The Supreme Court of Canada was tasked with clarifying some of the confusion left by paragraph 89 of its 2006 case, D.B.S 2006 SCC 37. D.B.S was the previous seminal case on the issue of historical/ retroactive child support, however now, Michel v Graydon 2020 SCC 24 has provided us some clarity on the outstanding questions left by D.B.S.

Background

The parties were in a common-law relationship. After their relationship ended, they entered into a consent order for child support based on Mr. Graydon’s stated income. Throughout the child’s life, the father had refused to give regular financial disclosure, and it was determined later that he had historically been significantly understating his income and as a result, underpaying child support. Ms. Michel applied to the courts for an Order for retroactive child support based on his actual income, on the basis that Mr. Graydon had substantially underpaid child support while his daughter was a child of the marriage.

The British Columbia lower court made a ruling that Mr. Graydon was to owe a retroactive variation in child support payments under the B.C Family Law Act on the ground that the income he had stated for many years was substantially lower than his actual income which the original support order was based on. The B.C Court of Appeal overturned the lower court’s decision based on an analysis of D.B.S and found that because the child was now over the age of majority and no longer a “child of the marriage”, the court did not have jurisdiction to make a variation. The Supreme Court of Canada reinstated the lower courts decision on the basis that child support is the right of the child and a payor parent should not be able to escape their responsibility simply because the child is now older. The obligation to pay existed prior to the child reaching the age of majority and the obligation to pay that support based on actual income should exist.

Analysis

Following D.B.S we were left with confusion surrounding when a court may order “historical child support” which describes a claim for retroactive child support for an individual who no longer is entitled to child support at the time the support claim was started. Such individuals would be disqualified because they no longer fall under the definition of “a child of the marriage”.

It is important to note that the 4 factors set out in D.B.S to aid the court in its analysis for determining whether a historical order shall be made, still remain good law. However, what Michel v Graydon sought to clarify, was whether an Order for retroactive support can be made regardless of the status of the individual at the time the application was brought. In making its determination, the court took part in extensive statutory interpretation of the Divorce Act and numerous provincial legislations, to get to the root of the legislative intention surrounding child support. The majority of the Supreme Court was in agreement that child support is the right of the child and someone should not be able to escape their financial responsibility on a technicality or because they successfully bamboozled the other parent regarding their income for long enough that the child became disqualified for a retroactive order.

The decision of the Supreme Court in Michel v Graydon can be summed up very clearly based on three major takeaways. One, D.B.S. does not mean that a court cannot make an order for retroactive child support under Section 17(1) of the Divorce Act. Two, in determining whether a court has jurisdiction to award retroactive support depends on the wording of the provincial statute itself. Lastly, that the B.C legislature in its writing of the Family Law Act did not intend to prevent a court from awarding a retroactive support order when a child ceases to be defined as a “child of the marriage”.

Clearly, we now know that it is unlikely that the courts will interpret provincial child support legislation to include the intention of restricting retroactive child support claims. So long as this is true, it will be irrelevant if s.15.1 of the Divorce Act bars a claim for retroactive child support, so long as you are still able to pursue that relief under your applicable provincial statute.
 

Ultimately, the goal of the Supreme Court, in this case, was to show payor parents that they cannot escape their child support obligations on technicalities or narrow and construed interpretations of provincial statues. The obligation to support a child exists irrespective of whether one parent has pursued a claim against the other to enforce support since child support is a continued obligation owed independently to the child. Child support is owed from the moment it ought to have accrued no matter the length of the delay.

Keep in mind that while Michel v Graydon does not answer every outstanding question about retroactive child support, however, the Supreme Court will get another chance to further clarify the issue when it hears Colucci v. Colucci (2019), 26 R.F.L. (8th) 259 (Ont. C.A.) ("Colucci #2") later this year. This case is expected to be about the test to order a retroactive reduction in child support. Stay tuned for the future blog on Colucci #2.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.