Vancouver Surrey Retroactive Spousal Support lawyers at top rated* MacLean Law know nothing gets better with delay or procrastination in a divorce and family law case. This is particularly true in Vancouver Surrey Retroactive Spousal Support disputes.
Vancouver Surrey Retroactive Spousal Support 604-602-9000
Tal Wolf, one of our seasoned and no nonsense senior downtown Vancouver associates has seen all too many dollars lost by people failing to contact our experienced family lawyers when they have a dispute involving Vancouver Surrey Retroactive Spousal Support. Don’t be that victim of uncertainty and procrastination who loses thousands. Call Tal Wolf now at 604-602-9000. Click here to meet with us in any of our 6 office locations in BC or Calgary Alberta.
CLAIM IT OR LOSE IT SAY VANCOUVER SURREY RETROACTIVE SPOUSAL SUPPORT LAWYERS
You may have heard the expression in the athletic context “use it or lose it.” Well, the same is true of any spousal support claim you may have, so beware the separation from your spouse that is allowed to hang in limbo – without court action or formalization of terms – unless you have a very good reason for it, or you may find yourself unable to collect retroactively in a Vancouver Surrey Retroactive Spousal Support argument.
(D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.) (“D.B.S.”) is the landmark precedent setting out the factors to be considered in determining whether a retroactive award of support is appropriate, but that case dealt with child support, and the factors were:
a. whether there is a reasonable excuse for why support was not sought earlier;
b. the conduct of the payor parent;
c. the circumstances of the child or recipient spouse; and
d. any hardship occasioned by a retroactive award on the payor spouse.
The leading case with respect to retroactive spousal support is Kerr v. Baranow, 2011 SCC 10 (S.C.C.). At paras. 207 and 208 of that decision, Cromwell J. noted that: While D.B.S. was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support.
Law For Vancouver Surrey Retroactive Spousal Support
However, 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 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. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s and 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.
In contrast, 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.
Tal Wolf Explains Delay can Be Fatal In Vancouver Surrey Retroactive Spousal Support Cases
Heed the lesson recently learned by the applicant in Compeau v. Compeau, 2017 BCSC 911, where the claimant sought a final order for retroactive spousal support from January 2002 to the present and ongoing spousal support thereafter. The claim was denied.
35 In this case, it is not disputed that the claimant did not seek interim spousal support at any point during the 16 years since the parties separated. The only step she took in this regard was to include the claim for spousal support in her statement of claim filed March 13, 2003. It is also clear that claimant did not bring the summary trial application to resolve her claim for spousal support in this case. Rather, the respondent sought an order for divorce, resolution of the division of his employment pension and dismissal of all of the outstanding claims in this action and the parties were able reach an agreement on all outstanding issues except for the claimant’s outstanding claim for spousal support.
38 Counsel for the claimant once again invites me to infer that all of the resources of the claimant were used up in caring for the children and she was simply not in a position to bring an application for spousal support until now. There is no evidence from which I can draw such an inference. The evidence before me is that the claimant and the respondent shared the parenting of their children after the claimant began her relationship with Mr. Menduk. The claimant was able to commence and pursue proceedings in the Provincial Court in relation to custody, guardianship and access and she was able to commence this proceeding. It is not disputed that the claimant did not seek interim spousal support at any time after commencing this proceeding in 2003. The respondent deposes that the claimant never demanded spousal support from him either verbally or in writing until she filed her response to the notice of application on December 15, 2016. That evidence is not disputed by the claimant.
41 Although the claimant began the hearing with respect to child support in the Provincial Court proceeding, she failed to take any steps to schedule further hearing dates with respect to her application. I reject entirely the submission that she was unable to do so because of the transfer of the trial judge to another location. Provincial Court judges who are transferred while seized with trial matters routinely return to their previous locations to complete those hearings and there is nothing to indicate that this hearing could not have been completed in this fashion before Judge Blake.
42 There is also no blameworthy conduct on the part of the respondent in failing to voluntarily pay spousal support to the claimant after their separation. As the Court noted in Kerr, spousal support differs from child support in that there is no presumptive entitlement. The claimant was not presumptively entitled to spousal support and the respondent was therefore not under any legal obligation to look out for her legal interests after they separated in June 2001.
44 With respect to the final factor, any hardship occasioned by a retroactive award on the payor spouse, I am satisfied on the evidence before me that there is evidence that a retroactive award of spousal support of this magnitude in favour of the claimant will result in hardship to the respondent. His evidence is that he is now 11 years away from retirement and he has organized his financial affairs in such a way that he was able to pay off the family debt for which he became 100% liable following the bankruptcy of the claimant. In light of the sizeable retroactive support award being sought by the claimant, there is a significant risk that a retroactive award will seriously disrupt the respondent’s ability to manage his finances.
Act Promptly To Increase Success In Vancouver Surrey Retroactive Spousal Support Dispute
IF YOU HAVE LIVED TOGETHER WITH YOUR SPOUSE OR BEEN MARRIED FOR SEVERAL YEARS, OR IF YOU HAVE HAD A CHILD, AND IF YOUR SPOUSE EARNS SIGNIFICANTLY MORE THAN YOU DO THEN YOU PROBABLY HAVE A VALUABLE CLAIM FOR SPOUSAL SUPPORT UNDER THE DIVORCE OR FAMILY LAW ACTS.
DON’T RISK LOSING YOUR CLAIM BY WAITING.
Call our top rated* Vancouver Surrey Retroactive Spousal Support lawyers today at 1-877-602-9900.
