Our Vancouver spousal support lawyers understand that the start date of support is critical both for the spouse who requires support as well as for the person who has to pay it.
Many times, for a variety of reasons, our Vancouver spousal support lawyers are asked to deal with the prickly issue of retroactive spousal support. Contact our Vancouver spousal support lawyers at 604-602-9000 or simply click here.
Principles for Entitlement Explained By Vancouver Spousal Support Lawyers
When deciding:
- whether a spouse has an entitlement to spousal support,
- the monthly amount of Vancouver spousal support payable;
- the duration of spousal support;
the court will need to assess whether the principles of contractual, compensatory and non compensatory support apply and if so where on the range of the spousal support guidelines the amount and duration should fall. Longer marriages will often lead to higher Vancouver spousal support payments and the potential for indefinite support subject to variation on a material change or review is greater.
Retroactive Spousal Support
When our Vancouver spousal support lawyers are dealing with retroactive spousal support a number of additional factors apply. In this blog our Vancouver spousal support lawyers have extracted the principles of retroactive spousal support from the recent BC Supreme Court decision in Reay v. Reay:
[42] The claimant seeks retroactive spousal support from March 20, 2010 to the date of hearing. She asserts that “[d]espite multiple requests for spousal support from the Respondent, he has paid no spousal support to me since we separated on March 20, 2010”. She does not state how or when those requests were made. The only clear evidence of a request for spousal support is found in the notice of family claim filed on August 10, 2012.
[43] Section 170(b) of the FLA provides that an order for spousal support may include “any period of time before the date the application for the order is made”. The applicable section of the Divorce Act is section 17(1)(a).
[44] A claim for retroactive spousal support requires consideration of why the support was not sought earlier, the conduct of the payor, the circumstances of the spouse and any hardship occasioned by a retroactive award (D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37). While D.B.S. addressed child support the analysis respecting retroactive spousal support is similar (Kerr v. Baranow, 2011 SCC 10). In Kerr the Supreme Court of Canada also noted at para. 208 that:
[208] … 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”: …
[45] While the parties entered into mediation in 2011 and 2012 the evidence does not make clear that spousal support was at issue. Given the only clear claim for spousal support on the evidence before me is the filing of the notice of family claim I conclude that the respondent had notice of the claim as of August 10, 2012.
[46] As a result of that claim the parties exchanged pleadings and financial information over the following months and sought an out of court resolution of their claims. Given those ongoing discussion it was reasonable for the claimant to not actively pursue an interim maintenance claim in chambers. There is also evidence that the respondent was dilatory in making financial disclosure as it was not until the hearing of this application that he produced copies of his recent tax returns.
[47] After separation the claimant was in need of support. The evidence establishes that the claimant has be unable to obtain her own residence, whether rented or owned, but instead has relied on the charity of friends. She has also incurred debts in order to make ends meet.
[48] As a result any retroactive order addresses her entitlement and need for support and is not a redistribution of capital.
[49] I am satisfied that an order for retroactive support is appropriate however only to August 10, 2012 when the notice of family claim was filed. At that point the respondent was on notice and was obliged to plan his financial affairs accordingly. The lesser income of the claimant coupled with the standard of living of the parties, the long marriage, their roles in the marriage, the disadvantages suffered by the claimant from the marriage breakdown and her need to become self-sufficient and the fact the respondent remained in the mortgage free former matrimonial home all support such an order. In my opinion retroactive spousal support should be ordered from August 10, 2012. Taking into account the parties’ respective incomes from that date to the January 2016 the retroactive spousal support shall be calculated based on payments of $1,259 per month. The income and assets of the respondent do not indicate that such an order will impose a hardship on him.
