Vancouver Retroactive Spousal Support Lawyer
Vancouver spousal support cases are often highly contentious. Our highly skilled Vancouver Retroactive Spousal Support Lawyer team, headed by Lorne MacLean Q.C. regularly deals with the tricky area of retroactive spousal support.
Our Spousal Support Advisory Guidelines allow for a calculation of the amount and the length of spousal support. However, the parties’ real incomes- or more importantly what incomes each can really earn- must be used. We cannot allow either paying or receiving spouses to “dog it”.
The recent case of SM v. VV reiterates the rules and factors to be applied when a spouse seeks retroactive spousal support. In this case the court dismissed the wife’s claim for support before the claim was filed:
[152] For the reasons set out below, I conclude that S.M. is not entitled to an award for retroactive spousal support. It is therefore not necessary for me to address S.M.’s calculations in any detail.
[153] In Kerr v. Baranow, 2011 SCC 10, the Supreme Court of Canada emphasized that when considering the factors that come into play when support is sought in relation to a period predating the court order, the exercise of judicial discretion requires flexibility and a holistic view of each case on its merits. As the Court observed in Kerr, the argument for retroactive spousal support would be less convincing where a spouse has already enjoyed the advantages he or she would have received from that support. As with retroactive child support other relevant considerations include the conduct of the payor, the reason for the delay in seeking support on the part of the recipient spouse, and any hardship on the payor spouse occasioned by the award.
[154] In Kerr, the Court affirmed that the right to child support is the child’s and therefore it is the child, not the other parent that is prejudiced by the lack of diligence on the part of the parent seeking child support. This is to be contrasted with spousal support. There is no presumptive entitlement to spousal support and, unlike child support, the spouse is not under any legal obligation to look out for a separated spouse’s legal interests. The Court stated that concerns about notice and delay generally carry more weight in relation to claims for spousal support than child support.
[155] With these principles in mind, I have considered the following:
1. S.M. was aware of V.V.’s increases in income. After the separation, he was consistently transparent with respect to his financial affairs. She should have sought increased support earlier than May 2013. There is no doubt that the “retroactive” award that S.M. now seeks is one which V.V. did not plan for and that such an award will impose financial hardship.
2. While I have not found it necessary to make any findings on the imputation of income to S.M. prior to trial, I have found that she made less than reasonable efforts towards pursuing and securing remunerative employment after separation.
3. S.M. paid at least some of her $4,500 tuition at Capilano University with the joint line of credit and joint credit card.
4. V.V. continued to pay half the property taxes and utilities of the Family Home, even though S.M. enjoyed exclusive use of it. V.V. was forced to find alternate rental accommodation and incurred the related expenses.
5. V.V. paid substantially all of the children’s extraordinary expenses from the date of separation to the date of trial, including guitar and tennis lessons, soccer and lacrosse. He retained S.M. and the children on his benefits plan.
6. There is a substantial risk that a retroactive spousal support award may impair V.V.’s ability to pay the child support and spousal support that I have ordered. Additionally, I find a substantial risk that such an order would interfere with V.V.’s financial ability to pay the costs associated with regularly traveling to and from the Sunshine Coast to spend time with his children. While this does not reduce his child support obligations, in my view, it is a relevant consideration in my determination of whether a retroactive spousal support order would impose hardship upon V.V.: Greene, para. 52.
[156] In all the circumstances, I am unable to accede to S.M.’s submission that she is entitled to any retroactive spousal support.
