 7, 2013. In the absence of submissions, the claimant will have their costs of this proceeding. "The Honourable Mr. Justice Armstrong"