Family Law: Retroactive Child Support
Friday, September 18, 2020 - Filed in: Courts
In Michel v. Graydon, 2020 SCC 24, SCC # (38498):
"M and G were in a common law relationship and are the parents of A, born in 1991. After M and G separated in 1994, A lived with M, and G agreed to pay child support based upon his stated annual income. This was formalized in a consent order made in 2001. G had, however, understated his income from the time of the consent order — with the exception of 2004 — until his child support obligation was terminated by court order in 2012. In January 2015, M applied under s. 152 of British Columbia’s Family Law Act (“FLA”) to retroactively vary child support for the period between April 2001 and April 2012, to reflect G’s actual income during that period of time. The hearing judge allowed M’s application and G was ordered to pay $23,000 in retroactive child support. The Supreme Court of British Columbia allowed G’s appeal and set aside the hearing judge’s order. In its view, the Court’s conclusion in D.B.S. v. S.R.G., 2006 SCC 37,  2 S.C.R. 231, 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. The Court of Appeal dismissed M’s appeal. "
The SCC allowed the appeal (9:0), (with two judges writing separate concurring reasons, with which two other judges concurred), reinstated the order of the hearing judge.
Justice Brown wrote as follows (at paras. 2, 8-11, 15-19, 21, 28, 33, 35-37):
"In D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37,  2 S.C.R. 231, this Court interpreted s. 15.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), as precluding a court from granting an order on an original application for retroactive child support unless the child beneficiary is a “child of the marriage”, as defined in the Divorce Act, when the application is made. This appeal raises the issue of whether the court’s authority to grant an order under s. 152 of the Family Law Act, S.B.C. 2011, c. 25 (“FLA”), is similarly confined. More particularly, is it possible to vary a child support order under the FLA after the order has expired, and after the child support beneficiary ceases to be a “child” as defined in the FLA?
After Ms. Michel’s appeal was heard, but before judgment was rendered, the Court of Appeal sat as a five‑member division in Dring v. Gheyle, 2018 BCCA 435, 17 B.C.L.R. (6th) 30. In Dring, a majority of the Court of Appeal held that the FLA does not authorize a court to retroactively vary child support if the beneficiary is not a “child” at the time of the application. In light of Dring, Ms. Michel’s appeal was dismissed. D.B.S., the Court of Appeal held, established a general rule precluding all orders for child support where the application is brought after the beneficiary is no longer a “child”. It followed that the hearing judge did not have authority to grant the order for retroactive child support that Ms. Michel sought.
I disagree. Section 152 of the FLA 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. The order of Smith Prov. Ct. J. should therefore not have been disturbed.
In D.B.S., this Court endorsed certain important principles governing orders for child support (including retroactive child support) that merit restating here:
- Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child’s parents (para. 38);
- Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);
- The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” (paras. 38‑45).
- Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);
- Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5); and
- In determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations must be balanced with the need for “fairness and . . . flexibility”. A court should consider whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para. 133).
Further, this Court cautioned that, when deciding an application for retroactive child support, a court must analyze the statutory scheme in which the application was brought (at para. 54): “different policy choices made by the federal and provincial governments must be respected” (para. 55). While a “retroactive” child support award does not impose a new obligation but simply serves to enforce a past unfulfilled obligation, the mechanism for enforcing that obligation must be found in the governing legislative scheme. A court can enforce an unfulfilled child support obligation only where the governing legislation provides a mechanism for enforcement, and only in accordance with that mechanism.
Significantly, however, the Henry appeal arose from an application to vary an existing child support order which engaged s. 17 of the Divorce Act. Unlike s. 15.1, ss. 17(1) and 17(4) do not refer to “children of the marriage”. While it may therefore not have been strictly necessary to address jurisdiction in relation to the Henry appeal, it remains that “a case is only an authority for what it actually decides” (Quinn v. Leathem,  A.C. 495 (H.L.), at p. 506). By referencing the phrase “child of the marriage”, Bastarache J.’s comments were plainly limited to the jurisdictional issue that arises under s. 15.1 of the Divorce Act, which he had already canvassed in his reasons (D.B.S., at paras. 88‑89). I therefore reject Mr. Graydon’s suggestion that the discussion of jurisdiction in relation to the Henry appeal was implicitly intended to apply to retroactive variation orders under s. 17 of the Divorce Act, without any reference to the language of that provision. On my reading, the Court did not consider or decide the issue as it was unnecessary to dispose of the appeal. D.B.S. therefore does not stand for the proposition that courts can retroactively vary child support only while the child beneficiary is a “child of the marriage” (see Colucci, at paras. 12‑14; Dring, at paras. 190‑200, per Hunter J.A., concurring; Brear, at paras. 46‑50).
Nor do I accept that the Court in D.B.S. stated a sweeping principle that transcends the Divorce Act to embrace all other statutory schemes and operates irrespective of legislative intent. Indeed, the Court insisted that provinces remain “free to espouse a different paradigm” than that adopted by Parliament in the Divorce Act (para. 54). And where they do so via legislation establishing an application‑based regime such as the FLA, and where an application for retroactive child support is brought thereunder, it is that legislation which governs a court’s authority to grant retroactive child support (paras. 55‑56).
