Retroactive Spousal Support Protecting Your Family's Interests for Over 25 Years

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.

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Over a Century of Collective Experience
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    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.

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    Jeff Hart

    Lawyer

    Jeff obtained his Honours Bachelor of Arts degree in Classical Studies from McMaster University before attending law school at Queen’s.
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    Daphna Schwartz

    Lawyer

    Location: Markham Daphna Schwartz joined Feldstein Family Law Group, P.C. in 2007 as an associate lawyer. She was previously ...
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    Nick Slinko

    Lawyer

    Location: Vaughan Nick Slinko attended York University from 2003 until 2007 where he majored in both Law & Society and ...
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    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.
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    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.
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    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.

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    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. ...
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    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. ...
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    Jessica Gutta

    Associate Lawyer

    Jessica joined Feldstein Family Law Group as a Summer Student in 2020 and returned as an Articling Student in 2021-2022. ...
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