A.D. 1996 No. 123 J.C.S. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: JANE MARY BAYDA and IRVIN BAYDA RESPONDENT V.G. Watson for the petitioner D.Z. Braun for the respondent JUDGMENT DICKSON J. December 9, 1998 [1] The petitioner (mother) seeks retroactive child andspousal support. Her application is rather unusual because no children are presently dependent upon her and by her own admission she is self-sufficient. Nevertheless, she claims herformer husband did not pay sufficient support when both sheand the children were dependent upon him and now wants a catch-up payment of $47,367. [2] The parties were married in 1963. The mother was 16 years old and unemployed. The father was 21-year-old seasonal worker in the construction trade. Their marriage followed the traditional pattern of father as breadwinner and mother as homemaker. They both took hotel management course in 1967, hoping to work in that industry. The father experienced periodic unemployment thereafter and to make ends meet the mother was forced to take low-paying jobs outside the home. In 1983 they bought small town hotel where they both worked until the business failed in May, 1990. The father then went to Edmonton to look for work while the mother and children remained in Saskatoon. [3] The mother perceives this time as the date of separation. She regards her husband`s departure for Edmonton as abandonment of his family. She testified that he sent no money for two years, leaving her destitute. To feed her children, she was forced to take series of low-paying jobs. She does concede that in 1992 he sent her total of $3,200 and bought her washer and dryer. Nevertheless, she says his contribution was insufficient to meet the family`s need. [4] She did not apply to the Court for support for several reasons. Firstly, she could not afford to hire lawyer. Secondly, whenever she asked him for money, he claimed to be broke. She says she felt sorry for him and continued to hope for reconciliation. When that did not happen, she commenced divorce action in 1996 and filed motion seeking retroactive support. At the time she claimed that both she and two of their three children were dependent. For some undisclosed reason, her motion was adjourned sine die by consent. year later the parties made an unsuccessful attempt to settle their dispute at pre-trial. Another year passed before the mother applied for divorce order. The marriage was dissolved June 17, 1998 and the issues of retroactive child and spousal support were again adjourned sine die at the mother`s request. Why the Court has not been asked to address the issue of support until now is not explained. [5] The father perceives the situation somewhat differently. He does not regard his departure to Edmonton as separation. He says separation was never mentioned and he went to Edmonton to find work. Once there, he found series of low- paying seasonal jobs and was often unemployed. In 1990, he earned about $10,000 plus an unknown amount of unemployment insurance benefits. In 1991, his total income was $16,902. During this two-year period he says he sent his wife money whenever he could. He came home on long weekends and resumed family life, during which time he gave her cash and bought groceries for the household. As well, he commenced paying $375 per month on matrimonial debt of $27,000 owing to member of his wife`s family. Eventually, he paid the debt in full. He also gave an estimated $5,000 per year directly to his daughters because they complained they never got any money from their mother. The testimony of one daughter confirmed some direct payments. [6] He says his wife did not mention separation until 1993. Prior to this time he did not keep record of the money he sent her because it did not occur to him that the question might arise in the future. He began keeping records when his wife talked about separation in 1993. During that year he sent her $9,000. When asked on cross-examination about his contribution to the family, she replied that she would be very surprised if he sent her that much money. However, she acknowledged he did so when shown receipts produced by counsel. She also acknowledged receiving $4,000 in 1994 and $2,300 in 1995. [7] It is readily apparent that the father left his wife and children in poor economic condition when he went to Edmonton in 1990. She had to make out as best she could, with minimal help from him. Given his low income in 1990 and 1991, it is likely he too suffered economic hardship. He did, after all, commence paying $375 per month on matrimonial debt at this time. He should have done better by his family in 1992 when he earned $36,150. She earned only $12,478. He sent her only $3,200 and contributed undetermined sums directly to his daughters. He also should have done better in the years following 1993, but there were extended periods, beginning in 1996, that the daughters lived on their own. By her own admission, the mother`s need for spousal support ended in [8] Nevertheless, when addressing claim for support, the Court should not be expected to assess the adequacy of parent`s economic contribution during the time the family was intact and then make up any inadequacy by imposing retroactive obligation. am not persuaded that the parties separated in 1990. It is rather difficult to determine date of separation. Probably, the parties just drifted into it. In any event, not much turns on the date of separation. The mother was entitled to make claim for support whenever she believed the father`s contribution to be inadequate, whether or not she perceived herself separated from him. But she didnot do so until 1996 and then did not prosecute her claim foranother two years, at a time when neither she nor the childrenwere dependent. [9] The primary purpose of a support order is not tocompensate for past failure, but instead, to satisfy presentneed. Making a retroactive support order would not addressthat purpose. The claim is dismissed. There will be no order
The petitioner sought retroactive child and spousal support of $47,367. No children were presently dependent upon her and she was self-sufficient. The parties married in 1963. The mother was a homemaker until 1983 when they bought and operated a small town hotel which ultimately failed in 1990. The petitioner alleged they separated in 1990 when the father left the province to seek work elsewhere. He sent no money for two years until 1992 when he sent $3,200 and bought a washer and dryer. She commenced a divorce action in 1996 which was adjourned sine die by consent. The marriage was dissolved in June 1998. The respondent did not keep records of money sent as he did not consider they had separated until 1993. HELD: The claim was dismissed. 1)Nothing turned on the actual date of separation which was difficult to determine. The mother was entitled to make a claim for support whenever she believed his contribution was inadequate, whether or not she perceived herself separated from him. 2)The primary purpose of a support order is not to compensate for past failure but to satisfy present need. Making a retroactive order would not address that purpose. She did not make a claim until 1996 and then did not prosecute her claim for another two years, at a time when neither she nor the children were dependent.