The Supreme Court of Canada recently clarified the law on retroactive child support orders under the Family Law Act, SBC 2011, c 25 (the “FLA”). The Court confirmed that judges can order retroactive child support even if that order was applied for after the child has turned 19 and has withdrawn from their parents’ charge. The Court’s decision affirms the child’s right to support and seeks to help remedy the burden women disproportionately face following a relationship’s breakdown.

The case is Michel v Graydon, 2020 SCC 24. Ms. Michel and Mr. Graydon had a child, A.G., in 1991 and separated in 1994. In 2001, they agreed that Mr. Graydon would pay Ms. Michel $341/month in child support. They based that amount on Mr. Graydon’s declared annual income of $39,385. As it turns out, Mr. Graydon’s income was more than that in 2001 and exceeded that amount every year between 2001 and 2012 except for 2004.

In 2015, Ms. Michel applied to the Provincial Court of British Columbia for an order under section 152 of the FLA. Section 152 allows judges to change, suspend, or terminate a child support order either prospectively or retroactively. The judge granted Ms. Michel’s application and ordered Mr. Graydon to pay Ms. Michel $23,000 in retroactive child support. The judge found that Mr. Graydon’s conduct was blameworthy, A.G. suffered as a result, and Ms. Michel hadn’t unreasonably delayed in bringing the application.

Mr. Graydon appealed to the Supreme Court of British Columbia. At issue was a previous decision of the Supreme Court of Canada, that of DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra, 2006 SCC 37 (“DBS”). In DBS, the Court interpreted section 15.1 of the Divorce Act, RSC 1985, c 3 (2nd Supp) which allows courts to order child support for “any or all children of the marriage”. One of the issues in DBS was that to qualify a “child of the marriage”, a child had to be under the age of majority or over the age of majority but unable to withdraw from their parents’ charge or obtain the necessities of life. The Court said that an application under section 15.1 had to be started while the child was still a “child of the marriage”. The Supreme Court judge in this case needed to determine whether that same restriction applied to Ms. Michel’s application. She concluded it did, so the Provincial Court judge didn’t have the authority to order retroactive child support.

The Court of Appeal for British Columbia dismissed Ms. Michel’s appeal, agreeing that the DBS restriction applied, leaving Ms. Michel to seek recourse at the country’s highest court.

The Supreme Court of Canada unanimously agreed that the Provincial Court judge’s order should be reinstated. Writing for the majority, Brown J. noted that the restriction from DBS was not a “sweeping principle” that that transcended the Divorce Act to apply to all other statutory schemes, regardless of legislative intent. He said that what matters is whether the FLA imposed any condition on the ability to apply for retroactive child support. It’s the FLA that governs courts’ authority to grant orders under section 152, not the Divorce Act.

Brown J. stated that if a statute doesn’t impose restrictions on the ability of a party to bring an application, courts shouldn’t look for those types of barriers. He noted that women disproportionately face economic burdens after a relationship breaks down and said that courts shouldn’t create incentives for parents who owe child support to avoid those obligations. He further noted that a retroactive child support isn’t really a “retroactive” order: it accounts for an obligation that the paying parent always had but previously avoided.

Child support is a right of the child. In this case, Mr. Graydon failed to disclose his income accurately in 2001 and failed to disclose the fact that his income was higher than $39,385 for all but one year between 2001 and 2012. As a result, Ms. Michel received less in child support than what A.G. was entitled to, resulting in a lower standard of living for A.G. Brown J. agreed with the Provincial Court judge that Mr. Graydon’s conduct is blameworthy and that A.G. suffered as a result.

If you’re looking to apply for retroactive child support, our office can assist. While the Court has confirmed that retroactive child support can be ordered even if the child is over the age of 19 and has withdrawn from their parents’ charge, it’s best not to delay bringing such an application.