16 May 2011

Supreme Court Releases Decision on Retroactive Spousal Support

The Supreme Court of British Columbia has just released an important decision on retroactive spousal support, among other issues, in the case of Crowe v. Crowe. The law in this area has been changing in the last few years, roughly tracking the changes in the law on retroactive child support with a three or four year delay, and this case offers an excellent summary of the current state of things.

In this case, the court examined the recent case law, including two important recent cases of the Supreme Court of Canada, D.B.S. v. S.R.G. and Kerr v. Baranow, in the context of a review of spousal support and reached the following conclusions:
  • Whether to order retroactive spousal support is a discretionary decision resting on the particular circumstances of the particular parties before the court.
  • The factors to be considered on an application for retroactive spousal support are similar to the factors considered on an application for retroactive child support.
  • These factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse.
  • However, because spousal support has a different legal basis than child support and there is no presumptive entitlement to spousal support, concerns about notice, delay and misconduct will carry more weight.
  • The Spousal Support Advisory Guidelines may be used to determine spousal support on a review application.