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Family Lawyers Vancouver

Calgary Retroactive Spousal Support lawyers deal with cases where one or both spouses seek support for a period predating the date they apply for spousal support or to adjust old orders historically either up or down. Senior Calgary family lawyer Peter Graburn writes today’s blog to help you understand how Calgary retroactive spousal support works. Remember, delay never makes things better. So, if you feel you are entitled to spousal support or a change in Calgary spousal support, contact our Calgary office immediately.

Calgary Retroactive Spousal Support Lawyers

In a previous article I wrote that, in family law, we often encourage separating couples to look forward and not dwell on the past, particularly when it comes to maintaining a relationship with your ex for the benefit of the children. But what happens if circumstances change (ie. decreased income, re-marriage, retirement, inheritance, etc.) after a spousal support order has been granted – how do you change the Order to take those new circumstances into account? This is called a retroactive variation of spousal support. Our senior lawyers have handled hundreds of these Calgary Retroactive Spousal Support cases over the 35 years Maclean Law has operated.

The law on spousal support, including a retroactive variation of a spousal support Order, has been set out in a series of cases from the Supreme Court of Canada.  In the 1999 case of Bracklow v. Bracklow ([1999] 1 S.C.R. 420), the Supreme Court of Canada clarified the 3 conceptual bases for entitlement to receive spousal support, being:

  • Contractual – a verbal or written (ie. cohabitation or pre-nuptial agreement) promise to financially support the other person after separation;
  • Compensatory – compensation for something “given-up” for the relationship (ie. a career to stay home with the children, etc.);
  • Non-Compensatory (“need”) – ie. if someone has substantially less disposable income than the other person after the relationship ends.

How Do Agreements Impact Spousal Support? 

In the 2003 case of Miglin v. Miglin, ([2003] 1 S.C.R. 303), the Supreme Court of Canada set out a two-stage  process to determine whether spousal support agreements entered into by the parties may be varied, being:

  • Stage 1 – Original Agreement – the Court will look at the circumstances of entering into the original agreement (ie. the negotiation and execution of the agreement, and whether there was any oppression, pressure or other vulnerabilities by or of the parties), the substance of the agreement, and whether the agreement took into account the objectives and factors for spousal support set out in the Divorce Act
  • Stage 2 – Change of Circumstances – the Court will then look at whether the spousal support agreement should be given little consideration or set aside entirely due to any change of circumstances of the parties that they did not reasonably anticipate at the time of signing the agreement, while still upholding the original intentions of the signing parties. 

What Are The Rules?

In the 2006 case of D.B.S. v. S.R.G.  (2006 SCR 37), the Supreme Court of Canada set out the law on retroactive child support applications, stating that it was generally accepted that a retroactive amendment of child support should not be allowed back further than 3 years from the time of the application (except in the case of blameworthy conduct).  However, the Court then went on to set out a very formal process for bringing an application for retroactive child support including that, in determining  if someone can claim retroactive child support, the Court would look at 4 factors:

  • Delay – why did the custodial parent wait to claim retroactive support?;
  • Blameworthy Conduct – did the paying parent do something to prevent the custodial parent from claiming support?;   
  • Prejudice – would the paying parent suffer financially from a retroactive support award?;
  • Hardship – did the children suffer from not having received the necessary support?

In the 2011 case of Kerr v. Baranow (2011 SCC 10), the Supreme Court of Canada extended the factors set out in D.B.S. regarding variations of child support (above) to spousal support, stating that the relevant factors in determining the suitability of retroactive spousal support were:

  •  the needs of the recipient;
  •  the conduct of the payor;
  •  the reason for the delay in seeking support, and;
  • any hardship the retroactive award may occasion on the payor spouse.

The commencement date for a Calgary Retroactive Spousal Support award is more stringent than for child support. The date of the effective notice ( when your spouse knew or should have known you were making your spousal support claim) plays an important role.  Ask our Calgary Retroactive Spousal Support how the rules apply to your Calgary spousal support case.

SCC Sets Rules For Calgary Retroactive Spousal Support 

Finally, in the 2011 case of L.M.P. v. L.S. (2011 SCC 64), the Supreme Court of Canada set out the current two-stage test for the retroactive variation of spousal support orders, being:

  • Stage 1 – Material Change in Circumstances – the Court will first look at whether there has been a material change of circumstances of the parties justifying a variation of the previous spousal support order; a “material change in circumstances” is a change where “if known at the time, would likely have resulted in different terms” of the original Order – these changes must be substantial, continuing, and not trivial or insignificant;    
  • Stage 2 – Appropriate Change of Order – once the Court has determined there has been a “material change in circumstances” since the granting of the original Order, the Court will then consider what variation of that Order is appropriate in consideration of that change of circumstances – it is not an appeal of the original Order or an entirely new Order.

As previously indicated, in family law, we usually encourage separating couples to look forward and not necessarily try to change the past, except if past agreements and Orders do not reflect major changes in circumstances since the granting of those agreements or Orders (ie. as has happened in the Alberta economy over the past 4-5 years). Spousal (and child) support agreements or Orders that no longer reflect the “new reality” of the current circumstances can mean thousands of dollars in the difference in what should be paid (if anything at all) and may be impossible to continue to pay.

Call Us Today To Protect Yourself By Providing Effective Notice 

Calgary Retroactive Support Variation and Termination Lawyers explain to their clients the specific legal tests and factors that must be met to vary or even terminate a spousal or child support order, and assist their clients present the necessary facts and law to promptly and effectively change any such agreement or Order to be in line with these new circumstances.

The key takeaway for a Calgary Retroactive Spousal Support case is that procrastination will weaken your case. Start moving forward by calling us now.