Our highly rated Vancouver retroactive spousal support award and top Surrey spousal support arrears claim lawyers warn our clients that although there is no time limit beyond which a married or divorced person cannot claim support delay will seriously impact their case. Currently, A 1 year deadline does apply to claiming spousal support after a breakdown of a marriage like relationship, however!
BC Retroactive spousal support was recently addressed by our highest court- the Supreme Court of Canada- in Kerr v Baranow 2011 SCC 1 (Can LII) and the Court in that case says that the factors relevant to the exercise of the Court’s discretion to make a retroactive award of spousal support are similar to those applicable to child support and include the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support, any hardship the retro award will impose on the payor.
Critical are paragraphs 208 and 209 in Kerr v Baranow:
Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child’s behalf and the basic amount of child support under the Divorce Act now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support commensurate with his or her income. As for delay, the right to support is the child’s therefore it is the child’s not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see DBS. In contract 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. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support: see ML Gordon “Blame Over: Retroactive Child & Spousal Support in the Post-Guideline Era” (2004-2005) 23 CFLQ 243 at pp 281 and 291-92.
Where, as here, the payor’s complaint is that support could have been sought earlier, but was not, there are two underlying interests at stake. The first relates to the certainty of the payor’s legal obligations; the possibility of an order that reaches back into the past makes it more difficult to plan one’s affairs and a sizeable “retroactive” award for which the payor did not plan may impose financial hardship. The second concerns placing proper incentives on the applicant to proceed with his or her claims promptly.. See DBS para 1000-103).
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