The Supreme Court confirms that retroactive child support is akin to a debtor/creditor relationship that is not extinguished by a child’s age.
Prior to the Supreme Court’s ruling in Graydon, one of the first questions I would ask clients seeking retroactive child support was the age of the child and whether they were still enrolled in full-time schooling. The famous passage in the Supreme Court’s previous landmark decision in D.B.S. would ring in my ears: “… a court will not have jurisdiction to order support if the child in question was over 18 at the time the application was made, or if certain expenses occurred more than two years in the past. Under the Divorce Act, a court will not be able to make a retroactive award if the child in question is no longer a “child of the marriage”, as defined by s. 2, when the application is made.” If a child was on the cusp of graduation and over the age of 18, family lawyers found themselves rushing to complete the requisite Motion to Change to avoid the scrutiny of whether the Applicant had standing to seek retroactive support.
At long last, the Supreme Court in Michal v. Graydon clarifies the famous “child of the marriage” passage in D.B.S. that has been infamously used to challenge an Applicant’s standing to bring a retroactive support claim for a child that is over the age of majority and no longer is enrolled as a full-time student.
Firstly, in the majority decision, the Court makes a key distinction: D.B.S. was decided under s. 15.1 of the Divorce Act, meaning that the Application for support is being brought as a fresh claim or in the ‘first instance’. As a contrast, the Court in D.B.S. did not consider or decide the issue of retroactive variation under s. 17 of the Divorce Act – meaning that a pre-existing Order or Agreement was made and a recipient is now seeking to vary the original Order or Agreement. If you find yourself scratching your head at this distinction, the Court is saying plainly: if you have an existing Order or Agreement in place with regards to child support, it can be varied retroactively, regardless of the age or situation of the child.
Secondly, the majority stated in no uncertain terms that when considering a retroactive application, a court must consider the specific legislation under which the application has been brought. The majority decision makes clear that unless compelled by the applicable legislative scheme, courts should not allow payor parents to avoid meeting their child support obligations.
Chief Justice Wagner and Justice Martin agreed with the majority. However, they focussed on public policy considerations to achieve the same result. In a striking passage which is bound to be quoted in many future decisions, Justice Martin opines:
“Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre‑existing, free‑standing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation which does not evaporate or fade into history upon a child’s 18th or 19th birthday or their graduation from university. Under s. 152 of the FLA, a debt exists if the child qualified as a beneficiary at the time the support was due, irrespective of their status at the moment of the application. This reading not only accords with the text, legislative scheme, and purpose of s. 152, it promotes the best interests of children, enhances access to justice, reinforces that child support is the right of the child and the responsibility of the parents, encourages the payment of child support, acknowledges that there are many reasons why a parent may delay making an application, and recognizes how the underpayment of child support leads to hardship and contributes to the feminization of poverty.”
After stressing that a bar against applications for historical child support creates disproportionate hardship on children and their caregivers, most of whom are women, Justice Martin emphasized the importance of “re-framing” D.B.S. to focus on the broader societal context. Notably, Justice Martin sets out that child support payments can be retroactive to the “start” date of the obligation. Payor parents are inferred to be aware of the Child Support Guidelines and of their obligation to pay in accordance with their actual income. As a result, payors should be held accountable for missed payments and underpayment from the date the obligation arose. This is significant in that often recipients are pressured to accept lesser retroactive awards on the technicality that sufficient notice of the retroactive claim was not provided. Justice Martin makes it clear that payors should not be afforded any opportunity to curtail their financial obligation to their children based on technicalities.
Given the current climate of Motions to Change being brought due to the financial hardships caused by Covid-19, the caselaw flowing from Michal v. Graydon will present an interesting paradigm shift for many years to come. The Family Lawyers at Goodman Halioua LLP are experienced at bringing complex child support variation applications and would be pleased to assist you.
