Canada’s Supreme Court unanimously ruled on September 18, 2020, that an award for retroactive child support (back orders from missed payments) can be made even when the child in question is over the age of majority, Michel v. Graydon, 2020 SCC 24 (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18460/index.do). CBC published an article on it here: https://www.cbc.ca/news/canada/british-columbia/supreme-court-ruling-retroactive-child-support-1.5730547

This is a new interpretation of the law from the previous leading decision by that Court in D.B.S. v. S.R.G., 2006 SCC 37 (“D.B.S.”) where the Supreme Court of Canada ruled that child support could not be awarded retroactively under section 15 of the Divorce Act, after the child to be supported was no longer considered a “child of the marriage”. A child is no longer a “child of the marriage” when they are over the age of majority and are able to withdraw from parental care and control. An adult child will still be considered a child of the marriage if they are in full-time education or are unable to withdraw due to disability or illness.  Under D.B.S. the Court stated that retroactive child support orders could only be made while the child was still considered a child of the marriage, but once they became adults and independent, it was too late to make such a claim. 

Last Friday, the Supreme Court’s decision changed this by ruling that a British Colombia father owed $23,000.00 in back child support for his now 29-year-old daughter for the period of 2001 to 2012 when he had severely underpaid support after misrepresenting his income. The unanimous decision stated that this was not contrary to their previous decision in D.B.S. because in this case it was an amendment to a previously made child support order (under s. 17 of the Divorce Act) and not a brand new order (under s. 15 of the Divorce Act) which is what the D.B.S. case was based on. Furthermore, because the couple in this case was never married, the child support order from 2001 was made through provincial legislation, in this case British Colombia’s Family Law Act, and not the federal Divorce Act. The Court explicitly stated that provinces had the right to govern their own child support regimes. Because D.B.S. only dealt with the federal legislation, the Court said it would not apply to this case.

When making this decision, the Court was worried that ruling against the recipient mother and daughter would provide a further incentive to child support payor’s to try to avoid meeting their child support obligations by lying about or hiding their income. The Court consensus was that If the provinces wish to continue enforcement against parents who owe back child support, even if those children are now independent adults, they are clearly within their rights to do so. This ensures that blameworthy conduct is penalized and that parents and children who suffered economic hardship as a result of missed child support payments can recover what they ought to have received in the first place.

The Court also stated, “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. 153 of the British Colombia Family Law Act, 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. 153, it promotes the best interests of children, enhances access to justice, reinforces that CS 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.”

Parents making such a claim will have to prove that the delay was reasonable or justified in the circumstances.  The Court will also take into account whether making such a retroactive award will create a hardship for the payor. The Court will not allow child support recipients to wait to make their claim to accumulate a ‘windfall lump sum of retroactive support’ without justification and will endeavour to not put a payor in a precarious financial position when making an award. The result and objectives must be fair and balanced between the positive and negative consequences to both the recipient and payor, even when previous misconduct is at play. Regarding hardship, the Court also stated, “While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid.”

What this means for Ontarians

The Ontario Family Law Act, has almost identical language to British Colombia’s section 153, on which this order was based.

Section 37(2) and (21) of the Ontario Family Law Act, state as follows:

s. 37 (2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant’s or respondent’s circumstances or that evidence not available on the previous hearing has become available, the court may,

(a)  discharge, vary or suspend a term of the order, prospectively or retroactively;

(b)  relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c)  make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.

Section 37(2.1) has identical language but with regards to support for a child instead of support for a spouse or parent.

While the B.C. situation giving rise to the Supreme Court’s decision has not been tested in Ontario yet, it stands to reason that this Supreme Court decision would have the same implications for payor parents in Ontario as it does under British Colombia, especially given the similarity of the wording of both province’s Family Law Acts.  This means that payors owing back child support can still be held liable and forced to pay, even if the child is well past the age of majority and is no longer considered a child under the law. Recipients of child support, and even children themselves, who are meant to be receiving support payments and are not, or who are receiving payments that are too low compared to the payor’s income, can apply for retroactive changes far into the past, providing that they have a good reason for the delay in bringing such an application.

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