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.
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