McKinnon v. McKinnon: Retroactive Spousal Support

The couple married in 1977 and separated in 2000. The Husband was 48 and the Wife was 46 at the time of the proceeding. The couple have three children who at the time of the proceeding were no longer children of the marriage. The parties had unanimously decided that the Husband would pay $530.00 of spousal support per month, without a formal order ever taken out. The above figure was determined by offsetting the Wife’s child support obligation of $270.00 per month against the agreed upon spousal support of $800.00 per month.

The Wife’s claim was that she should be receiving spousal support of $2,000.00 per month. She also wanted to be named as a beneficiary in the Husband’s insurance policies in order to ensure his spousal support obligation. The Husband was employed as an executive director and earned $82,155.00 in 2003. The Wife was employed as a retail clerk, and she was unemployed for most of their marriage. The Husband did allege that the Wife was under-employing herself given she was capable of earning more than she was actually making based on her training for a managerial role in her job. However, the Court decided that such an allegation was not substantiated.

The Court considered the length of the couple’s marriage (23 years) and the Wife’s caregiver role during the course of the marriage that benefited the Husband’s ability to further his own career. The Court decided that the Husband should not reap the exclusive benefit of sustaining a higher standard of living than the Wife that contributed to this effect. The Court decided that the couple’s after tax disposable income should approximately commensurate once spousal support is factored in. The Court stated that in order to achieve the above which is equitable, the Husband would have to pay the Wife $2,200.00 per month of spousal support. Additionally, the Court required the Husband to pay the above sum of spousal support retroactive to the date of separation. Of course, with the Husband receiving credit for his prior monthly $530.00 of spousal support payments made to the Wife.

Additionally, the Court decided that the Husband was required to re-designate the Wife as a beneficiary of his life insurance policies because he undertook to do so under oath, in 2003. If he wanted to remove her from his policies, he should have done so through a further Court Order.

The Court accepted that the Wife’s claim to be under the Husband’s benefit package was also reasonable given he had better benefits than the Wife. The Court concluded that the Wife would remain under the Husband’s work benefit plan (if his plan permitted him) until he has fully satisfied his retroactive spousal support obligation. Alternatively (if his plan did not permit him to add his Wife as a beneficiary), the Husband would have to pay an amount that would allow the Wife to receive the best benefit plan available from her work until he has fully satisfied his retroactive spousal support obligation. At the end of the day, the Court allowed the Wife to claim retroactive spousal support to the date of separation.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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