In a landmark decision, the Supreme Court of Canada in Michel v. Graydon, 2020 SCC 24, unanimously decided that Mr. Graydon was obligated to pay a lump sum of retroactive child support in the amount of $23,000 for the parties’ child, A.G., despite the fact that A.G. was no longer a “child of the marriage” at the time that Ms. Michel applied for retroactive support in 2015.
Section 2(1) of the Divorce Act defines a “child of the marriage” as a child of two spouses or former spouses who is under the age of majority (19 in British Columbia), or who is otherwise unable to withdraw from their parents’ care due to illness, disability, or for example, because they are pursuing a post-secondary education, full-time. A person who pays child support is obligated to continue to pay child support for as long as the child remains a “child of the marriage”.
Prior to the Michel v. Graydon decision, a court did not have the “jurisdiction” to award retroactive child support when the recipient brings on their application for retroactive support after the child in question ceases to be a “child of the marriage”. This principle was set out in the previous seminal decision of the Supreme Court of Canada on this issue: D.B.S. v. S.R.G., 2006 SCC 37. In D.B.S., Justice Bastarache, for a 4-judge majority, commented that an adult child who is longer dependent on their parents is not the “type of person for whom Parliament envisioned child support being made” (paragraph 89). This rationale was interpreted by future courts (including BC’s Court of Appeal in Dring v. Gheyle, 2018 BCCA 449) as creating a “jurisdictional bar” to a claim for retroactive child support after a child ceases to be a “child of the marriage”.
With the Michel v. Graydon decision, Canada’s highest court has provided a clear answer on this issue: a recipient of child support cannot be barred from seeking retroactive support on the basis that the child in question is over the age of majority and no longer dependent on their parents. The basis for the Court’s decision is contained in the following paragraph written by the Honourable Mr. Justice Brown:
 This Court has been prepared to revisit precedents that are “unsound in principle, that had proven to be unworkable and unnecessarily complex to apply, or that had attracted significant and valid judicial, academic and other criticism” (Vavilov, at para. 20). It has also recognized that precedents may be appropriately revisited when they result in unfairness (see R. v. Henry, 2005 SCC 76,  3 S.C.R. 609, at paras. 45-46; Ontario (Attorney General) v. Fraser, 2011 SCC 20,  2 S.C.R. 3, at para. 135, per Rothstein J.). None of the four appeals heard in D.B.S. were original applications for historical child support. The divided and confused jurisprudence that has followed D.B.S. evinces the unsound bases of the “jurisdictional bar” on original orders for child support, has rendered its application unnecessarily complex and operates to undermine the legislative objectives of clarity, certainty and consistency. The deleterious effects on access to justice and the relationship between child support underpayment and poverty canvassed above reveal the profound unfairness visited upon children and their custodians by this bar. All of these reasons make clear that the question of a “jurisdictional bar” on historical child support sought by original orders under the Divorce Act is ripe for reconsideration. […]
If you receive child support and are wondering if you are being paid the correct amount (if any), or if you pay child support and are concerned that you may not have paid the correct amount, proper legal advice can provide help you determine your next best steps. Contact Henderson Heinrichs LLP to set up your free 30-minute consultation.