T. Retroactive Spousal Support Orders

Author:Julien D. Payne - Marilyn A. Payne

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In Quinn v Eusanio,495it was held that a court has no jurisdiction to make a spousal support order retroactive to a date prior to the commencement of the divorce proceedings. It is highly questionable, however, whether this ruling has survived the judgment in DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra496wherein the Supreme Court of Canada held that "a court properly seized of a child support dispute between divorced parents will have the jurisdiction to order retroactive support to be payable from a date preceding the application for divorce."497Retroactive spousal support is not granted as a matter of course. Retroactive orders for spousal support are discretionary.498A party is expected to act in her own interests to promptly pursue an increase in support.499A court may deny an award of retroactive support where a party is aware of changed circumstances but delays in bringing an application.500Retroactive orders generally extend no more than three years before the date the paying spouse receives effective notice the other spouse is looking for more support.501In Kerr v Baranow,502the Supreme Court of Canada addressed the issue of the appropriate date for the commencement of spousal support. Observing that section 93(5)(d) of the Family Relations Act (British Columbia) conferred a discretion on the court to order "the payment of support in respect of any period before the order is made," the Supreme Court of Canada accepted that similar considerations to those set out in DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra503in the context of child support are also relevant to deciding the suitability of a retroactive award of spousal support. More specifically, the relevant factors are the financial circumstances of the claimant, the conduct of the obligor, the reason for the delay in seeking support, and any hardship a retroactive award might cause the obligor.504Regarding conduct, the courts have strongly condemned

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non-disclosure and late disclosure as constituting misconduct which will not be tolerated.505While the considerations for retroactive spousal and child support are largely similar, the court in Kerr v Baranow pointed out that the above factors must be considered and weighed in light of the different principles and objectives of these two kinds of support.506Concerns about notice, delay, and misconduct generally carry more weight in relation to claims for spousal support. Where the obligor’s complaint is that spousal support could have been sought earlier but was not, there are two underlying interests at stake. The first relates to the certainty of the obligor’s legal obligations; the second relates to inducing the applicant to proceed promptly.507In Kerr v Baranow, neither of these concerns carried much weight because the commencement of proceedings provided clear notice to the obligor that support was being sought and permitted him to plan for the contingency of a retroactive order from that date. Justice Cromwell noted508that the Ontario Court of Appeal in MacKinnon v MacKinnon509concluded that the date of the initiation of proceedings for spousal support is the "usual commencement date," absent a reason not to make the order effective as of that date. While asserting that the decision to order support for a period before the date of the order should be the product of the exercise of judicial discretion having regard to the attendant circumstances, Cromwell J stated that the fact that an order is sought effective from the commencement of proceedings will often be a significant consideration in how the relevant factors are weighed. In DBS v SRG, the applicants were seeking retroactive support payments reaching back to a period of time preceding their respective applications; that was not the case in Kerr v Baranow. Referring to the relevant considerations in DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra, Cromwell J emphasized the need for flexibility and a holistic approach in applications for both retroactive spousal support and retroactive child support. Having regard to these principles, the Supreme Court of Canada held that the British Columbia Court of Appeal in Kerr v Baranow made two material errors. First, it erred in finding that the circumstances of Ms Kerr were such that she had no need for support prior to the trial date. Second, it erred by faulting Ms Kerr for not bringing an interim

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application, thereby attributing to her an unreasonable delay in seeking support for the period in question. Observing that Ms Kerr commenced her proceedings promptly after separation and that the trial occurred only thirteen months later, the Supreme Court of Canada concluded that she had diligently pursued the proceedings to trial. Furthermore, Mr Baranow had received clear notice that support was being sought and could readily take advice on the likely extent of his liability. Given the high financial, physical, and emotional costs of interlocutory applications, especially for a party with limited means and a significant disability such as Ms Kerr, Cromwell J opined that it was unreasonable for the British Columbia Court of Appeal to attach its denial of retroactive spousal support to the fact that an interim spousal support application was not pursued. As stated by Cromwell J, "[t]he position taken by the Court of Appeal to my way of thinking undermines the incentives which should exist on parties to seek financial disclosure, pursue their claims with due diligence, and keep interlocutory...

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