‘Til [Retroactive Child Support] Do Us Part: The Quagmire of Child Support

< Back to Blog
April 29th, 2021
As all separated parents are deemed to know, child support payments are similar to young puppies.  If left unattended, they will wreak havoc on the lives of co-parents (payor and payee), and their children.  To flog the analogy, unattended child support payments similarly get larger and more destructive as time passes.  A payee’s lack of funds to support the living conditions, growth and development of the children, combined with the oft-accompanying conflict and resentment between co-parents, has a trickle-down effect to the detriment of the children of separated parents.  For the payor (in British Columbia), the debt becomes a growing burden that can result in loss of freedoms, including imprisonment.

For a brief overview of Child Support obligations in British Columbia, please see my post here.

Recent SCC Decision on FLA re Retroactive Child Support

Michel v Graydon, 2020 SCC 24 is the Supreme Court of Canada’s (the “Court”) most recent word on Canadian courts’ enforcement of a child’s right to support from its parents.  The decision is specific to British Columbia’s Family Law Act, SBC 2011, c 25(the “FLA”), as it primarily interprets s. 152 of the FLA.  The Court grapples with its previous decision in DBS v SRG2006 SCC 37 (“DBS”) which interpreted s. 15.1 of the (recently amended) Divorce Act, RSC 1985, c 2 (2 nd Supp) (“Divorce Act”) to preclude courts from granting an order on an original application for retroactive child support which is taken after the child is no longer a “child of the marriage” as defined by the Divorce Act.  The Court declined to follow its interpretation of the Divorce Actin its interpretation of section 152 of the FLA.

Facts

In Michel v Graydon, the payor (the father) understated his income when the parties came to a support agreement for their child in 2001.  He thus paid less child support than his income-dependent obligation – pursuant to the Guidelines- on the basis of insufficient information provided to the payee (the mother).  The mother was dependent on income assistance or disability benefits during the child’s childhood, and was required to assign her right to child support to the Minister under the Employment and Assistance Act, SBC 2002, c 40.  The Minister never authorized an application to review the child’s support.  The payor sought and received an order to terminate his support obligations on April 30, 2012.  In January of 2015, the payee brought the originating application to retroactively vary child support from April 2001 to April 2012 to reflect the payor’s actual income during that time.

The payor, in essence, relied upon the Court’s decision in DBS to say that as the originating application was brought after the child was no longer a “child of the marriage”, the Court was unable to provide an award to the payee.  The Court contrasted the wording of s. 152 of the FLA to its decision in DBS, and came to a different conclusion.  The Court depended on a broad and purposive interpretation of s. 152 within the scheme of the FLA to find that s. 152 is a legislated avenue for courts to retroactively change any child support order, irrespective of the child’s dependency on its parents at the material time.  The decision is based solely on the provisions of the FLA, and the Court is clear that applications under the Divorce Act may merit a different analysis, as may applications under different province’s Family Law legislation.

Considerations for Payors and Payees of Child Support in British Columbia

The Court took the opportunity to outline important policy considerations while analyzing an application for retroactive child support.  It looked at the legislative history of s. 152 of the FLA, as well as the Court’s analysis in DBS.  From DBS, the Court emphasized the principle that:

….child support is the right of the child; that right cannot be bargained away by the parents; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent [para 38 of DRB, quoted at paras 10 and 60 of Michel v Graydon].

The Court also confirmed the necessary considerations when reviewing an application for retroactive child support, originally set out in DBS.  Specifically that (in addition to the quote above), retroactive awards are not confined to “exceptional circumstances” or “rare cases”, as they are not truly “retroactive”.  Retroactive support merely holds payors to the legal obligation they always had to pay support commensurate with their income [para 10 of Michel v Graydon].  The Court noted, quoting from DBS that a court should consider:

a)Whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances; 
a.  Martin J. provided clarification in the minority decision (agreeing in result with the majority):
i.  Martin J. quoted DBS that “the payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility”, and that to encourage certainty, retroactive awards would generally go back no further than three years prior to the date when effective notice was given to the payor [para 62].
ii.  Martin J. explains that “the idea behind requiring some form of notice is fairness:  it is about having and sharing accurate information so everyone can meet their legal obligations and plan accordingly.  Payor parents should be able to rely on the fact that the payments made in good faith and based on accurate information are meeting their legal obligations.  Recipient parents should be able to rely on the fact that the amounts paid are what is owed.” [para 128]
iii.  To further clarify, Martin J. noted that the Guidelinesmay be taken as effective notice of child support obligations [para 130].
b)  The conduct of the payor parent;
c)  The circumstances of the child; and
d)  The hardship the award creates for the payor parent.
a.  Martin J. notes that 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 [para 125].

To Conclude
As in most things, diligence and the appropriate perspective will likely be the best approach to child support obligations in British Columbia.  Please seek legal counsel for specific advice on any of the above.