A 2018 court order required retroactive child and spousal support payments to be made by an individual to a former spouse on a monthly basis for the period from 2013 until the date of the order. However, voluntary monthly child support payments were made by the individual to the former spouse during this period, that, in total, exceeded the total child support required under the Order. Furthermore, the former spouse was required to pay an equalization amount to the individual respecting a division of matrimonial property, but with the overpayment for child support and the equalization amount being offset against the total retroactive spousal support required of the individual.
The Order requires regular monthly child support and spousal support payments to be paid by the individual to the former spouse beginning after the date of the Order - and an additional amount will be added to each of these monthly payments, representing a portion of the outstanding retroactive spousal support required to be paid, until the total outstanding retroactive spousal support has been paid in full.
Regarding whether the retroactive periodic support amounts would be deductible, the Directorate indicated that although the order, pursuant to the court’s legislative authority to do so, made the amounts payable retroactively on a periodic basis during the stipulated period (2013 to 2018), ‘payments made before the date of a court order or written agreement cannot be considered to be paid under the order or agreement.”
However, after noting that s. 60.1(3) provides that “payments made in the year of the order or agreement or in the preceding year are deemed to be paid under the order or agreement if the document explicitly refers to the payments that have been made and states that they are considered to have been made under the order or agreement,” the Directorate indicated that, here, s. 60.1(3) would deem the 2028 “Order to have been made as of the first payment that was made in 2017” so that “any of the support payments made from the first payment that was made in 2017 to the date of the Order would be deemed to be made under the Order and could be considered ‘support amounts’.” However, “[a]s the Order suggests that all retroactive child support payments have been paid in full,” s. 60.1(3) would not apply to them.