The Supreme Court of Canada (the “SCC”) released its written decision in the case of Michel v. Graydon, 2020 SCC 24. This was a case that involved the interpretation and application of section 152 of the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”). In a unanimous decision, the SCC upheld a decision made at the Provincial Court of BC level which found that section 152 of the FLA permitted an order for child support to be granted retroactively even if the application was made when the child at issue was no longer under the age of majority or a child as defined by the legislation.
The brief facts of the case involved a couple who had a child together and, after they separated they entered into an agreement which was documented by a Consent Order whereby the child would reside primarily with her mother and the father was to pay child support to the mother. The father continued to pay the same amount without adjusting it from 2004 until 2012 when his obligation to pay child support was terminated by a Court order in April 2012.
What transpired over the years was that the parties, for various and important reasons, did not review and adjust child support as they had agreed to do in their original agreement. When the child was over the age of majority, the mother made an application under section 152 of the FLA seeking child support for her daughter retroactively. The Provincial Court judge heard the matter at trial including testimony from the child herself who was an adult at that time and found that section 152 did not prohibit an application to be brought for child support retroactively if the child entitled to support was no longer a child as defined by the legislation. The judge found the father owed retroactive child support in the amount of approximately $23,000.00 and relied on the test for retroactivity that had been established and followed in an earlier and foundational SCC case known as D.B.S. v. S.R.G., 2006 SCC 37. (“DBS”)
DBS involved an interpretation of the provisions in the Divorce Act addressing child support including section 15 which address initial applications for child support.
In deciding a case on retroactive child support the Court must apply a two part test:
- Does the Court have authority to order retroactive child support?
- If so – should it? When answering this question the Court weighs the following a factors:
- Reasons for the applicant’s delay in bringing the application;
- Whether or not there was blameworthy conduct by payor parent; and
- Circumstances of the Child.
- Whether Hardship would result from an award for retroactive support
In addition to this test, which has since been applied regularly by lower Courts deciding retroactive cases, the SCC in DBS also made reference to the concept that section 15 of the Divorce Act cannot be used when the application is being made at a time when the child is no longer a child of the marriage as defined by the Divorce Act based on its interpretation of wording found in the Divorce Act.
Since DBS, Courts have generally interpreted, with some exceptions, this to mean that a Court is prohibited or without authority to make an order for child support retroactively if the child is no longer a child of the marriage at the time that the application is brought.
Importantly, the wording in section 152 of the FLA is different and was found not to have the narrow constraints as to the age of the child in its language.
As mentioned, the BC Provincial Court in Michel v. Graydon found that section 152 did not prohibit an order to be granted if the application was made when the child was no longer a child as defined by the FLA. The father in Michel appealed this decision to the British Columbia Supreme Court who overturned the lower Courts decision citing both DBS and another case out of BC, Dring v. Gheyle, 2018 BCCA 435 for the proposition that the Court does not have authority to grant an order for retroactive child support when the child is no longer a child. This Supreme Court of BC finding was appealed to the British Columbia Court of Appeal who relied on its earlier decisions in Dring v. Gheyle, 2018 BCCA 435 to uphold the BCSC’s decision. The appellant appealed to the SCC.
In its decision the SCC provided eloquent and thoughtful reasons that considered and spoke to the social importance of, and theory and intention behind, the payment of child support which is a fundamental and altruistic wish to see children of separated household benefit from the income available to both parents albeit in different households.
The SCC found that, if it were to interpret section 152 of the FLA narrowly, it would have an ongoing detrimental impact on the goal of ensuring that children are adequately and properly provided for by both of their parents after they separate.
The SCC expressed concern that the decision in DBS had been applied in a manner that resulted in the further feminization of poverty finding that women and children are disproportionately impoverished post separation than men.
In applying the test in DBS, the SCC found that s. 152 did provide authority to the Court to make an order for retroactive support. It then moved to discussing and applying the four factors in determining whether or not it was appropriate to make such an order.
The SCC found that there are many reasons that the recipients of child support may delay an application to seek more including, violence, lack of funds and focus of resources on child rearing responsibilities. As well, the SCC stated that the payor of support ought not to benefit from skirting an established obligation on the basis that the child was older, when the true obligation was up for determination by the Court. Instead the SCC found that a payor is in the best position to know what his or her income is and, if it has increased, he or she ought to ensure that he or she has adjusted the amount of child support being paid.
The Court stated that the circumstances of the child should be viewed more broadly and not simply,” is the child ok and can the child now meet his or her needs,” but rather review the overall impact that the lack of proper support has had on the child.
Finally, the Court found that the hardship on the payor of having to pay a retroactive child support order should be viewed in context with the benefits that the payor received over time by under paying and conversely the hardship that was endured by the recipient and children who did not receive the benefit of proper child support.
This case illustrates the importance of child support for the health and well being of families moving forward after separation and the crucial need to ensure that there are no systemic judicial prohibitions on ensuring that the children and the primary caregiving parent receive the support that he or she deserves.