Moreover, courts should not be hasty to recognize jurisdictional impediments that bar applications for retroactive child support. This is because jurisdictional constraints are “inimical to the principles and policy objectives articulated in [D.B.S.]” (Brear, at para. 60), and may be imposed only where the legislature has clearly intended that they be imposed. Such constraints must therefore be apparent in the statutory scheme, bearing in mind that preventing courts from even considering an award for retroactive child support would prevent enforcement of an unfulfilled legal obligation even in the most appropriate of circumstances. As Sharpe J.A. explained in Colucci:
I can see no reason why the court should be deprived of jurisdiction to consider the request of a recipient parent who struggled to support the children and to shift part of that burden to the payor parent if there was a change in circumstance that would have justified a variation while the children were still children of the marriage . . . . [A] regime that gave payor parents immunity after the children ceased to be children of the marriage would create a perverse incentive. If the payor parent is to be absolved from responsibility once the children cease to be “children of the marriage”, the payor whose income increases might be encouraged not to respond to his or her increased obligations in the hope that the reciprocal spouse will delay making an application for a variation increasing support until the children lose their status to avoid opening the door to an increased obligation . . . . [para. 26]
Unless compelled by the applicable legislative scheme, courts should avoid creating any incentive whatsoever for payor parents to avoid meeting their child support obligations (D.B.S., at para. 4). Permitting retroactive child support awards, as this Court recognized in D.B.S., is perfectly consistent with the child support system (para. 60).
I turn now to interpreting the relevant provisions of the statutory scheme at issue here: the FLA. For the purposes of determining who is eligible to receive child support, the FLA defines the term “child” in different ways. While “child” is defined in s. 1 as meaning “a person who is under 19 years of age”, the FLA expands that general definition in relation to a parent or guardian’s duty to provide child support (ss. 146 and 147). In essence, the FLA (like the Divorce Act ) says that children who are dependent on their parents are eligible to receive child support.
Further, the FLA authorizes two kinds of applications respecting child support. First, s. 149(1) and (2), taken together, authorize a child’s parent or guardian, the child, a person acting on behalf of the child or (if the right to child support has been assigned to a minister) a minister to apply for an order of child support. Secondly, s. 152 authorizes a court to “change, suspend or terminate an order respecting child support”, and to do so prospectively or retroactively, so long as the court is “satisfied that at least one of the following exists, and take[s] it into consideration”:
(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;
(b) evidence of a substantial nature that was not available during the previous hearing has become available;
(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.
It is now trite law in Canada that statutory interpretation entails discerning legislative intent by examining statutory text in its entire context and in its grammatical and ordinary sense, in harmony with the statute’s scheme and objects. In this case, this Court’s task of interpreting s. 152 of the FLA has been lightened considerably by persuasive judicial analyses at other courts regarding its meaning (see Dring, at paras. 133‑73, per Hunter J.A., concurring) and the meaning of similar provisions in other legislation (see Brear, at paras. 29‑50, per Pentelechuk J.A.; Colucci, at paras. 8‑31, per Sharpe J.A.; Buckingham v. Buckingham, 2013 ABQB 155, 554 A.R. 256, at paras. 40‑48, per Strekaf J. (as she then was)).
In sum, the text of s. 152 and the scheme of the FLA indicate that the Legislature authorized a court to vary any child support order, irrespective of whether the beneficiary remains a dependent child, and irrespective of whether the order continues to require payment. This makes sense given that one of the purposes for replacing the Family Relations Act with the FLA was to “expan[d] on the circumstances under which a court may vary a child support order” (British Columbia, Ministry of Attorney General, White Paper on Family Relations Act Reform: Proposals for a new Family Law Act (2010), at p. 117). Straining 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.
Failure to disclose material information is the cancer of family law litigation (Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.), at para. 9, quoted in Leskun v. Leskun, 2006 SCC 25,  1 S.C.R. 920, at para. 34). And yet, payor parents are typically well aware of their obligation as a parent to support their children, and are subject to a duty of full and honest disclosure — a duty comparable to that arising in matrimonial negotiations (Brandsema, at paras. 47‑49). The payor parent’s obligation to disclose changes in income protects the integrity and certainty afforded by an existing order or agreement respecting child support. Absent full and honest disclosure, the recipient parent — and the child — are vulnerable to the payor parent’s non‑disclosure.
The only true dispute before the hearing judge in relation to the factors governing retroactive child support was whether Ms. Michel’s delay in seeking retroactive support was reasonable. The hearing judge accepted her evidence that she did not apply for retroactive support because she had suffered a severe injury and because her right to support was assigned to the Minister. I see no basis for interfering with the hearing judge’s conclusion that Ms. Michel’s delay was reasonable in light of those circumstances. Even were it otherwise, the reasonableness of Ms. Michel’s delay had to be weighed against the other factors canvassed by the hearing judge, all of which showed that a retroactive award would be appropriate.
Finally, Mr. Graydon contests the effective date of retroactive child support adopted in the hearing judge’s award. The hearing judge awarded retroactive child support dating back to the March 29, 2001 consent order of child support (which he treated as taking effect on April 1, 2001). The hearing judge’s conclusion was based on his finding that the date when Ms. Michel presented a settlement agreement to Mr. Graydon was the date of effective notice given to him. Mr. Graydon argues that merely presenting a draft settlement agreement could not serve as effective notice. His argument on this point is immaterial, however, because the date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness). Again, in light of such conduct, there is no need to protect Mr. Graydon’s interest in the certainty of his obligations beyond the date when circumstances changed materially (D.B.S., at para. 125). Having furnished an inaccurate picture of his income from the start of his child support payments, it does not lie in his mouth to now insist that it was inappropriate for the hearing judge to award support dating back to the March 29, 2001 consent order. Indeed, in the circumstances of this case it was clearly appropriate for the hearing judge to do so."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.