This is a family law case concerning the ability of courts to retroactively change a child support order after a child has reached adulthood.
The parties resided together as common law spouses for four years, during which time they had a child together. After the end of the relationship, their daughter lived with Ms Michel. Child support had originally been set by an order of the provincial court, and this order was varied in 2001 on consent. The amount of child support to be paid by Mr. Graydon was agreed to on the basis of his income at that time. Mr. Graydon refused Ms. Michel’s request that there be an annual review of the child support amount. No review of the amount of child support owing by Mr. Graydon was conducted for the period of time that their daughter was a child. In 2012, Mr. Graydon was granted an order canceling the child support on the ground that their daughter had reached the age of majority, had completed schooling and was working. Ms. Michel applied for a retroactive increase of child support back to 2001 relying on section 152 of BC’s Family Law Act.
Section 152 allows a court to change, suspend or terminate an order respecting child support where the court is satisfied that at least one of the following has occurred:
(a) a change in circumstances as provided for in the child support guidelines;
(b) substantial evidence that was not previously available during the previous hearing has become available; or
(c) evidence of a lack of financial disclosure by a party was discovered after the last child support order was made.
Mr. Graydon challenged the jurisdiction of the court to make a retroactive order on the basis that their daughter was no longer a “child of the marriage” because of her age and independence. The trial judge granted Ms. Michel’s $23,000 in retroactive child support. The BC Court of Appeal overturned that ruling, and Ms. Michel appealed to the Supreme Court of Canada.
This appeal was heard by the Supreme Court of Canada on November 14, 2019. The court returned a rare immediate decision from the bench in favor of Ms. Michel, affirming that judges are able to make a change to a child support order that is retroactive in effect.
The Court released its written judgment on September 18, 2020. In three separate opinions, all agreeing in the result, the Court unanimously stressed the importance of an approach to child support that does not perversely reward payor parents who seek to avoid or are indifferent about paying the child support they owe. The Court very clearly recognized in all three opinions that the burden of unpaid child support falls disproportionately on women and children.
West Coast LEAF’s Involvement
West Coast LEAF was granted leave to intervene in this case to make arguments concerning the gendered nature of child support disputes, as women are disproportionately represented among parents to whom child support payments are owed. West Coast LEAF argued that child support obligations and the Family Law Act itself must be interpreted in a generous and remedial manner so as to promote substantive equality. The vast majority of cases involve male payers paying child support to female recipients; unpaid child support contributes to the feminization of poverty.