Family Law Principles that we can learn from Thompson v. Thompson 2013 ONSC 5500 (pleadings)

Is It Necessary to Specifically Plead for Retroactive Child and Spousal Support?

In cases of child or spousal support predating the start of proceedings, a party must specifically include a claim for retroactive relief in their pleading. This conclusion is based on considerations of certainty, fairness to the payor, and administration of justice. Allowing retroactive claims without specific pleading disrupts the balance between certainty and flexibility, undermines procedural fairness, and creates administrative challenges. The standard form Family Law Application should be amended to include separate headings for retroactive child and spousal support claims. If a litigant fails to plead for retroactive support, they should seek consent to amend their pleading early in the proceeding or request leave to amend before trial.

When it comes to cases involving child or spousal support that predate the initiation of legal proceedings, it is vital for a party to specifically include a claim for retroactive relief in their formal statement of claims, or pleading. This necessity arises from the need for ensuring certainty, providing fairness to the party obligated to make the payment, and maintaining the smooth administration of justice.

Permitting retroactive claims without a specific mention within the pleading disrupts the delicate equilibrium between certainty and flexibility. Furthermore, it undermines the principles of procedural fairness, leading to potential injustices. It also poses significant administrative challenges, complicating the process for those involved and potentially hindering the efficient functioning of the justice system.

Given these considerations, it is recommended that the standard form Family Law Application be revised to incorporate separate sections for retroactive child and spousal support claims. This change would ensure that these claims are explicitly considered, and it would also guide those involved in such cases to account for these aspects when initiating proceedings.

Should a litigant forget or neglect to plead for retroactive support, they should swiftly seek consent to alter their pleading early on in the proceeding. If consent is not granted, they should then request leave to amend their pleading before the trial begins. This will ensure that all considerations are adequately addressed, thereby promoting a fair and comprehensive legal process.

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