The Supreme Court of Canada rarely comments on child support issues. So its judgment in Michel v. Graydon, 2020 SCC 24, released September 18, 2020 answers—at least in part—a vexing issue that has troubled family law practitioners (not to mention parents paying or receiving child support) for some time: can a parent seek a retroactive child support award even after the parties’ child has reached adulthood and is self-supporting?
This issue arises when a parent does not pay, or underpays, child support for a period of time before the child ceases to be a “child” for the purposes of child support legislation. A child remains a "child" of the marriage when he or she is under the age of majority (which in B.C. is 19) or is over the age of majority but remains “unable, because of illness, disability or another reason (such as attending post-secondary school), to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians”.
Until today, the leading case on retroactive awards of child support was D.B.S. v. S.R.G. In D.B.S., Canada's top court found that s. 15.1 of the Divorce Act permitted the Court to make an original child support order only if “at the material time” the child was still a "child" as defined above. The Supreme Court in D.B.S. held that the “material time” was the date of application and, as a result, the court had no authority to grant a retroactive order for child support by way of an original order if the child was no longer a “child of the marriage” at the time of application. Many courts had interpreted this to mean that retroactive varations of child support were also foreclosed for grown-up children.
In Michel, the parties had one child. The father paid child support over the years, but his actual annual income was in fact greater than what he disclosed. In 2012, the father successfully applied to terminate his child support obligation. In 2015, the mother applied for a retroactive variation of child support for the 2009-2012 period. Before the Provincial Court, the father took the position that since the child was not a “child” for the purposes of child support in 2015 (the time the mother brought the application), the court lacked jurisdiction to grant an order retroactively varying child support. The provincial court justice disagreed and ordered retroactive support.
The father appealed to the B.C. Supreme Court, which allowed the appeal on the basis that an application for child support had to be made while the child was still a “child." The mother appealed that decision to the Court of Appeal at the same time the Court of Appeal released its judgment in Dring v. Gheyle, 2018 BCCA 435, in which the Court of Appeal held that the Family Law Act did not authorize a court to retroactively vary child support if the beneficiary was not a “child” at the time. The mother’s case ultimately made its way to the Supreme Court of Canada.
The Supreme Court in Michel concluded that Dring was incorrectly decided and reinstated the provincial court judgment in Michel, determining that the Family Law Act allows the Court to retroactively vary a child support order, even if the child in question is no longer a “child” and even if the initial order had expired.
Cases decided after D.B.S. had attempted to grapple with the implication of this finding on provincial child support legislation, and also on whether the same logic applied to variation applications under the Divorce Act. The Supreme Court of Canada in Michel at least answers the first question: depending on the language of the Provincial legislation, retroactive variations of child support are permissible, even after the child no longer qualifies as a “child” under the applicable legislative scheme. Put another way, the Court’s decision in D.B.S.does not foreclose a retroactive award if the legislative scheme appears to allow it.
B.C.'s legislative scheme
Turning to B.C.'s Family Law Act, there are two sections empowering the Court to make orders respecting child support. Section 149 authorizes initiating applications for support and s. 152 allows child support orders to be varied.
Section 149 allows a court to make an order requiring a child's parent or guardian to pay child support. The section then specifies who can make that application -- the child, the child's parent or guardian or someone else acting on behalf of the child.
Section 152 allows the court to “change, suspend or terminate an order respecting child support” and to “do so prospectively or retroactively“ without reference to who can ask the court to make this change.
In Michel, Brown J. (writing for the majority) determined that the language of the Family Law Act permits retroactive variations of support as a matter of statutory interpretation for the following reasons:
1. The now-repealed Family Relations Act provided that for both original and variation applications “any person may apply for an order … on behalf of a child”. Section 152 by contrast contains no reference to the defined term “child” that might limit the ability of the Court to vary child support orders to circumstances where the legislative definition of “child” is met.
2. Other parts of the Family Law Act limit the types of persons who can bring an application. For example, section 149 expressly limits the type of people who can bring an original application for child support to the child’s parents and guardians, the child itself, or a Minister to whom the right to pursue child support has been assigned. Section 152 contains no such limitation.
3. Section 152 says that the Court may “terminate” child support orders. If applications under s. 152 could only be brought where a child retains the legislative status of “child”, a parent who sought a termination of child support after a child had reached independence would have no standing to pursue that relief and no way of terminating an order.
Accordingly, the Supreme Court concluded that under the Family Law Act, the Court has jurisdiction to retroactively vary a child support order even after the child in question no longer qualifies as a “child” for legislative purposes.
In concurring reasons, Justices Wagner and Martin also looked at the broader policy reasons that justify retroactive awards, even after the date a child is no longer dependent.Given that child support is the right of the child, impeding retroactive awards hurts children’s access to justice: there is no reason to read child support legislation as wiping out obligations due to children just because a claim comes “too late”. Further, there are a complex reasons why a parent may delay an attempt to collect retroactive child support, including “fear of reprisal/violence from the payor parent; prohibitive costs of litigation or fear of protracted litigation; lack of information or misinformation over the payor parent’s income; fear of counter-application for custody; the payor leaving the jurisdiction or recipient unable to contact payor; illness/disability of a child or the custodian; lack of emotional means; wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement; ongoing discussions in view of reconciliation, settlement negotiations, or mediation; and the deliberate delay of the application or the trial by the payor.” The Court also touched on the continuing gender inequality and vulnerability of women who form the majority of recipient parents.
Justices Abella and Karakatsanis concurred with both sets of reasons.
What the Supreme Court of Canada's decision in Michel means for future cases
- Does the logic in Michel apply to variations under s. 17 of the Divorce Act? The answer is probably yes. Just like the Family Law Act, section 17 allows the court to retroactively vary, rescind or suspend a support order “on application by either or both former spouses”. There is no reference to “child” in this section, and a person could retain the status of “former spouse” even if a child is no longer a “child of the marriage”. Nothing in s. 17 appears to expressly limit the ability of courts to retroactively vary support orders. Accordingly, orders under s. 17 to retroactively vary child support obligations can be made even after a child ceases to be a “child of the marriage”.
- While a retroactive variation is permissible, what about a retroactive originating order under the Family Law Act? While s. 152 does not have restrictions as to who can bring the application nor does it refer to the definition of “child”, section 149 contains both of these restrictions. Section 149 says the court can make an order requiring “a child’s parent” to pay child support. If the child is no longer a “child” for the purposes of the legislation, there is no “child’s parent” against which an order could be made. As a matter of statutory interpretation then, the Court should not grant originating orders for child support under the Family Law Act after the date a child ceases to be a “child” for the purposes of the Family Law Act.
- And what about retroactive originating orders under the Divorce Act? Again, section 15.1 of the Divorce Act seems to restrict originating orders to orders requiring a spouse to pay for the support of any or all “children of the marriage”. Section 2 of the Divorce Act defines “child of the marriage” as a child who “at the material time” is under the age of majority or unable to withdraw from the care of his or her parents. The Court in D.B.S. held that the “material time” is the time of application,and if that holding survives, then no originating order could be made after the date a child ceases to be a “child of the marriage”. However, both Brown J. and Wagner J. indicate that the interpretation in D.B.S. of “material time” as meaning the date of application “might merit reconsideration”. The overall tenor of Michel is a commitment to ensuring payor spouses meet their obligation, and the Supreme Court of Canada seems to be inviting a reconsideration of this issue.
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