The topic of retroactive child support and adult children has received much judicial attention over the last year, overturning an approach before the judiciary which at times felt unfair to recipient parents whom had years of retroactive child support that remained unpaid.
A party seeking Child Support may often bring a request for support where the opposing party has either failed to pay support or has historically paid less than what their support obligation should be as per the Child Support Guidelines, based upon their annual income. The concept of seeking retroactive child support payments from a payor that has not paid support over the years, or for shortfalls of payments in the past, is known as “Retroactive” Child Support. One of the major disputed issues that has been litigated in the past whether or not a recipient of child support has a right to seek retroactive support payments for a child that no longer qualifies as a “child” for the purposes of the Child Support Guidelines, or is now an adult. The recent Supreme Court of Canada Case Michel v. Graydon has acted to provide a better answer to this question in in relation to how far back one can seek retroactive support payments by a non-paying support payor, and whether a parent or child can seek retroactive child support when they no longer qualify as an adult.
Michel v. Graydon
To first understand the impact of Michel v. Graydon a clear understanding of exactly what the definition of a child is under the law. Under the Family Law Act a child is a person under the age of 18 who has not withdrawn from parental control or a person over the age of 18 attending a full time education program who has not withdrawn from parental control. What Michel v. Graydon clarified is that a party can seek retroactive child support for a child even after the child is deemed to be an adult and no longer meets the definition of a “child” under the Family Law Act. In this Case, an order was originally made for the father to pay support for the child to the mother, which ended after the child turned 18. After the child became an adult, it was revealed to the mother that the father’s income had been far higher than what he had previously indicated, and that he had been knowingly earning a higher income while paying support for the child at a reduced amount.
The mother in response sought an order for retroactive support for the child for previous years, based on the father’s real income at the time. While the Court of Appeal ruled that it was too late for the father to pay back the child support shortfall of past years as the child was now an adult, the Supreme Court of Canada ruled differently, and all of the judges agreed that the father had to pay the shortfall in support. The Supreme Court ruled that under the Family Law Act the courts could change past child support orders, and that the courts had the authority to do this even when a child is now considered an adult. In this ruling the courts cited the need for evaluating the entire situation when determining retroactive support, to take an expansive approach to the support payor’s blameworthy behaviour, and the major factors in the decision were the father knowing his income was higher and misleading the mother, the father’s awareness of both the poor financial circumstances of the mother and child, and the fact that the father did nothing to assist the family given their poor circumstances and his greater income.
Our law firm is working with both existing and potential new clients to ensure that parents are able to obtain support for their children, on both an ongoing and retroactive basis in accordance with the law. Our firm is here to assist you in regards to all of your needs, and can assist you in any negotiations you may need to resolve within your custody, child support and family law disputes. Please call one of our Child Custody Lawyers in Toronto for a consultation related to your matters.
Written by Adam Jaffer, Associate Lawyer at Separy Law P.C
