Case Commentary: Michel v. Graydon Clarifies the Rules on Retroactive Child Support Orders

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The highest court in Canada has made it clear that payor parents cannot dodge their past child support obligations, simply on the basis that the child is an adult at the time of the application and no longer eligible for support.

On September 18, 2020, the Supreme Court of Canada delivered reasons for its decision (rendered 10 months earlier) in the case of Michel v. Graydon, 2020 SCC 24 (CanLII), helping pave the way for historical (ie. retroactive) support even after a child becomes an adult. 

In the case before the court, the parties had a child during their common law relationship. At the end of the relationship, they entered into a consent order for child support based on what later turned out to be understated income of the father.  Ms. Michel subsequently applied under the B.C. Family Law Act (“FLA”) to retroactively vary child support for the duration of the 11 year order.  The lower court found that Mr. Graydon owed $23,000 in retroactive child support.  The provincial appellate courts overturned the award as the child was now over the age of majority and therefore no longer a “child of the marriage” as seemingly required for historical child support in the Supreme Court of Canada’s decision D.B.S. v. S.R.G., 2006 SCC 37 (“D.B.S.”), at paragraph 89.

On appeal to the Supreme Court of Canada, a unanimous court rendered its decision from the bench – reinstating the trial judge’s order of $23,000 in retroactive child support, citing statutory interpretation and policy considerations for its decision.

While D.B.S. remains a leading authority, and the factors set out therein continue to shape the law on retroactive child support, the S.C.C. distinguished its decision in Michel v. Graydon from D.B.S. on the eligibility point, on the basis that D.B.S.’s bar against determining historical support once a child reached adulthood was limited to original child support orders under s. 15.1 of the Divorce Act; the court held that D.B.S. did not decide the issue on variation of existing orders.

In his reasons for judgment interpreting the variation provision of B.C.’s provincial statute (s. 152 of the FLA), Justice Brown found no limitations on the ability to order retroactive child support and in fact went so far as to state that “[s]training to read jurisdictional impediments into s. 152 that would prevent a court from ordering retroactive child support in circumstances in which such an order is warranted would defeat that legislative purpose and create a perverse incentive for payor parents to avoid their obligations” (para. 28).

In concurring reasons, Justice Martin, while endorsing Justice Brown’s statutory interpretation and analysis, went a step further and focussed on the overarching policy considerations at play.  To procedurally bar historical child support claims “prevents access to justice, runs counter to the best interest of many children, gives rise to an under-inclusive outcome, and reinforces patterns of socio-economic inequality” (para. 72).  While declining to make a determination in this case on the apparent jurisdictional bar on retroactive child support in original orders under s. 15.1 of the Divorce Act, Justice Martin suggested in obiter that this issue is “ripe for reconsideration” (para 107) in an appropriate case.

While one could argue that the repercussions of this case are narrow in scope, limited to an interpretation of B.C.’s provincial legislation on variation of child support, the “message” in the judgment appears much broader reaching – unmet child support obligations are a debt to be paid and payor parents will no longer be granted immunity from paying this debt simply because the child has reached adulthood.

Retroactive calculations of child support (and spousal support) can be easily done using DivorceMate’s Tools software.  A series of calculations for past years as far back as 2010 can be undertaken simply by changing the year of the calculation, inputting the parties’ incomes at the time, the child’s age, any applicable special or extraordinary expenses incurred on behalf of the child that year, and any related tax deductions or credits in place during that year.  Watch for future training sessions for more details.