A Guide to Retroactive Spousal Support

Retroactive spousal support refers to a lump sum payment made from the paying parent to the receiving parent. This form of support may date back to when the separation or divorce was first initiated, and the receiving parent gave the paying parent a notice for payment. It is considered “retroactive” due to the payment being requested from a period prior to the official divorce or separation as enforced by the court.

The two most common settings where retroactive spousal support claims are raised include:

1. During the time of the initial order or agreement, where it may be necessary to revisit the amount and duration of interim spousal support; and

2. On an application to vary spousal support, with a claim for retroactive support accompanying the claim for varied perspective support.

Retroactive Spousal Support follows similar elements, with some alterations, like that of retroactive child support. The Supreme Court of Canada released a criterion to determine retroactive child support through an analysis of the case D.B.S. v. S.R.G., 2006. This case introduced the following factors, which may also be applied to retroactive spousal support:

1. The reasonable excuse for any delay in seeking support by the recipient;

2. The presence or absence of blameworthy conduct by the payor;

3. The circumstances of the support recipient; and

4. Any hardship to the payor occasioned by a retroactive award.

A complementary method to assess and calculate retroactive spousal support is the Spousal Support Advisory Guidelines. The SSAG was created by two family law professors in order to make the process of spousal support more efficient.

The SSAG is not considered to be law, but a beneficial guideline used by judges and family lawyers when assisting clients regarding spousal support. After the development of the SSAG, there was an increase of general spousal support claims being followed by retroactive claims.

As mentioned earlier, retroactive spousal support is paid in the form of a lump sum, unlike the periodic spousal payments that are paid on an ongoing basis. When it comes to taxes, retroactive spousal support is generally not deductible to the payor or taxable for the receiving parent.

Eventually, some cases raised the issue of taxes when it came to retroactive spousal support. The following are introduced circumstances under which a payor is allowed to deduct the lump sum payment:

· The lump-sum payment represents amounts payable periodically that were due after the date of the order or written agreement that had fallen into arrears, or

· The lump sum amount is paid pursuant to a court order that establishes a clear obligation to pay retroactive periodic maintenance for a specified period prior to the date of the court order.

Following a separation or divorce, it may be difficult to keep track of child and spousal support. Seeking retroactive spousal support may further make things challenging between you and your partner/ former partner.

It is important to seek assistance on how to receive retroactive spousal support by following the rules and guidelines. At Tailor Law Professional Corporation, we have experienced lawyers who are well equipped to help you with your needs. If you require assistance, please do not hesitate to contact us at 905-366-0202, or visit our website here.

Sources:

https://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/p20.html https://stepstojustice.ca/steps/family-law/4-think-about-retroactive-support-0 https://justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html

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