“The Supreme Court of Canada tackled the issue of retroactive spousal support in Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269 (S.C.C.). In that case, the court touched on the issue of the semantics around the word “retroactive,” and emphasized that the principles which the court established in D.B.S., Supra, were articulated in the context of claims for child support for periods predating the commencement of the legal proceedings. The court referred to the Ontario Court of Appeal decision in MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), 2005 CarswellOnt 1536 (C.A.), where the court held that the date of the initiation of court proceedings for spousal support is the usual commencement date for the support order, unless there is a reason for making the order commence on a different date.
With respect to retroactive spousal support claims, the court held that the four general considerations which it had articulated in D.B.S. are also relevant in deciding the suitability of a retroactive spousal support order. In D.B.S, the four factors that a court should consider before awarding retroactive child support include, the reason for the recipient parent’s delay in seeking spousal support, the conduct of the payor parent; the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might entail hardship. However, it emphasized that retroactive spousal support cases must be analyzed within the framework of the unique legal principles and objectives that underlie the right to spousal support, which are very different from those which apply to child support. Specifically, it highlighted that the duty of both parents to support a child arises at birth, whereas there is no automatic entitlement to spousal support or obligation on the part of a spouse to look out for the other spouse’s legal interests. In addition, it noted that child support is the right of the child rather than that of one of the litigants, and that the SSAGs have simplified the calculation of a parent’s support obligation. Accordingly, the prejudice where retroactive relief is denied flows to the child rather than to the custodial parent. The court’s analysis indicates that because of these different principles and objectives, concerns about a spousal support claimant’s notice of the claim and delay in pursuing it, and about misconduct, will generally carry more weight in retroactive spousal support cases.
With respect to the concern of payor spouses in retroactive claim cases about the recipient’s delay in pursuing relief, the Supreme Court noted in Kerr v. Baranow, Supra, that there are two important underlying interests at stake. First, there is the payor’s interest in having certainty regarding their legal obligations. Second, there is a general interest in creating appropriate incentives for spousal support claimants to advance their claims promptly. In regard to the issue of conduct, the court clarified that the focus must be on “conduct broadly relevant to the support obligation, such as concealing assets or failing to make appropriate disclosure.” (Kerr v. Baranow, para. 212). Consideration of the circumstances of the spousal support claimant must focus on that spouse’s needs both at the time the spousal support should have been paid and at present.”