MICHEL v. GRAYDON, 2020 SCC 24

Principles of fairness and flexibility, balanced with consistency and efficiency, all in the child’s best interests should remain foremost consideration in child support matters.

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 in 2012. In January 2015, M applied under Section 152 of British Columbia’s Family Law Act 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 and British Columbia Court of Appeal both, allowed G’s appeal and set aside the hearing judge’s order.

The Supreme Court of Canada in the appeal considers the two major issues, that is, whether the court has jurisdiction to vary child support orders after the order has expired and after the child support beneficiary has ceased to be a child. The SCC relied on the principles laid down in D.B.S. v. S.R.G., 2006 SCC 37, that sometimes parents delay their application for child support to protect their children from harm or because making an application is impracticable or inaccessible in their circumstances. The Court in this case had observed that the fundamental principles under the Family Relations Act that Child Support is the right of a child which shall be provided equally as if both the parents are together, the same standard should be maintained. The bench also took note of the findings in this precedent that the specific amounts of child support owed will vary based upon the income of the payer parent.

In the present case, the appropriate amount of support should have been rendered by the payer parent rather than an amount decided by the agreement. However, failure of the party to disclose material changes in income undermines the child support regime imposed by the Guidelines. The Court thus ruled that since lack of financial disclosure by a party was discovered, the court may award retroactive support to close the gap.

The next issue decided by the Court was of jurisdiction in the light of Section 15.1 of the Divorce Act, where the court interpreted that ‘the court could not award child support unless the child is a “child of the marriage” when the application is made’. Understanding that the legal issue in present case is with respect to Section 152 of the Family Act and Section 17 of the Divorce Act, the court ruled out that there is no jurisdictional bar for the application under such provisions. The Court observed that the argument of jurisdictional bar preventing these cases from being heard not only rests on unsound legal foundations but it is also inconsistent with the bedrock principles underlying modern child support and contributes to systemic inequalities. Thus, the Supreme Court of Canada unanimously overruled the BCSC and BCCA decisions and reinstated the order of the provincial court judge, for the payment of retroactive child support.