Court Cases & Orders

Supreme Court of Canada Offers Important Thoughts on the “Feminization of Poverty”

Written by Russell Alexander / (905) 655-6335

Supreme Court of Canada Offers Important Thoughts on the “Feminization of Poverty” 

The Supreme Court of Canada has issued an important Family Law ruling recently, in a case called Michel v. Graydon. The case deals mainly with the law around claims for “historical” child support – meaning support sought at a time when the child has matured beyond the eligibility threshold.   Legally, it is a hefty decision, and will form the topic of at least one more upcoming Blog in which we will cover some of the substantive legal elements.

But for now, we will introduce this landmark judgment by highlighting some of the noteworthy observations about the policy and principles behind child support generally, offered in particular by two of the Supreme Court’s Justices.

(All nine members of the Supreme Court panel who presided over the hearing agreed on the outcome on the case, which turned on the proper interpretation of various legislation and caselaw dealing with child support.   However, some of the Justices preferred to issued separate, but concurring reasons.)

In particular, Chief Justice Wagner and Justice Martin offered some profound and comprehensive observations on the nature of the legal right to child support, whether current, retroactive, or “historical”. Those esteemed Justices wrote:

  1. Introduction

The purpose and promise of child support is to protect the financial entitlements due to children by their parents. Canadian jurisprudence has not consistently fulfilled that promise when it comes to historical child support, which is the term used to describe when retroactive child support is sought after the child no longer qualifies as a beneficiary under the applicable legislation. This is evidenced by contrary judgments across different provinces about whether applications for historical awards can be considered … and a growing body of jurisprudence and social science findings demonstrating that, sometimes, parents delay their application for child support to protect their children from harm or because making an application is impracticable or inaccessible in their circumstances.

Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation which does not evaporate or fade into history upon a child’s 18th or 19th birthday or their graduation from university.  … In short, allowing recipient parents to make claims for historical child support is in the best interests of children and promotes equality and access to justice for all.

Child support issues rarely make their way to this Court due to the high cost of appeals and the comparatively low value of awards. The evasiveness of review attaching to historical child support issues justifies that we begin to discuss and reconcile the deeply divided and confused jurisprudence which prevents the hearing of historical child support claims across Canada.

After a detailed review of the legislative and historical foundations of child support principles in Canada, the Justices went on to consider some of the important policy considerations, and commented on what they called the “feminization of poverty”:

(1)           Access to Justice

Whether seen as statutory authority, referred to as jurisdiction, or redefined as standing, the procedural bar that originated in [prior caselaw] prevents access to justice for Canada’s children. The courtroom doors should not be closed because certain categories of debts owed to children are classified as coming “too late”. As will be described later, keeping whole types of claims from the courts creates hardship for children and their caregivers by contributing to the underfunding of children and the feminization of poverty. …

Arriving at the modern understanding that child support is a right of the child enforceable by court order has taken a great deal of time and is the result of hundreds of years of progress and numerous shifts in thinking about children, human relationships, societal roles, and legal responsibilities. The status of children has changed dramatically from the times when children were viewed as property and the payment of monies for their upkeep was grounded more in grace and generosity than legal duty. Today, children are viewed as individuals who, as full rights bearers and members of a group made vulnerable by dependency, age, and need, merit society’s full protection. This includes a call on the real resources of their parents, translated into a right to child support based on their parents’ actual incomes. …

(3)           Relationship Between Child Support and Poverty

In 1994, this Court took judicial notice of “the significant level of poverty amongst children in single parent families and the failure of courts to contemplate hidden costs in their calculation of child support awards” …

Three decades later, it remains true that gender roles, divorce, separation, and lone parenthood contribute to child poverty and place a disproportionate burden on women. A bar against applications for historical child support means children have gone without their due, and the law provides no remedy for the hardship this has created for the children and their caregivers, most of whom are still women.

Women in relationships are more likely to suffer intimate partner violence than their male counterparts … As a result, they are more likely to leave their home and belongings — and their financial security — behind and to seek shelter or become homeless. …

Given these circumstances, women will often face financial, occupational, temporal, and emotional disadvantages. Moreover, access to justice in family law is not always possible due to the high costs of litigation. In this larger social context, women who obtain custody are often badly placed to evaluate their co-parent’s financial situation and to take action against it. Measures that place further barriers on their ability to claim and enforce their rights, like a jurisdictional bar, inhibit their ability to improve their circumstances and those of their children. …

… In historical child support claims, what is really at stake is monies that ought to have been paid for the care and support of children but were directed elsewhere. This means children and their caregivers do without, and this has lasting consequences for each of them. As the child in this case poignantly said: “I was a confident, bright and enthusiastically ambitious kid. I am a bright and ambitious adult. Somewhere along the line confidence and enthusiasm fell to the wayside” …

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.

Asmentioned above, this landmark decision of the Supreme Court of Canada has many facets, and will form the basis of a future Blog.

For the full text of the decision, see:

Michel v. Graydon, 2020 SCC 24

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.