“In Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court of Canada explained at paras. 206-208:
a. Similar considerations to those set out in the context of child support (as per D.B.S. v. S.R.G., 2006 SCC 37) are relevant to deciding the suitability of a retroactive award of spousal support:
b. The factors include:
-
-
-
-
-
- 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 upon the payor spouse.
-
-
-
-
c. The factors may be weighted differently in retroactive child support v. spousal support cases and in particular, concerns regarding notice, delay and misconduct generally carry more weight in relation to claims for retroactive spousal support.
Generally, in assessing claims for retroactive adjustments of spousal support, the default commencement date is the date of effective notice, to a maximum of three years prior to the date of formal notice: Kerr at para. 211. Effective notice is the date that the support recipient “broached” the subject of an increase in support with the payor: see D.B.S. at paras. 118-121. In the case before this court the date of effective notice and the date of formal notice are one and the same: Mr. Nault was served with Ms. Nault’s Motion to Change on April 4, 2019. There is no suggestion that the topic of a variation of the March 2013 Order was ever raised between the parties in the intervening period of time.
In this case, Ms. Nault urges the court to find that Mr. Nault engaged in blameworthy conduct, by failing to disclose his income annually in accordance with the requirements of the 2013 Final Order of MacPherson J. Such a finding would permit the court to vary the support award retroactively to August 1, 2013, in the court’s discretion.
In circumstances wherein a payor is found to have engaged in blameworthy conduct, the “presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially”: D.B.S., at para 124. The blameworthy conduct of payors has again been explored more recently in Michel v. Graydon, 2020 SCC 24, [2019] S.C.J. No. 102, and Colucci and Colucci, 2021 SCC 24, [2021] S.C.J. No. 24. Notably, all of these Supreme Court of Canada authorities relate to requests for retroactive adjustment of child support rather than spousal support. In these appellate cases the court explains that, since the advent of the federal and provincial Child Support Guidelines, parents are generally presumed to know about the existence and extent of their support obligations, in accordance with the applicable child support Table. It is therefore logical that any failure to disclose increases in income and to make upward adjustment of support in the amount prescribed by the Guidelines may constitute blameworthy conduct warranting a retroactive adjustment which predates effective or formal notice by the recipient: see Colucci, at para. 44. It is abundantly clear that proactive, fulsome disclosure of income is a fundamental obligation of any payor parent.
However, as explained in Kerr, the obligations of a payor spouse are vastly different than the obligations of a payor parent. In spousal support cases, the quantum of support ordered payable by the court is presumed to be correct until the parties agree or a court orders that the quantum payable is (or was) no longer appropriate: at para 208. There is no presumptive entitlement to increases in spousal support commensurate with a payor’s income, as is the case with child support, because the basis of the entitlement and the needs of the recipient, amongst other things, are also important features of most spousal support claims. In A.E. v. A.E., Chappel J. concluded that, despite the Supreme Court of Canada’s recent revisions made to the law of retroactive child support in Michel and Colucci, reflecting a further acceptance and expansion of the concept of blameworthy conduct, the applicable framework for determination of retroactive spousal support claims remains as set out in Kerr v. Baranow: 2021 ONSC 8189 at para. 479. I agree.”