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In the most recent Supreme Court of Canada decision on family law, Michael c. Graydon, 2020 SCC 24, the Court settles a long-standing issue of whether child support can be recalculated retroactively once a child reaches adulthood. The short answer is that child support is the right of the child, and with this fundamental principle in mind, the Court is able to make retroactive adjustments to child support even where the child no longer depends on the beneficiary parent.
The facts of this case were quite simple. The parties lived in a common-law relationship and had one child. Shortly after their separation, they entered into a consent order for child support. This order was based on the payor earning $39,832 per year and paying $341 per month. The recipient was on social assistance and therefore her claim for child support was subrogated to provincial government authorities. The payor earned more than the reported income almost every year until the end of child support in 2012, when the child was 20 years old. Three years later, in 2015, the recipient requested a retroactive variation of child support from 2001 to 2012 and won at trial. The court awarded retroactive child support of $23,000.
The Honorable Justice Brown, writing for the majority of the Supreme Court, began by clarifying the controversy at issue in this case: Can child support be changed if the child is no longer a child? In the landmark retroactive child support case, DBS vs. SRG, 2006 SCC 37, the Court held that in originalclaims where the children had reached adulthood that authority did not exist under the Divorce law make a retroactive change. While the majority opinion in Michael c. Graydon suggests that it might be appropriate to reconsider this decision, they concluded that it was not necessary to do so since, in the case before the Court, the power was based on the legislation of British Columbia which applies to unmarried persons. Moreover, this was not an original request, but a variation of an existing consent order. In concurring reasons, the Honorable Mr. Justice Martin presents convincing arguments in favor of the reopening of this operation from DBS, which is the basis of its disagreement with the reasons of the majority (which it agrees with in the result).
The Court reaffirmed the following principles as fundamental to child support law:
- Alimony is a right of the child and cannot be negotiated by a recipient parent;
- Retroactive or historic child support orders bind the payor to their existing (and unfulfilled) legal obligations and are therefore not truly retroactive in a strictly legal sense;
- Retroactive or historic child support orders should not be exceptional;
- The paying parent’s threshold for misconduct is low and exists when they fail to pay the appropriate amount of child support based on their income;
- The recipient’s reason for delaying seeking court assistance sooner will be interpreted broadly and may take into account the recipient’s fear of retaliation and desire to isolate the children from conflict, domestic violence, and cost. prohibitive litigation; and
- The effective notice date, which would normally be the date on which an award would be retroactive, is not particularly relevant where the paying parent has engaged in blameworthy conduct (regardless of the degree of blame).
The Supreme Court of Canada reinstated the judge’s original decision to retroactively award $23,000 in child support. Interestingly, half of the award was to be paid to the child and the other half to the payee, which may be useful in future cases where the payor seeks to have payments made directly to the children, although this does not likely to occur only in extraordinary circumstances.
The concurring opinion of the Honorable Justice Martin is noteworthy for its full context on the historical basis of child support law, the impact of categorical prohibitions on access to justice, and the feminization of poverty. This opinion provides the background and context for the important policy considerations that underlie child support legislation. Specifically:
The holistic approach to family law requires that we consider the interconnected nature of child support issues, child poverty and the resulting feminization of poverty. Given the gender dynamics in child support law, legal rules cannot ignore the realities that shape women’s lives and open them up to experiences and risks less likely to be experienced by men: such as intimate partner violence, a higher proportion of unpaid domestic work accompanied by less work experience and lower wages, as well as the burden of most childcare obligations.
Lessons for child support payers
Michael c. Graydon acts as another strong warning to paying parents to provide full and candid disclosure at all times that child support is payable and to ensure that their obligations are met at relevant times. Paying parents should heed this warning, as the Court has made it clear that any action (or inaction) by payors to prioritize their interests over those of the children will not be tolerated by the courts and, apparently, He says courts are willing to broaden their analysis to ensure that children’s right to child support is firmly protected.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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