Family Lawyers face a daunting task on a daily basis- forcing often reluctant payors to divulge their true income,and to pay child support commensurate with that income. This week the Supreme Court of Canada has pronounced an important decision regarding retroactive child support in Michel v Graydon 2020 SCC 24, bringing further clarity to this ever-evolving area of the law.
Retroactive child support is child support money that should have been paid to a parent based upon the other parents true level of income, but wasn’t- typically because income was concealed, but sometimes because updated financial information was never pursued. It is, essentially, backpay, payable in a lump sum. The courts can order the responsible parent to pay, long after the fact, since child support is considered the right of the child, and it is a parent’s obligation to provide them with this financial support for their day-to-day care.
The parties in Michel v Graydon had ceased their common-law spousal relationship. Their child, AG, lived primarily with Ms. Michel, who was on social assistance. Mr. Graydon was to pay her child support every month based on his declared income of $40,000. Since Ms. Michel was on social assistance, the government collected the support payments. Once AG was an adult, Mr. Graydon ceased paying child support, but Ms. Michel later found out that Mr. Graydon had hidden his real income, which was much higher. Ms. Michel sought an order from the court for retroactive child support, but Mr. Graydon argued that since AG was now an adult, he should not have to pay any more child support. This case went to trial, was appealed at the BC Court of Appeal, and eventually ended up before the Supreme Court of Canada.
Under the federal Divorce Act, a parent does not have to pay retroactive child support if the child has since become an adult. However, this law only applies to formally married spouses – common-law spouses like Ms. Michel and Mr. Graydon fall under provincial family laws.
In BC, common-law spouses are governed by the Family Law Act, which is silent on retroactive child support. This decision, however, provides new guidance for the Family Law Act and sets a precedence for future cases involving retroactive child support. The court unanimously ruled that, unlike orders made under the Divorce Act, past child support orders under the Family Law Act can be varied to allow for retroactive child support, even if the child is now an adult. This means that the age of a child is no longer a barrier in obtaining retroactive child support. A parent can no longer ‘run out the clock’ by concealing their finances until the child’s 19th birthday
The interpretation and application of this precedent is very fact specific and it is likely that the court would require there to be some type of wrongdoing on the part of the payor. This would prevent the recipient from taking advantage of retroactive child support in order to avoid the determination of child support while the child is still a minor.
There is also a possibility that this decision will have an impact on the Family Maintenance Enforcement Program (FMEP). FMEP helps to enforce child support payments if there is a maintenance order in place that requires the payor to pay the recipient. The FMEP is able to collect child support until the child reaches the age of majority unless the child continues to be dependent because they are attending university, living at home, has a medical condition or disability or is unable to become self-supporting. Since retroactive child support can now be granted even after the child has reached the age of majority, this muddies the waters for the FMEP’s powers of enforcement and is something that the FMEP will hopefully provide guidance on in the future.