Spousal support is a payment made to a former spouse after a separation. This payment is intended to equitably divide the family income between the spouses. Spousal support may be decided on the basis of need or to compensate for what a spouse may have given up during the marriage. Spousal support payments are usually decided within the scope of the Spousal Support Advisory Guidelines (the “SSAGs”). There are times where spousal support is payable for a past time period after legal separation. For example, spousal support may be owed where there was a delay in the delivery of spousal support payments or where the payment was never made. These judgments are also subject to the court’s view of the payor’s conduct. For example, if the payor willfully misrepresented their financial circumstances, a spouse may have a retroactive claim to spousal support.
Spousal support may also be varied retroactively if it becomes clear that there are circumstances which would have justified an increase or decrease in spousal support payments. These circumstances are generally financial, and are governed by subsection 17(4.1) of the Divorce Act.
It should be understood that there is no obligation to pay spousal support if there is no formal agreement/order in place yet. However, the court has the power to grant retroactive spousal support payments as far back as the date of initial separation or to the time when a spousal support payment was missed.
How Retroactive Spousal Support is Calculated
When determining retroactive spousal support payments, the courts must consider the following:
The reason why support was not sought earlier;
The conduct of the payor spouse;
The circumstances (both past and current) of the recipient; and
Potential hardship on the payor flowing from a retroactive award.
Other aspects that the court considers are:
The income of each spouse;
Contributions to the family unit/marriage;
Future earning potential of each spouse; and
Missed opportunities or sacrifices a spouse made to support the family unit.
Canadian courts use the SSAGs as a guide for determining spousal support. This usually leads to a range of appropriate spousal support amounts, but the guidelines are not binding and the final decision rests with the judge.
Spousal support payments, unlike child support, are fully taxable as earned income to the recipient. The payor spouse can claim a tax deduction on his or her tax return for payments made if the payments meet the following conditions: the order or agreement clearly specifies the amount to be paid for the spouse or common-law partner any and all payments for child support are fully paid for the current and previous years
Retroactive Spousal Support - A Case Example
In Jendruck v. Jendruck, 2013 BCSC 2196 (CanLII), ongoing spousal support was awarded following the breakdown of the parties’ 33-year marriage, including for the 13-month period between the initial separation and the finalization of the divorce. During their marriage, Mr. Jendruck
was the primary breadwinner. Ms. Jendruck left her job of 20 years in 1999 to be a full-time homemaker and to care for their children – one of which was experiencing behavioural difficulties and struggling in school. While staying home to support her struggling child, Ms. Jendruck opened a small in-home daycare, which earned approximately $4,000 in its most profitable year.
Mr. Jendruck did not support the daycare, and repeatedly questioned her about her business. Mr. Jendruck did not believe Ms. Jendruck needed to be at home and he believed his son did not need additional supports. He felt that Ms. Jendruck could work for someone else, at a job outside the home. Ms. Jendruck had achieved a Grade 11 education, and was unlikely to find a job which would also allow her flexibility to care for their children.
The primary issue in this case was the determination of spousal support. Mr. Jendruck argued that the initial computation of spousal support was incorrect. In computing the spousal support payment, Mr. Jendruck argued that Ms. Jendruck should have $20,000 representing her income (the amount used in the initial computing of the spousal support agreement was only the small pension Ms. Jendruck received from her former employment at the bank she formerly worked at). Ms. Jendruck had not earned any income from the time of the separation on. She had not made efforts to open a new daycare business, nor find employment elsewhere.
The courts took into account the age and education level of Ms. Jendruck and determined that her earning potential was far lower than $20,000. The courts also determined that Ms. Jendruck had not been able to find work because of the highly emotional and
acrimonious nature of the divorce proceedings. Furthermore, the court determined that Mr. Jendruck had not previously supported his wife’s attempts to earn money or embark on a new career in child care, and this constituted a missed opportunity for Ms. Jendruck.
The judge also ordered a review of spousal support obligations shortly before Mr. Jendruck’s 65th birthday, with the anticipation that Mr. Jendruck would be considering retirement.
Contact Valerie M. Little for a Legal Agreement that Resolves Spousal Support
If you are in a situation where you need to pay or receive spousal support, contact a family lawyer in Langley or Coquitlam at our law firm. We deal with all aspects of spousal support, including retroactive amounts. Our family lawyers in Langley and Coquitlam can help determine how best to approach your family law matter. We can provide you with peace of mind for you during a difficult time. Call us for help at 604-526-3333.