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Game Changer: The Supreme Court of Canada weighs in on retroactive child support in Michel v Graydon

6 minute read
Also authored by: Samantha Gordon

The question of whether retroactive child support may be awarded has finally been cleared up by the Supreme Court of Canada in the Michel v. Graydon, 2020 SCC 24 decision. This decision protects children’s rights to proper and accurate support from the payor parent even after the child is no longer dependent.

It wasn’t until January 2015, more than 10 years after she separated from her common law partner that Ms. Michel applied to the court for retroactive child support. Ms. Michel and Mr. Graydon’s daughter, A.G., was born December 1991 and their common law relationship broke down in 1994. Following their separation in 1994, A.G. lived with Ms. Michel and Mr. Graydon agreed to pay child support in the amount of $341/month based on an annual income of $39,832.00.

In fact, Mr. Graydon had understated his income. In 2001, he earned $45,580.00 and, with the exception of one year, his actual income exceeded his disclosed income until his child support obligations were terminated by a court order effective April 30, 2012 when A.G. was 20 years old.

Ms. Michel didn’t apply to the court for an order varying child support earlier for numerous reasons. First, she initially wasn’t aware that Mr. Graydon’s income exceeded the claimed amount.[1] Second, she intended to apply for retroactive support in 2009 but she suffered from a severe injury which delayed the application.[2] Last, Ms. Michel was dependent on income assistance or disability benefits, and in return, she was required to assign her rights to receive child support to the Minister under the Employment Assistance Act.

Ms. Michel finally applied to the British Columbia Provincial Court in January 2015 for an order to retroactively vary child support. The Provincial Court Justice Smith granted her the order, but her legal battle didn’t end there. Her case made its way all the way to the Supreme Court of Canada (“SCC”) following her appeal of the British Columbia Court of Appeal’s decision, which reversed the trial judge’s Order. The Court of Appeal held that the trial judge did not have the jurisdiction to make the variation since A.G. was no longer a child at the time the application was made.

Ultimately, the SCC held that Ms. Michel was entitled to retroactive child support and the Court reinstated the trial judge’s order.

This is a noteworthy decision within Canadian family law jurisprudence as it clarifies uncertainties following the 2006 SCC decision of D.B.S. v S.R.G (“D.B.S.”). Prior to Michel v Graydon, the courts below grappled with the issue of whether it is within their authority to retroactively award child support. The Respondent, Mr. Graydon, relied heavily on D.B.S. to argue that retroactive child support was not available to Ms. Michel because the “subject child” – A.G. – “was no longer a child of the marriage when the Notice of Motion for retroactive support was filed.”[3] The Court in D.B.S. specifically interpreted s 15.1 of the Divorce Act, which is federal legislation. The legislation at issue in Michel v Graydon was s 152 of the British Columbia Family Law Act (“FLA”). The Court concluded that the D.B.S. decision did not create a “sweeping principle that transcends the Divorce Act to embrace all other statutory schemes.”[4] In other words, the decision of D.B.S. interprets retroactive child support in the context of the Divorce Act, but does not dictate the interpretation of provincial legislation.

Once the Court determined that they do have the authority to grant an award for retroactive child support, they interpreted s 152 of the FLA to determine whether a retroactive support order can be granted for a child that is no longer dependent.

The FLA replaced the B.C. Family Relations Act in 2013, which, for both original and variation applications, stated that “[a]ny person may apply for an order …on behalf of the child” (s 91(3)).[5] However, when the FLA was enacted, that same language was excluded from s 152. The Court also analysed the language and conditions in other sections and concluded that the Legislature intended for “child” to be removed from the section, and thus, an order can be made on behalf of a non-dependent child.

The Respondent also argued that s 152 states that the court may vary “an order respecting child support.” The Respondent argued that, as a result of this language, once a child support order expires, it is no longer an order.[6] The Court rejected Mr. Graydon’s position stating that FLA allows expired orders to be varied.[7]

The Court then moved on to their final issue: should a court order retroactive child support in the circumstances of the case. Ultimately, the Court decided that Ms. Michel should be awarded retroactive child support. The Court relied on the test put forward by D.B.S.:

A court hearing an application for retroactive child support must consider whether the recipient parent’s delay in seeking variation is reasonable in the circumstances, the payor parent’s conduct, the circumstances of the child, and whether any hardship would result from a retroactive award.[8]

The Court provided us with important commentary to consider in respect to the application of this test. The commentary also addresses concerns that a retroactive support order is “unfair” to the payor parent. To this, the Court said the following:

When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent’s neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (D.B.S., at para. 5): there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents’ indifference to their child support obligations. This is not to say that hardship is required to ground an award for retroactive child support, as there is also nothing exceptional about relief that creates a systemic incentive for payor parents to meet their obligations in the first place. [9]

This decision promotes and incentivizes truthful financial disclosure at the outset of child support proceedings. Most importantly, parents and children who suffered as a result of the dishonesty or deceit of the other parent now have legal recourse.

 

[1] 2018 BCCA 449 (CanLII) at para 6.

[2] Ibid.

[3] Para 14

[4] Para 16

[5] Para 22

[6] Para 26

[7] Para 27

[8] Para 29 citing D.B.S. at para 133

[9] Para 31

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