Family Law Principles that we can learn from Thompson v. Thompson 2013 ONSC 5500 (Retroactive Spousal Support Claims)

In the case of Kerr v. Baranow, the Supreme Court of Canada addressed the issue of retroactive spousal support, emphasizing the nuances that distinguish it from child support. The term "retroactive" in this context refers to a claim for support for periods predating the commencement of legal proceedings. The court referred to the Ontario Court of Appeal decision in MacKinnon v. MacKinnon, which established that the initiation of court proceedings for spousal support usually determines the commencement date for the support order, barring any specific reasons for a different date.

The court further stated that the four general considerations established in D.B.S. for child support claims also apply to retroactive spousal support claims. However, these claims must be viewed through the lens of the unique legal principles and objectives that underlie the right to spousal support. Such principles are starkly different from those applicable to child support. For instance, while both parents have a duty to support a child from birth, there is no automatic entitlement to spousal support or an obligation on the part of one spouse to look out for the other's legal interests.

In addition, the court noted that child support is a right of the child, not one of the litigants, and the Guidelines have simplified the calculation of a parent’s support obligation. In contrast, in retroactive spousal support cases, concerns about a claimant’s notice of the claim, delay in pursuing it, and acts of misconduct carry more weight.

The court also pointed out two key interests in retroactive claim cases: the payor’s interest in having certainty about their legal obligations, and a general interest in creating appropriate incentives for spousal support claimants to advance their claims promptly. The court clarified that the focus of conduct in this context should be on actions broadly relevant to the support obligation, such as concealing assets or failing to make appropriate disclosure.

Regarding the quantification of retroactive spousal support, the court stated that the Spousal Support Advisory Guidelines (SSAG) ranges should be adjusted. This is because these ranges are based on the presumption of periodic ongoing payments that are taxable for the recipient and tax-deductible by the payor. In contrast, a retroactive award must be "netted down" to account for its non-taxable status in the recipient’s hands and non-tax deductible status in the payor’s hands.

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