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Family - Spousal Support (2). Hui v. Chan [limitations and delay]
In Hui v. Chan (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a family law appeal, here brought against "the appellant’s application for a lump sum retroactive payment of spousal support".
Here the court considered the burden of proof for spousal support issues, and the effect of delay in seeking it:Burden of Establishing Entitlement
[27] The appellant submits that the trial judge committed an error in law by placing the onus of proof on the appellant to establish entitlement to spousal support in 2015. This is the argument that lies at the heart of this appeal. If this argument fails, it follows that the remaining issues raised by the appellant regarding determination of income and application of the SSAG cannot succeed.
[28] The trial judge expressed concern that the parties did not provide any law regarding delayed applications for spousal support, despite the body of caselaw on this topic and a specific invitation to address this issue. Instead, the appellant advanced a position that the court should disregard the financial arrangement in place between the parties from separation until 2015 and simply consider the claim for spousal support prospectively from the appellant’s requested commencement date.
[29] The trial judge correctly declined to do so.
[30] Justice Daurio opined that the appellant had the onus to provide the evidence (and the supporting SSAG calculations) for the period of 2006 to 2015 to establish that she had an ongoing entitlement to compensatory spousal support for the time period that she claimed (i.e., 2015–2022). The trial judge concluded that the appellant failed to meet this burden.
[31] There is no limitation period in respect of a claim for spousal support under family legislation or the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 16(1)(c): Kyle v. Atwill, 2020 ONCA 476, 152 O.R. (3d) 59, leave to appeal refused, [2020] S.C.C.A. No. 394. However, the trial judge correctly identified that a lengthy period of delay in bringing a claim is a relevant consideration in the assessment of spousal support claims and the applicability of the SSAG: Quackenbush v. Quackenbush, 2013 ONSC 7547; Hillhouse v. Hillhouse (1992), 1992 CanLII 5983 (BC CA), 74 B.C.L.R. (2d) 230 (C.A.).
[32] This case was not a motion to change an existing order for support, nor was it an application to enforce or vary terms of a domestic contract. Rather, this case was an initial application for spousal support brought pursuant to s. 33 of the Family Law Act for the payment of a lump sum amount (for the period of 2015 to 2022). The appellant does not challenge the trial judge’s finding that the appellant was not entitled to spousal support either on a non-compensatory or contractual basis in 2015. Rather, the appellant argues that, because the trial judge found that the appellant was initially entitled to compensatory spousal support upon separation in 2006, the burden fell to the respondent to establish that she was no longer entitled to spousal support in 2015.
[33] I disagree.
[34] A party seeking spousal support on initial application bears the burden of establishing their entitlement for the period that they are seeking support. As noted by the trial judge, orders for spousal support are intended to recognize the contributions and consequences of spousal partnerships, to ensure that the economic burden of supporting the children is shared, to make fair provision for spouses post-separation and to assist in self-sufficiency, and to relieve financial hardship arising from the breakdown of a relationship: Family Law Act, s. 33(8). These four objectives are viewed as an attempt to achieve an equitable sharing of the economic consequences of spousal relationships and their breakdown: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at para. 74.
[35] The objectives and intended purposes of spousal support orders are equally applicable to applications for spousal support brought immediately upon separation and to applications commenced after prolonged periods of delay. What changes is not the burden of establishing entitlement, but rather the totality of the events and circumstances that the court will consider in determining whether an award of spousal support is required to meet these objectives.
[36] In this case, because of the inadequacy and unreliability of the evidence led regarding the financial arrangements in place for a post-separation period of almost ten years, the court could not find that there was any remaining purpose upon which to base an order for spousal support from 2015 to 2022. The failure of the appellant to provide sufficient (reliable) detail regarding the financial arrangement in place between the parties during this post-separation period, and the justification or rationale for those payments, deprived the trial judge of the ability to assess whether the disadvantages to the appellant arising from the relationship and its breakdown had been alleviated by 2015.
[37] On her own evidence, the appellant acknowledged receiving unclassified tax-free payments from the respondent totalling almost $2.5 million over ten years following separation. If the appellant believed that she was entitled to additional amounts because these payments did not adequately compensate her for the economic consequences of the roles assumed by the parties during the relationship and/or the disadvantages which arose from its breakdown, she had to establish that entitlement. In the eyes of the trial judge, she did not. The trial judge did not err in law or application in reaching this conclusion. . Hui v. Chan
In Hui v. Chan (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a family law appeal, here brought against "the appellant’s application for a lump sum retroactive payment of spousal support".
Here the court states the appellate SOR applicable to issues of spousal support:[6] The Court of Appeal for Ontario has recently articulated the high standard of review to be applied in determinations of spousal support in R.L. v. M.F., 2025 ONCA 595, at paras. 20–21:[20] The determination of support obligations, including the amount and duration of any order and any entitlement to share in a payor spouse’s post-separation income increases, involves the exercise of considerable discretion by trial judges, giving rise to significant deference on appeal: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10 to 12; Hendriks v. Hendriks, 2022 ONCA 165, 71 R.F.L. (8th) 266, at paras. 17, 40; Scheibler v. Scheibler, 2024 ONCA 191, 100 R.F.L. (8th) 51, at para. 10. As this court noted in Berta v. Berta, 2017 ONCA 874, 138 O.R. (3d) 81, at para. 49: “This deference is augmented for payor incomes over $350,000 where the SSAG themselves suggest ‘pure discretion’ as one of two possible approaches”.
[21] Absent material error, such as a serious misapprehension of the evidence or an error of law, an appellate court is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Ballanger v. Ballanger, 2020 ONCA 626, 2 C.C.L.I. (6th) 15, at para. 23. In Johanson v. Hinde, 2016 ONCA 430, W.D.F.L. 4103, at para. 1, this court explained the rationale behind the particular deference owed to factual findings of trial judges in family law litigation: “The deferential standard of review of decisions of trial judges on questions of fact, and questions of mixed fact and law, is designed to promote finality and to recognize the importance of trial judges' appreciation of the facts. If anything, this is more accentuated in family litigation.” See also: Hickey, at paras. 11 to 12.
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