New Case For Retroactive Child Support: Michel v Graydon

• Published date: 23 September 2020
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Watson Goepel LLP
• Author: Anna Fei

Payor parents, take note: even where a child has reached the age of majority, or become financially independent and is no longer considered a "child of the marriage", the door is not closed on child support obligations that may have accrued in the past. A recent Supreme Court ruling means that the door remains open for recipient parents to apply for retroactive child support, even after the child in question is no longer a "child".

Michel v Graydon, 2020 SCC 24

The Supreme Court of Canada (SCC) released reasons on Friday September 18th for the case Michel v Graydon, 2020 SCC 24. This judgment (originally rendered last year) overturned the B.C. Court of Appeal's decision in Graydon v Michel, 2018 BCCA 449.

The parties were in a common-law relationship. After their relationship broke down, they entered into a consent order dealing with child support based on the father's stated annual income. However, it was found that the father had understated his income. The mother applied to retroactively vary child support to reflect his actual income; at the time of application, the "child" was an adult and no longer a "child of the marriage".

The hearing judge at the B.C. Provincial Court granted the application and ordered $23,000 in retroactive child support. On appeal, both the B.C. Supreme Court and the B.C. Court of Appeal determined otherwise and held that no retroactive award should be made.

At the Supreme Court of Canada, a unanimous court overturned both the BCSC and BCCA decisions and reinstated the order of the provincial court judge, requiring the father to pay retroactive child support.

In other words, with Graydon, the highest court in Canada has now reinforced the idea that there is no such thing as a "Get out of child support payments free card".

A Question of Jurisdiction:?? What Does the Act Say?

Graydon builds on the SCC's previous determination in DBS v SRG, 2006 SCC 37, which remains a leading authority, enshrining the core principles that underlie child support obligations.

In DBS, the SCC considered s. 15.1 of the Divorce Act:

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

In the court's view, 15.1 meant that the court could not award child support unless the child is a "child of the marriage" when the application is made.

However, in Graydon, the court stated that this restriction on child support...