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Posted on October 16, 2020 October 16, 2020 in Family Law
Don’t Try to Run Out the Clock
On September 18, 2020, the Supreme Court of Canada released the Reasons for Judgment in Michel v. Graydon, 2020 SCC 24, overturning the British Columbia Court of Appeal’s decision in Graydon v. Michel, 2018 BCCA 449. The Supreme Court essentially told payor parents that, just because your child is no longer defined a “child”, you aren’t off the hook for retroactive child support you may owe.
The parties in Michel v. Graydon were in a common law relationship and had one child of the relationship, “A”. who was born in December, 1991. In 1994, the parties separated and, by way of a consent order, Mr. Graydon agreed to pay child support for A based on his stated annual income. Lo and behold, Mr. Graydon understated his income for every year – except 2004 – until his child support obligation was terminated in 2012. When it was discovered that Mr. Graydon had been understating his income, in 2015 Ms. Michel applied under Section 152 of the British Columbia Family Law Act for retroactive child support. The hearing judge ordered Mr. Graydon to pay $23,000.00 in retroactive child support. Mr. Graydon appealed and the Supreme Court of British Columbia allowed his appeal, setting aside the hearing judge’s order, concluding that “an application for child support under the federal Divorce Act had to be made while the child remained a “child of the marriage” was equally applicable where child support was sought under the FLA.” Ms. Michel appealed to the British Columbia Court of Appeal, who dismissed her appeal. She appealed again to the Supreme Court of Canada.
Supreme Court of Canada Decision
The Supreme Court of Canada held that Ms. Michel’s appeal should be allowed and the hearing’s judge’s order is to be reinstated. The reason? The British Columbia Family Law Act “Section 152 … authorizes a court to retroactively vary a child support order, irrespective of whether the beneficiary is a “child” at the time of the application, and irrespective of whether the order has expired.”
Mr. Graydon had argued that the leading case that enshrines the principles that underlie child support obligations in Canada – D.B.S. v. S.R.G., 2006 SCC 37 – created a general rule that the court can only deal with retroactive child support when the child is still properly a “child” under the legislation, regardless of whether the court was dealing with an original application or a variation of an existing order. Justice Brown, writing for the majority, held that D.B.S. dealt with the narrow issue of the Divorce Act section 15.1, which meant that a court could not award child support unless the child was still a “child of the marriage” as defined in the Divorce Act at the time the original application was made. In Michel v. Graydon, the issue was different – this was about the variation of an order, pursuant to section 152 of the FLA, that was already in place– and, therefore, the same restrictions do not apply. The Supreme Court of Canada stated that, “[u]nless compelled by the applicable legislative schemes, courts should avoid creating any incentive whatsoever for payor parents to avoid meeting their child support obligations”. Section 152 of the FLA actually created an “avenue” to allow recipient parents to claim retroactive child support, regardless of whether the child was still a “child” at the time the recipient payor made the claim.
It is important to note, as we are in Ontario, the Ontario Family Law Act has similar legislation as the British Columbia Family Law Act that provides the came opening for a claim for retroactive child support.
Mr. Graydon’s conduct in this matter was also at issue. He knowingly understated his annual income – except in 2004 – causing A and Ms. Michel to suffer. Retroactive child support is nothing exceptional, especially in a case where the payor underrepresents his income, but is simply the means in which to remedy that a child was not provided with what they should have been.
The Supreme Court of Canada was clear to state that nothing in this case takes away from the important principles of child support, as stated in D.B.S. Rather, this case reinforces these principles, which are:
Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the parent’s relationship;
Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together;
Child support owed will vary based upon the income of the payor parent and is not simply to provide the “necessities of life”;
Retroactive child support merely hold the payors to their legal obligation they always had – it is not truly “retroactive”;
Retroactive awards are not “exceptional” or only to be in “rare cases”; and
In determining a retroactive award, there is to be balance between the payor parent’s interest in certainty in his or her obligations with the need for fairness and flexibility, which includes looking at whether the recipient parent’s delay in seeking the retroactive award was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.
In a concurring decision, Justice Martin agreed with the majority’s finding, and went on to hold that, in addition to the reasons outlined by the majority, there are important policy reasons for the decision in this case. These include:
Unmet child support obligations, whether arrears or not yet judicially recognized amounts owing, are a valid debt that must be paid, just like any other financial obligation, regardless of the quantum.
If the Court had ruled that the historical claims could not be made, the court would not have recognized that family law calls for an approach that takes into account the broader social framework about how family dynamics operate.
Separation and divorce contribute to child poverty, which places a disproportionate burden on women, as women are still to this day responsible for the bulk of child care in Canada.
If another conclusion would have been reached, the court would have allowed the payor to ‘get away with’ their own blameworthy conduct and putting their own interests over their children.
Three important takeaways from this case for payor parents are:
Do not knowingly or intentionally understate your income to the recipient parent – it will catch up with you by way of one rather large bill.
Do not try to “run out the clock” and hope that, because your child is now independent, you won’t owe child support. You will owe, and quite frankly, your child is independent in spite of your indifference to supporting them in become independent, not because of you providing less than what you should have.
If you and the recipient parent were still together, the child would enjoy a standard of living of that you could both provide, together. When you don’t pay, or underpay, you’re depriving the child of that standard of living, which only hurts the child.
If you think you might have a claim for retroactive child support, or need assistance with other family law issues, please contact our office and speak with one of our experienced family law lawyers today.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.
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