Child Support

More from the Supreme Court of Canada on Historical Child Support Claims

Written by Russell Alexander / (905) 655-6335

More from the Supreme Court of Canada on Historical Child Support Claims

In early June we reported on the landmark decision by the Supreme Court of Canada in Colucci v. Colucci where the Court definitively pronounced the law governing when/whether child support arrears could be retroactively reduced or eliminated entirely. The Colucci decision built on the Court’s prior ruling in a seminal case from back in 2006 called D.B.S. v. S.R.G., which also dealt with the legal principles around retroactive child support.

These two important rulings are augmented by a third case called Michel v. Graydon, which the Supreme Court of Canada released in late 2020.

In that case, the couple were in a common-law relationship and had one child together.  When their relationship ended in 1994, the child was 3 years old.  The parents agreed at that time that the father would pay a certain level of child support, based on the $40,000 he declared to be his annual income. His agreed support obligations were solidified into a formal court order.

However, in the following years the father regularly refused to disclose his income.  It later came to light that for more than a decade, he had understated the true amount he was earning. In the mother’s view, this meant that the father had substantially underpaid on child support over the years.

Although by now the child had reached the age of majority and was no longer a “child of the marriage” under the relevant support legislation, the mother applied for a court order that retroactively imposed a support obligation on the father now, commensurate with what he should have been paying all along. This raised the issue of how a court should deal with what is known as “historical child support”, which arises in situations where the support claim is being made on a “looking-backwards” or retroactive basis, but is made at a time when the child is technically not entitled to claim current support.

The matter wended its way through the British Columbia courts.  The latest hearing had been before the B.C. Court of Appeal, which ruled that since the child was now over the age of majority, this put the issue beyond any court’s jurisdiction to make a retroactive order varying the 1994 one that was based on the parent’s own agreement. The Appeal Court conclusion was ostensibly based on the interpretive principles set by the Supreme Court of Canada in that D.B.S. v. S.R.G. decision from 2006.

Russell Alexander headshot portrait family lawyer

“The Supreme Court emphasized that an order for historical child support could indeed be made retroactively, regardless of the status of the child at the time the support application is brought” – Russell Alexander, Found & Senior Partner

The subsequent appeal netted a decision in the mother’s favour, with the Supreme Court of Canada reversing the Appeal Court ruling.

The Supreme Court emphasized that an order for historical child support could indeed be made retroactively, regardless of the status of the child at the time the support application is brought.  Admittedly, a Family court’s jurisdiction to make retroactive support orders will hinge on the wording of the provincial support legislation; however in this case, the B.C. statute did not preclude the type of order being sought by the mother even where the child had reached the age of majority.

In this case, the mother’s child support claim could accordingly go forward.

So what’s the bottom line?  With this added ruling in Michel v. Graydon, the Supreme Court has authored a trio of landmark decisions that definitively clarify the law around a child’s continuing entitlement to unpaid support. They collectively emphasize that child support laws must be read cohesively, and in a manner that promotes both the best interest of the child, and access to justice. Importantly, they also reinforce the notion that child support:

  • Is the legal responsibility of the parents;
  • Is a freestanding, continuing right of the child;
  • Does not evaporate once the child reaches the age of majority or leaves school; and
  • Cannot be avoided on a technicality, or based on the mere passage of time where the child has matured beyond the age of majority.

And from a practical perspective, the subtext is simply this: Payor parents cannot evade their child support obligations by dragging their feet, resisting financial disclosure, and avoiding payment to the other parent – sometimes for decades.

For the full text of the decisions, see:

Michel v. Graydon, 2020 SCC 24

Colucci v. Colucci, 2021 SCC 24

D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 SCR 231

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.