“Sharon claims retroactive spousal support from the date of separation. This amount, on a net of tax basis, Sharon proposes be in the sum of $547,899.50.
Sharon relies on the decision of this Court in Bensky v Bensky, 2012 ONSC 4029 to advance her claim for retroactive support. In Bensky, the Court held:
The obligation to pay support commences from the date of separation. On an interim motion, the court may provide retroactive support to compensate for any deficit. The factors to be considered are the reasonableness of any delay in seeking support, the conduct of the payor, the circumstances of the payee spouse and hardship occasioned by a retroactive award (at para. 32)
Based on the record before me, I do not find that there has been undue delay on the part of Sharon in bringing her claim for support. On the other hand, considering James’ voluntary non characterized monthly payments of $10,000.00 since separation together with the Marriage Contract and the circumstances in which it was signed by Sharon, I cannot attribute blame to James in not voluntarily agreeing to pay spousal support apart from the agreed $100,000 lump sum settlement. I also note that in note that in neither of the cases upon which Sharon relies to advance her claim for retroactive spousal support was the Court faced with an agreement limiting support.
While I acknowledge that Courts have indeed awarded retroactive support on the interim motions, in this instance, I prefer to follow those cases that defer the issue of retroactive support to the trial judge: See for example, Samis (Litigation Guardian of) v. Samis, 2011 ONCJ 273; Brandl v. Rolston, 2012 BCSC 902; Ryan v. Ryan, 2018 ONSC 6468. By definition, interim motions are designed to put in place temporary measures pending settlement or trial. Interim motions are not meant to determine the ultimate issues and they should not because the Court generally has an incomplete and often contradictory record before it without the benefit of cross-examination.”