– By Ira Tee, Associate Lawyer

Applications for retroactive child support under the Divorce Act cannot be granted unless the child beneficiary is a “child of the marriage” as defined in the Divorce Act when the application is made. This was set out in D.B.S. v. S.R.G., 2006 SCC 37 (“D.B.S.”) by the Supreme Court of Canada (the “SCC”).

In Michel v. Graydon, 2020 SCC 24, a mother applied in the Provincial Court to retroactively vary child support that was payable by the father, as he had underreported his income. The question before the court was whether an application for retroactive child support under section 152 of the Family Law Act (the “FLA”) was also limited in time just as it is under the Divorce Act. The parties never married and t the time of the application, the child who was the beneficiary of the child support was no longer a “child” as defined in the FLA.

S. 152 of the FLA states:

152 (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take 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.

In the Provincial Court, the judge granted the mother’s application, holding that the FLA had no restrictions on when a retroactive child support application could be brought. On appeal at the Supreme Court of B.C., allowed the father’s appeal, finding that D.B.S.’s holding that the application must be made while the child remained a “child of the marriage” was equally applicable if support is sought under the FLA. At the Court of Appeal, the court dismissed the mother’s appeal on the basis that the FLA did not authorize a court to retroactively vary child support if the beneficiary is not a “child” at the time of the application.

At the SCC, the court agreed with the Provincial Court judge that s. 152 of the FLA did not restrict the ability of a court to retroactively vary a child support order even when the beneficiary was no longer a “child” at the time of the application, and even when the order was expired.

What Does This Mean for Recipient Parents?

The SCC’s judgment clarifies that a party applying for retroactive child support under the FLA is not barred to do so if the beneficiary is no longer a child. This may result in more applications for retroactive child support in the courts due to the lack of the time limit to apply. However, an award for retroactive child support is still governed by the principles in D.B.S. That is, the court deciding the application must still consider: whether the recipient parent’s delay in seeking variation of child support is reasonable in the circumstances, the payor parent’s conduct, the circumstances of the child, and whether any hardship would be result from a retroactive award. So, while a recipient parent may apply for retroactive child support, an award is not guaranteed.

If you are considering an application for retroactive child support, speak to counsel first to consider your legal position and likelihood of success.