Retroactive Spousal Support
Ontario Spousal Support Information
Under the Divorce Act (s. 17(1)) and the Family Law Act (s. 37(2)), a court may make an order to vary, rescind, or suspend an existing spousal support order either prospectively (creating future obligations) or retroactively, in light of an unfulfilled past obligation. While there is no formal obligation to pay spousal support without an order or agreement in place, a court may impose an obligation as far back as the date of separation, should an entitlement to spousal support be established by the recipient.
For the purposes of spousal support, the term “spouse” refers to married, cohabiting and former spouses (Divorce Act ss. 2(1), 15), (Family Law Act ss. 1(1), 29).
In general, a successful spousal support claim may be ordered retroactive to the date of the first request. An exception to the general rule is where there is “blameworthy” conduct on the part of the payor, at which point the court may order support to commence at the point in time when the conduct began. For example, if a payor disclosed income that was substantially less than their actual income, a recipient spouse may have a claim for retroactive spousal support to the date of disclosure.
The legislation surrounding retroactive spousal support entitlement has been interpreted by the courts. In DBS v. SRG, the Supreme Court listed the criteria for establishing a retroactive support entitlement. (Although this case deals with a retroactive child support claim, the criteria have also been deemed applicable to retroactive spousal support claims.)
The court held that retroactivity is to be considered in a holistic way, but must include the consideration of the following four factors:
- The reason why support was not sought earlier;
- The conduct of the payor parent;
- The circumstances (both past and current) of the [recipient]; and
- Potential hardship on the payor flowing from a retroactive award.
What Is Blameworthy Conduct?
In DBS v. SRG, the court describes blameworthy conduct as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.” (Again, this evaluation is applicable in retroactive spousal support matters.) The court notes examples of blameworthy conduct to include actions such as intentionally hiding financial assets, intimidating the recipient, and misleading the recipient.
Serving all of Ontario from offices in Mississauga, Oakville, Vaughan, and Markham, Feldstein Family Law Group P.C. is committed to providing the counsel, guidance, advice, or other legal services you need in relation to your spousal support matter. We help families in such communities as Aurora, Newmarket, King City, and the entire York Region, as well as in Maple, Kleinberg, Thornhill, Richmond Hill, Unionville, Woodbridge, and beyond.
Call (905) 581-7222 today to discover how an Ontario divorce lawyer can help.
Andrew Feldstein Founder
Andrew Feldstein graduated from Osgoode Hall Law School in 1992. Prior to focusing exclusively on family law, Andrew’s legal practice covered many different areas, including corporate commercial. One of Andrew’s fundamental objectives is to achieve those goals mutually and collaboratively, as set out by him and his client.
Daphna Schwartz Lawyer
Daphna Schwartz joined Feldstein Family Law Group, P.C. in 2007 as an associate lawyer. She was previously practising family law in the Barrie area. Her practice includes all areas of divorce and family law, including custody and access, child support, spousal support, and property issues. Daphna is also qualified to practise Collaborative Family Law.
Anna Troitschanski Lawyer
Anna Troitschanski joined the team at Feldstein Family Law Group, P.C. in 2012. Prior to that, she practised Family Law at a boutique Newmarket firm. Her experience covers all areas of divorce and family law, including custody and access, child support, spousal support, and division of property.
Nick Slinko Lawyer
Nick Slinko attended York University from 2003 until 2007 where he majored in both Law & Society and Philosophy. Nick graduated in 2007 with an Honours Bachelor of Arts degree. He proceeded to earn a Juris Doctor in Law at the University of Western Ontario in 2011. Nick was Called to the Bar in June of 2012 after completing his Articling term with the Feldstein Family Law Group, P.C. He became an associate with the firm immediately thereafter.
Veronica Yeung Lawyer
Veronica Yeung joined the Feldstein Family Law Group, P.C. as a summer student in 2014 and returned as an articling student in 2015. Following her call to the Ontario Bar in June 2016, Veronica was welcomed to the team as an associate lawyer.
Veronica attended York University for her undergraduate studies and graduated as a member of the Dean’s Honour Roll when she obtained her Bachelor’s degree in Honours Criminology.
Shana Gordon-Katz Lawyer
Shana joined Feldstein Family Law Group P.C. as an articling student in 2017. Following her call to the Ontario Bar in June 2018, Shana was welcomed back to the firm as an associate. While completing her articles, Shana assisted with legal matters covering all areas of family law.
Shana attended the University of Western Ontario for her undergraduate studies, where she graduated as the gold medalist of her program, Honors Specialization in Classical Studies.
Rachel Zweig Lawyer
Rachel joined Feldstein Family Law Group P.C as a Summer Student in 2019 and returned as an Articling Student in 2020-2021. Following her Call to the Ontario Bar in April 2021, Rachel was welcomed back to the firm as an Associate.
Prior to completing her legal studies and obtaining her Juris Doctor at the University of Ottawa, Rachel obtained her Bachelor’s Degree at Ryerson University with a major in English Literature.
Lauren Harvey Associate Lawyer
Lauren joined Feldstein Family Law Group as a Summer Student in 2020 and returned as an Articling Student in 2021-2022. Following her Call to the Ontario Bar in April 2022, Lauren was welcomed back to the firm as an Associate.
Prior to completing her legal studies and obtaining her Juris Doctor at the University of Western Ontario, Lauren obtained her Honour’s Bachelor of Arts Degree at Wilfrid Laurier University majoring in Criminology and minoring in Law and Society.
Quinn Held Associate Lawyer
Quinn spent two years as a Summer Student and then completed her Articling term at a boutique Family Law firm in Orangeville, where she was exposed to various complex Family Law matters. Following her Call to the Bar of Ontario in June 2022, she became an Associate with the Feldstein Family Law Group.
Prior to obtaining her Juris Doctor from the University of Windsor, Quinn obtained her Honour’s Bachelor of Arts Degree at the University of Guelph majoring in Criminal Justice and Public Policy and minoring in International Development.