Posted on April 23rd 2014 in Family Law

Grounds for Retroactive Spousal Support

We’ve posted about the difference between lump sum and periodic payments in spousal support, but what about retroactive support? There are many reasons why someone might seek spousal support retroactively, but in a recent example we came across, one spouse wanted a lump sum because her former spouse’s income level had gone up when he took a new job and spousal support hadn’t been adjusted.

This case happened in British Columbia and resulted in an increase in periodic spousal support payments, but nothing in terms of a retroactive lump sum. Let’s talk about why.

The facts

In the case of S.M. v. V.V., the couple was married for 17 years and had two children before they separated. When the couple got married, S.M. was an employment services professional and worked in career counseling for the first ten years of their marriage. As a couple, they decided that she would stay at home while their two children were young. V.V. worked in community and stakeholder engagement and facilitation services during their marriage, working for his own company for a while and then joining another one later in his career. Since the separation, V.V. left his position at the company and started consulting through a sole proprietorship.

V.V.’s employment income increased after separation, bringing them back into court to decide:

•   How much child support he should pay (and whether he should pay any retroactively)
•   How much spousal support he should pay (and whether he should pay any retroactively)

 

What the judge needed to consider

Child support:
In deciding if retroactive child support should be ordered, the judge considers:

•   “Whether there was a reasonable excuse for the recipient parent failing to make an earlier request for support;
•   The conduct of the payor parent;
•   The circumstances of the children; and
•   Any hardship occasioned by a retroactive award.” (D.B.S.)

In this case, V.V.’s child support payments were increased and he was ordered to pay retroactive child support by way of periodic installments to avoid causing him unnecessary hardship as a result. Courts are much more likely to order retroactive child support than they are spousal support.

Spousal Support:
Even if child support payments are increased and/or a retroactive child support order is made, that doesn’t necessarily mean that the same will happen for the spousal support issue.

In the case we’re using as an example, the judge considered:

•   Whether S.M. was aware of V.V.’s increase in income and sought an increase in support immediately
•   Whether the retroactive spousal support lump payment would cause hardship on V.V.
•   Whether S.M. made reasonable efforts to be financially independent following their separation
•   Both S.M.’s and V.V.’s financial behavior following their separation (including paying expenses out of an existing joint account)
•   General behaviour, like keeping S.M. on V.V.’s benefits plan
•   Whether there was any risk that this retroactive spousal support would make V.V. unable to pay child support or spousal support.

 

The decision

Why did S.M. not receive a lump sum for retroactive spousal support? Because she knew about V.V.’s change in income, didn’t ask for the support increases sooner, didn’t make what the judge considered “reasonable efforts” to be financially independent, and was living in the family home but only paying half of the expenses. The judge also believed that this sum would put the ongoing child and spousal support payments at risk and would cause V.V. hardship.

Read the entire case judgment here.

If you have any questions about retroactive spousal support or any other family law issues, please contact us. Our family lawyers are happy to help.

Did you find this post interesting? You might also enjoy When is Lump Sum Spousal Support Appropriate.

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