Retroactive Child Support for Now-Adult Children: Supreme Court of Canada Clarifies the Rules
When a recipient parent applies to vary child support retroactively, must the beneficiary child still be a “child of the marriage” at the time the parent’s application? Or can the parent apply even though the so-called “child” has now reached the age of majority?
In a decision that has important ramifications for payor parents who have historically neglected their child support obligations, the Supreme Court of Canada has clarified the principles around when an application to retroactively vary child support can be made. The ruling builds on the Court’s prior conclusions on eligibility to bring an original application for retroactive support.
In Michel v. Graydon, the parents had been in a common-law relationship and had one child together. When they split up, they reached an agreement on child support that was formalized by the court in 2001. However, the father under-reported his income at that time, and continued to do so for the next decade – essentially shortchanging the mother on child support while the order ran its course. His support obligations were officially terminated by the court in 2012.
Having learned of the father’s income-related misrepresentations after-the-fact, the mother applied in 2015 to retroactively vary child support for the years spanning 2001 to 2012, to bring it in line with the true income figures. The “wrinkle” was that at the time of her application, their child had already reached adulthood.
The B.C. lower court judge issued a ruling in the mother’s favour, but the B.C. Appeal Court overturned it. On subsequent hearing before the Supreme Court of Canada, the lower court judge’s original findings and conclusions were restored.
The Supreme Court of Canada examined its own prior landmark decision called D.B.S. v. S.R.G., where it had ruled that an original application for retroactive child support under the Divorce Act must be made while the child in question is still a “child of the marriage”. However, the rule was different for variation applications under provincial legislation (i.e. the Family Law Act in B.C.); under that statute, there is no requirement that the child must still be a “child of the marriage” at the time of the application for retroactive support.
The Court noted that B.C.’s Family Law Act confirms the general philosophy that child support is the right of the child; it also clearly imbues the courts with authority to change, suspend, or terminate a child support order, and to do it either prospectively or retroactively as it sees fit. The court’s review powers are not tied to the dependency status of the beneficiary child.
Although this is admittedly different from the regime established under the federal Divorce Act, the two levels of government are always free to make different policy choices – as they had done on this issue – and it was a distinction that all courts were required to respect and uphold.
Turning to the specific facts of the Michel v. Graydon case, the Supreme Court confirmed the lower court judge’s conclusion that he had authority to review the prior child support order. The judge was also justified in finding that the father: 1) had under-reported his income for almost 11 years; 2) had neglected his child support obligations in the past; and 3) would not experience hardship if a retroactive award was made at this point. The mother’s delay in seeking retroactive support was also reasonable.
In the end, the Supreme Court of Canada overruled the B.C. Court of Appeal, and confirmed the lower court judge’s order awarding mother $23,000 for unpaid support dating back to 2001.
For the full text of the Supreme Court of Canada decisions, see:
Michel v. Graydon, 2020 SCC 24 (CanLII)
D.B.S. v. S.R.G., 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231
