The retroactive spousal support lawyers at MacLean Law routinely handle cases involving a start date for spousal support and child support that pre-dates the hearing at trial on the issue of support. These earlier start date cases for spousal and child support called “retroactive support” cases involve a set of rules that can differ depending on whether the support is spousal support as opposed to child support. Our retroactive spousal support lawyers know that generally getting speaking, getting an award of retroactive child support is easier than getting an award of retroactive spousal support. Top Retroactive spousal support lawyers know that delay is not favourable to a spouse in need as it may show an ability to get by without support. Conversely, delay by the paying spouse in being forthright about their real income can cause a court to go farther back in time for the start date of retroactive spousal support.
Delay Is Never A Good Thing In Support Disputes
Our retroactive spousal support lawyers were interested to see a recent BC Court of Appeal decision on retroactive spousal support that was just handed down where a husband took issue with the test to be applied for a retroactive spousal support start date.
Call our top rated divorce and family law lawyers at 1-877-602-9900 retroactive spousal support lawyers on your side. We have 5 offices in BC in Vancouver, Kelowna, Richmond, Surrey and Fort St John and a new office in Calgary.
Our retroactive spousal support lawyers know it is important when there is any delay by the spouse in need in applying for support to explain why there was a delay. Sometimes our retroactive spousal support lawyers will argue there was a fear of harm by the needy spouse that caused them not to ask for support and sometimes it is for lack of resources to hire a lawyer and other times it is because the spouse who needed spousal support was mislead or not told about the real financial resources of the paying spouse. Our retroactive spousal support lawyers encourage spouses involved in these cases to deal with the issue of the start date immediately as delay increases the complexity and cost in retroactive spousal support cases.
Retroactive Spousal Support Lawyers
Lorne N. MacLean QC, leader of our team of retroactive spousal support lawyers analyzes the recent case of Kraft v Kraft and bolds the key parts of the judgment that impact future awards of retroactive spousal support
Analysis
- Retroactive Support
(a) The D.B.S. Factors
[16] Mr. Rempel submits first that the trial judge erred in principle by failing to weigh the D.B.S. factors independently in relation to spousal support, adopting instead her assessment of those factors from the retroactive child support analysis. Mr. Rempel argues that these factors are to be approached differently in the context of spousal support, in accordance with Kerr at paras. 207 and 208:
[207] … in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. …
[208] Spousal support has a different legal foundation than child support … 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. …
[Citations omitted; emphasis added.]
Differing Rules For Retroactive Spousal Support
[17] I begin by noting that the same factors are to be taken into account whether retroactive child or spousal support is in issue. It is the weighing of those factors that will differ: concerns about the applicant’s delay and misconduct “carry more weight” in relation to spousal support (Kerr at para. 208). In contrast, the entitlement of a child to support is generally so compelling that those factors will be less significant in the exercise of the court’s discretion to make a retroactive award. The underlying facts are, however, relevant to both types of support applications.
[18] It is to be remembered as well that although the majority in D.B.S. identified four factors to be considered, Mr. Justice Bastarache began by saying:
99 I will now proceed to discuss the factors that a court should consider before awarding retroactive child support. None of these factors is decisive. For instance, it is entirely conceivable that retroactive support could be ordered where a payor parent engages in no blameworthy conduct. Thus, the British Columbia Court of Appeal has ordered retroactive support where an interim support award was based on incorrect financial information, even though the initial underestimate was honestly made: see Tedham v. Tedham (2003), 20 B.C.L.R. (4th) 56, 2003 BCCA 600. At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix. [Emphasis added.]
[19] In my view the judge did not err by failing to conduct an entirely independent analysis of the D.B.S. factors in assessing the claim for retroactive spousal support. While some discussion of the reasons for making a retroactive award of either type of support is to be expected, it is not mandatory to explicitly refer to either D.B.S. or the four factors: Reis v. Bucholtz, 2010 BCCA 115
[22] Mr. Rempel submits first that the trial judge erred by adopting into her retroactive spousal support analysis her finding that Mr. Rempel engaged in blameworthy conduct when “[h]e did not make voluntary adjustments or increases … as his income increased …” (at para. 19). Mr. Rempel argues that in the context of spousal support, a failure to make voluntary adjustments to the level of support is not blameworthy: Aspe v. Aspe, 2010 BCCA 508 at para. 58; Miolla v. Miolla, 2014 BCSC 587 at para. 92; Gisler v. Gisler, 2015 BCSC 323 at paras. 110-11.
[28] I agree that delay by an applicant seeking spousal support will weigh more heavily against a retroactive award than would be the case on an application for retroactive child support. But the significance of the delay may be diminished when there is a reasonable excuse for the failure to proceed. In D.B.S. at para. 101, Bastarache J. said:
101 Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: seeChrintz v. Chrintz (1998), 41 R.F.L. (4th) 219 (Ont. Ct. (Gen. Div.)), at p. 245. On the other hand, a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply.
[29] In the present case the trial judge found that Ms. Ducharme struggled financially and could not afford to pay legal counsel to pursue her claim for support (at para. 18). Some of those financial struggles related to irregular payment of spousal support (at para. 19). Ms. Ducharme was found to be economically disadvantaged by her primary child care responsibilities and lack of skills which made it necessary to obtain shift work, which in turn made it more difficult to obtain childcare. Further, her financial need was significant:
[20] … There have been several moves, periods of time when the claimant has had to park her car because she could not afford insurance, times when Internet and television were not available in the home as a result of an inability to meet the cost, and strict limits on extracurricular activities unless the claimant’s parents paid for them or the respondent agreed to contribute to them.
[30] Finally, I note that the trial judge gave some weight to Ms. Ducharme’s delay in advancing her claim for additional support. Ms. Ducharme applied for retroactive support commencing January 1, 2010, but the trial judge increased spousal support as of December 1, 2011, almost two years later than the date sought.
Don’t delay call our skilled retroactive spousal support lawyers today toll free to find out what your rights and obligations are the amounts involved can be significant and you cannot afford to make a mistake when your financial future is involved. 1-877-602-9900 in BC and Alberta.
