The Supreme Court of Canada’s Decision on Historical Child Support Awards

September 22, 2020

In the Supreme Court of Canada’s most recent family law decision, Michel v. Graydon, 2020 SCC 24, the Court settles a long-standing question about whether child support can be recalculated retroactively once a child has reached adulthood. The short answer is that child support is the right of the child and, with that fundamental tenant in mind, the Court is able to make retroactive adjustments to child support even when the child is no longer dependent on the recipient parent.

Background

The facts of this case were quite straightforward. The parties were in a common law relationship and had one child. Shortly after their separation, they entered into a consent order for child support. That order was based on the payor earning $39,832 per year and paying $341 per month. The recipient was on social assistance and therefore her child support claim was subrogated to the provincial government authorities. The payor earned more than the stated income in almost every year until child support was terminated in 2012, when the child was 20 years old. Three years later, in 2015, the recipient applied for a retroactive variation of child support from 2001 until 2012 and was successful at trial. The Court awarded retroactive child support of $23,000.

Decision

The Honourable Justice Brown writing for the majority of the Supreme Court commenced by clarifying the controversy at issue in this case: can child support be varied if the child is no longer a child? In the seminal case on retroactive child support, DBS v. SRG, 2006 SCC 37, the Court posited that in original applications where children had reached adulthood that the authority did not exist under the Divorce Act to make a retroactive variation. While the majority opinion in Michel v. Graydon suggests that it may appropriate to reconsider this holding, they found that it was not necessary to do so as, in the case before the Court, the authority was based on the British Columbia legislation that applies to unmarried persons. Additionally, it was not an original application, but a variation of an existing consent order. In concurring reasons, the Honourable Justice Martin makes the compelling case to re-open this holding from D.B.S., which forms the basis for her disagreement with the majority’s reasons (which she concurs with in the result).

The Court reaffirmed the following principles as being fundamental in child support law:

  • Child support is the right of the child and cannot be bargained away by a recipient parent;
  • Retroactive or historical child support orders hold the payor to their existing (and unfulfilled) legal obligations and thus are not truly retroactive in the strictly legal sense;
  • Retroactive or historical child support orders should not be exceptional;
  • The threshold for blameworthy conduct by the payor parent is low and exists when they fail to pay the appropriate amount of child support in accordance with their income;
  • The recipients reason for delay in seeking the court’s assistance earlier will be expansively interpreted and may take into account the recipient’s fear of reprisal and the desire to insulate children from conflict, intimate partner violence, and the prohibitive cost of litigation; and
  • The date of effective notice, which would normally be the date an award would be retroactive to, is not particularly relevant when the payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness).

Outcome

The Supreme Court of Canada reinstated the original judge’s decision to award retroactive child support of $23,000. Interestingly, half of the award was to be paid to the child and half to the recipient, which may be useful in future cases where payor’s seek to have payments made directly to children although this is likely only to occur in extraordinary circumstances.

The concurring opinion by the Honourable Justice Martin should be noted for its comprehensive background on the historical basis for child support legislation, the impact that categorical bars have on access to justice, and the feminization of poverty. This opinion provides the background and context for important policy considerations that underlie child support law. In particular:

Family law’s holistic approach demands that we take account of the interconnected nature of issues of child support, child poverty, and the consequent feminization of poverty. Given the gender dynamics in child support law, legal rules cannot ignore the realities that shape women’s lives and opens them up to experiences and risks less likely to be experienced by men: like intimate partner violence, a higher proportion of unpaid domestic work accompanied by less work experience and lower wages, and the burden of most childcare obligations.

Lessons for Child Support Payors

Michel v. Graydon acts as another strong warning to payor parents to provide frank and full disclosure at all times that child support is payable and to ensure that their obligations are met at the relevant times. Payor parents should heed this warning as the Court has made clear that any action (or inaction) by payors to prioritize their interest over that of the children will not be tolerated by the Courts and, it appears, the Courts are prepared to expand their analysis to ensure that the children’s right to support is staunchly protected.

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