Child Support, while having very fixed and specific rules can simultaneously also be one of the more complicated issues in a family law case. Retroactive child support especially.
The recent Supreme Court of Canada decision in Michel v Graydon looks to answer some looming questions and provide clarification. Payor parents need to understand the importance of the recent case. Even If the child has reached the age of majority, and is now financially independent, child support obligations that existed in the past are not automatically dissolved. The Supreme Court case concluded that retroactive child support may still be payable, even after the child is no longer a child.
Ms. Michel and Mr. Graydon were in a common law relationship. They had one child of the relationship namely, AG. After the separation, the parties entereda consent order and Mr. Graydon was ordered to pay the Child Support based off his annual income of $40,000.00. After several years, Ms. Michel discovered that the father was lying about his true income and sought retroactive child support. The child, however, was an adult and no longer considered a ‘child of the marriage’.
The trial judge ordered Mr. Graydon to pay retroactive child support as he his real income which negatively impacted the quality of life that AG lived. Mr. Graydon was ordered to pay $23,000.00 in retroactive child support.
The decision was overturned at the appeals court where the court held that it was too late to order Mr. Graydon to pay retroactive child support as the child was now a financially independent adult.
The Supreme Court of Canada (SCC) unanimously held that Mr. Graydon has an obligation to pay retroactive child support even if the child was now an adult and independent.
DBS v SRG, 2006 SCC 37.
The decision in Michel v. Graydon, builds upon the framework laid down in DBS v SRG, 2006 SCC 37.
In DBS, the SCC considered s. 15.1 of the Divorce Act:
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
In the court’s view, 15.1 meant that the court could not award child support unless the child is a “child of the marriage” when the application is made.
In Graydon, the SCC concluded that such restrictions should not and cannot apply the same way to S. 152 of the British Columbia Family Law Act or S. 17 of the Divorce Act (variation of existing support orders).
152 (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.
The SCC concluded that section 152 of the FLA lets the court retroactively vary a child support order, regardless of whether the beneficiary is a ‘child’ and regardless of the fact that the Order has expired.
Principles governing child support:
The SCC concluded that child support is the right of a child that cannot be negotiated away. In this situation and similar situations, retroactive payment is fair.
The court further stated that the entirety of the situation at hand needs to be considered when deciding to make an order for retroactive child support. This means considering why the parent waited to ask for support, the behaviour of the payor parent, the child situation and whether hardship was caused. Mr. Graydon knew his income was greater than what he had stated, thus he knew that he was paying child support that was less than the amount he should be paying. As a result, it should not be a surprise to him that he must pay more child support now. Moreover, Mr. Graydon was aware of the poo living situation for Ms. Michel and AG and instead of helping her, he made disrespectful and hurtful comments.
Many payor parents that may have thought that they can escape their child support obligations once the child reaches an adult age and is independent will need to reconsider that thought. Moreover, any payor parent that has considered attempting to hide income and pay less in child support hoping to ‘beat the system’ will also be facing a difficult situation in the future as a result of Graydon.
The Graydon case has helped provide more clarity on the idea of retroactive payment of child support once the child is an adult or when the support payments have ended. It largely reinforced the principles underlying child support as they stand. It is not a question of whether retroactive child support is appropriate, rather a question of why retroactive support is NOT appropriate.