Our BC retroactive spousal support lawyers want our clients to avoid the need to bring on a retroactive spousal support application.
Delay in increasing or reducing spousal support just adds aggravation to the already stressful spousal support dynamic. MacLean Law’s retroactive spousal support lawyers are part of BC’s largest family law team and we have 4 offices across BC in Vancouver, Kelowna, Fort St John/Dawson Creek and in Surrey. Call us across BC toll free at 1-877-602-9900.
Our retroactive spousal support lawyers encourage prompt correction of spousal support obligations. What are the rules the courts use to decide a retroactive spousal support case? Should they be the same or different than the principles applied in retroactive child support cases?
In J.D.C. v. K.L.M.F.C., 2014 BCSC 2182 the BC Supreme Court reviewed the leading Supreme Court of Canada case of Kerr and Barrow and noted that retroactive child support and retroactive spousal support claims share some but not all of the key principles from the famous Supreme Court of Canada case of DBS.
Here is what the court summarized the key principles to be in BC on retroactive spousal support claims:
[657] In Kerr v. Baranow, 2011 SCC 10 (CanLII), the Court 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.
[658] 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 sport; 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.
[659] In Reis v. Bucholtz, 2010 BCCA 115 (CanLII), the Court of Appeal considered the principles and analysis in DBS with respect to retroactive child support are applicable to claims for retroactive spousal support (para. 66).
[660] The factors to consider are:
- Reasonable excuse for why support was not sought earlier;
- Conduct of the payor;
- Circumstances of the child; and,
- Hardship occasioned by a retroactive award.
[661] With these principles in mind, I have considered that the respondent claimed spousal support in her counterclaim and obtained an order for spousal support in 2010 at the JCC. I accept that the claimant has had notice of the respondent seeking spousal support since almost the commencement of this action.
[662] In considering a retroactive spousal support claim, the claimant’s conduct during the interval between the JCC and the trial must be examined to determine if there was “blameworthy conduct” on his part. In DBS the Court directed that trial courts must take an expansive view of blameworthiness. It is “anything that privileges the payor parent’s own interests” (at para. 106). Blameworthy conduct includes hiding income increases, intimidating the recipient parent, or misleading the recipient into believing support obligations are being met (at para. 106).
Contact our retroactive spousal support lawyers if you have suffered a decrease in income and can’t pay the old amount or if you have reason to believe your spouse has not properly disclosed an improvement in their income or finances that materially affects the proper amount of support that should be paid.
