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The Problem with Valuing BC Discretionary Trusts

Winning retroactive spousal support lawyers know maximizing the results on a spousal support claim requires a focused strategy.  Clients involved in these cases should smartly hire Winning Retroactive Spousal Support Lawyers like MacLean Law based on their history of court successes and settlements.

Retroactive spousal support is a hot button issue where thousands and even millions of dollars can be at stake. Recent developments in the law as established by our Supreme Court of Canada mean family law clients and their lawyers need to understand the developing rules. Our lawyers defend against and pursue some of the largest retroactive spousal support claims across Canada.

Winning Retroactive Spousal Support Lawyers

 1 877 602 9900

In today’s blog Darlene Sandhu and Lorne MacLean, QC of MacLean Law explain the rules and talk about two leading cases they won for their delighted clients involving hundreds of thousands of dollars in retroactive spousal support .

Winning Retroactive Spousal Support Lawyers

Our winning retroactive spousal support lawyers are honoured that our cases are used by Judges , mediators and other lawyer’s to help them properly resolve or decide retroactive spousal support.

Recent decisions in DBS, Michel, and Colucci make it clear children’s right to promptly paid and promptly corrected child support is the prime directive. Is spousal support any less important? Has the leading retroactive spousal support decision in Kerr been modified by recent retroactive child support cases? We think the answer is yes.

We think in retroactive spousal support cases that delay by the recipient will be viewed sympathetically, with many good “excuses”. Both spouses will have a duty of disclosure, so the “conduct” of both the paying and receiving support spouse will be relevant. The payment record of the payor will be be viewed carefully and hardship for unpaid retroactive support owed to the recipient will be compared to what the lump sum retroactive award may cause in terms of hardship to the payor. Ultimately if the payor owes a retroactive lump sum that they should have paid but they paid late, and most often without interest, it means they had free use of spousal support themselves to make profits while the recipient struggled to make ends meet. Fairness will often dictate a retroactive award for three years or even longer in cases where payment hasn’t been made for several years.

No Real Difference Between Spousal and Child Retroactive Analysis

We think that in reality the differences between child support and  spousal support are minimal in terms of retroactive and prospective entitlement. Spousal support entitlement based on need and compensatory bases is likely no less important or valid to Canadian society than ensuring proper child support is paid after separation. We have also noticed a long overdue trend towards greater accountability by recipients of spousal support to move towards self sufficiency which is also a good thing given the uncertainty of the economy and the fact that assuming a payor spouse will always be employed is ill founded. The ability to successfully impute income to underemployed spouses  is an important skill your Winning Retroactive Spousal Support Lawyers must have.

Vancouver Winning Retroactive Spousal Support Lawyers  1 877 602 9900

In Kerr, Cromwell J. discussed how a D.B.S. analysis is required for reroactive spousal support cases. Justice Cromwell emphasized the differences between child support and spousal support, in paragraph 208:

(1) The entitlement of a minor child is “automatic”, while there is no “presumptive entitlement” to spousal support.

(2) Child support is the right of the child, and thus reduces concerns about notice and parental delay by the recipient parent. “Concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.”

(3) The basic amount of child support depends on the income of the payor, while spousal support requires “a highly discretionary balancing of means and need”.

(4) While a parent has a fiduciary duty towards their child, “the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests”.

We think the Spousal Support Advisory Guidelines, Divorce Act, Provincial legislation and case law actually oblige a spouse to pay spousal support when there is entitlement based on compensatory or non compensatory grounds.

What Rules Do Winning Retroactive Spousal Support Lawyers Apply?

Kerr has imported the D.B.S. analysis into spousal support law, enabling a Court to assess:

  1. delay,
  2. blameworthy conduct,
  3. hardship to the payor,
  4. effective notice,
  5. the “three-year rule”,
  6. and first formal notice.

Our Spousal Support Advisory Guidelines make it clear that any period of retroactive support counts towards total duration under the SSAG. Winning Retroactive Spousal Support Lawyers carefully think about retroactive vs. prospective duration. Strategically, if a recipient can obtain support for ten years,  your winning retroactive spousal support lawyers will assess which calculation leads to a larger or smaller payment depending on whether we are defending against or seeking retroactive spousal support.

Case Studies For Our Winning Retroactive Spousal Support Lawyers  1 877 602 9900

BC and Canadian lawyers use two of the largest retroactive award cases MacLean law obtained for their clients to help them solve retroactive spousal support disputes:

In Devathasan we obtained retroactive spousal support back to the date of separation in the amount of $83,000 a month plus additional rental and investment income bringing the total to nearly $100,000 a month ( yes! a month not a year).

[147]     For the same reasons relating to my order of retroactive child support, the principles arising from D.B.S. support an award of retroactive spousal support. Just as with child support, the Respondent would have been fully aware after service that the Claimant would be reliant on him for support, just as he had supported her in the past.

Record Support Wins By MacLean Law  1 877 602 9900.

The Court in Devathasan went on to award our delighted client:

a.     $230,482 in retroactive interim child support and Special and Extraordinary Expenses;

b.     $686,570 in retroactive interim spousal support;

c.      $3,075 in interim Special and Extraordinary expenses; and

d.     $400,000 interim advance for legal fees.

At trial there was a further retroactive award after our client got $25 million of property and $1,500,000 of special costs. The support was even converted into a $6 million plus lump sum!

A similar win for retroactive spousal and child support win was awarded to our happy client in JP v AP who received full retroactive spousal support back to the date of separation. The Judge cited our leading case of Devathasan and applied the principles of DBS to both spousal and child support:

[116]     In Devathasan, Fitzpatrick J. summarised the test to be applied in determining whether a support award should be made on a retroactive basis (at paras. 117-119):

[117]  The circumstances in which retroactive child support may be awarded were addressed in D.B.S. v. S.R.G., 2006 SCC 37. The Supreme Court of Canada directed trial judges to adopt a broad and holistic approach in the application of four factors, summarized at para. 133, none of which are determinative on their own:

a)  Is there a reasonable excuse for why support was not sought earlier?

b)  Was there any blameworthy conduct on the part of the payor parent?

c)  Is a retroactive award appropriate in light of the child’s past and present circumstances?

d)  Will a retroactive award cause hardship to the payor parent or to his or her other children?

[118]  At paras. 120-125 of D.B.S., the Court stated that the commencement date for an award of retroactive child support should not be restricted to the date an application to a court or formal notice is given. Rather, the Court should look to the date of effective notice by the recipient parent to the payor parent. Effective notice was defined as “any indication by the recipient parent that child support should be paid …”: para. 121. The Court suggested that this is generally when the topic of child support is broached.

[119]  There are circumstances where it is reasonable to infer that effective notice has been given to a payor parent, even in the absence of a specific request. This is founded in the principle that both parents have a legal obligation to contribute to the support of their child after separation.

If you are looking for Winning Retroactive Spousal Support Lawyers to help you on your retroactive spousal support case, contact us across Canada toll free at  1 877 602 9900.