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Retroactive Child Support In Alberta

In Canada, the law sometimes permits the right of someone to go back in time to secure something owed to them. In other situations, no such right exists. With child support, going back in time to secure funds that a parent owes is known as retroactive child support. The laws surrounding retroactive child support evolved over time, however, even with that evolution, many people misunderstand the law. This includes both payors and payees. The family law lawyers and child support lawyers at Kahane Law Office help with all support related issues. With both a Calgary office and an Edmonton office, we help people from throughout Alberta.

What Is Retroactive Child Support?

As above, retroactive child support involves situations where a parent or a child asks the court to go back in time to look at support payments. The court, in appropriate circumstances has the right to order that a parent needs to make payments for child support going back for a specified number of years. Keep reading for information about the rules the court follows and the circumstances that allow for these payments. While technically not truly retroactive, we use that term since it refers to orders that go back in time.

The Fundamental Principles Of Canadian Child Support Law

Over the years, the law developed fundamental principals when it comes to child support. These fundamental principles of Child Support exist at the federal level. This means that they apply throughout Canada. For example, the courts follow the following principals:

  • Child support is the right of the child. A parents lacks the ability to bargain away these payments, and survives the breakdown of the relationship of the child’s parents;
  • Support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together;
  • The child support owed varies based upon the income of the payor parent. It includes more than furnishing the “necessities of life;”
  • Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income;
  • These retroactive awards involve more than “exceptional circumstances” or “rare cases;” and lastly
  • In determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations is balanced with the need for “fairness and . . . flexibility”. A court considers whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.

Child Support Obligations After A Child Is Over 18 (19 in some provinces)

The short answer is yes. These exist in a few ways. Obligations exist for child support payments exist when a child moves on to post secondary education such as university or trade school..

However, in September 2020, the Supreme Court of Canada (“SCC”) released its written decision for the most important Child Support case to come before it in years, Michel v Graydon. In Michel, the SCC found that courts retain jurisdiction over support even after a child has reached the age of majority, has attained financial independence, or a Child Support Order has otherwise expired. Though this may seem alarming for some parents, the SCC decision has confirmed the underlying principles of Child Support and has actually provided some much needed clarity to the long standing question of whether the courts can recalculate Child Support  once a child has reached adulthood (or can no longer be defined as a child otherwise).

The Old Law: A Source Of Current Misunderstanding

Before the Michel decision, the SCC stated the principles of Child Support in its leading decision, D.B.S. v S.R.G. (2006). In D.B.S., the court stated that s. 15.1 of the Divorce Act concerning Child Support, precluded the courts from granting retroactive Child Support if the child was no longer a Child of the Marriage as defined in the Divorce Act. In other words, the SCC decision set a precedent that, at least in some jurisdictions, courts interpreted to mean that the courts lack authority to grant original applications after a child no longer was a child of the marriage. However, uncertainty exists as to whether provincial laws, like Alberta’s Family Law Act, or even other sections of the Divorce Act, could be relied on to bring an application for a retroactive Child Support award after the child ceased to be a Child of the Marriage.

The Current Law

The SCC has now made it clear that even if the child no longer meets the definition as a child, the child retains the right to bring an application for a retroactive Child Support award. The reason is simple: a retroactive child support award fails to impose a new obligation but simply serves to enforce a past unfulfilled obligation. Specifically, child support and that obligation, is the right of the child and always continues to receive protection under Canadian law. Retroactive child support orders hold the payor to their existing, and unfulfilled, legal obligations.

How Michel v Graydon End Up Before The SCC

Ms. Michel and Mr. Graydon were in a common law relationship in British Columbia and had one child in 1991 before separating in 1994. Shortly after their separation, they entered a consent order for Child Support. The Court ordered Child Support based on Mr. Graydon’s then annual income of $39,832. Ms. Michel was on social assistance during the time that Mr. Graydon owed Child Support. Under provincial law, the child support was forfeited and collected by the provincial government authorities.

It was later discovered that Mr. Graydon earned more than the amount he claimed for almost every year up until 2012. At that time the child was 20 years old and the child support order terminated. In 2015, three years after the child support order was terminated, Ms. Michel applied under the provincial Family Law Act for a retroactive variation of child support to reflect Mr. Graydon’s actual income for the period of 2001 to 2012.

The Provincial Court of British Columbia (“BCPC”) ruled that Mr. Graydon had hid his real income, and ordered Mr. Graydon to pay $23,000 in retroactive child support. Mr. Graydon appealed the decision to the British Columbia Supreme Court (“BCSC”), which allowed Mr. Graydon’s appeal and set aside the BCPC order. The British Columbia Court of Appeal then dismissed Ms. Michel’s appeal of the BCSC decision.

Ms Michel eventually took the matter to the Supreme Court of Canada (“SCC”) on appeal. There, the SCC unanimously ordered Mr. Graydon to pay retroactive child support. Further, the order explicitly permitted lower courts to use provincial legislation where available to retroactively change any child support order, irrespective of the beneficiary’s dependent status and irrespective of whether the order has lapsed at the time of the application.

Retroactive Child Support In Alberta

In his reasons for the majority, Justice Russell Brown looked at the B.C. Family Law Act to determine if there was any reason why a recipient parent could not apply for retroactive support. The court’s conclusion was no. No jurisdictional bar exists in the provincial law stopping a recipient parent from asking for retroactive child support even after the child has reached the age of majority or independence. The Court placed strong emphasis on the importance of disincentivizing payor parents from failing to meet their child support obligations.

Alberta’s Family Law Act closely mirrors the language in B.C.’s Family Law Act concerning retroactive support. This means that Alberta courts are now highly likely to reach similar results in similar cases locally.

Recipient Parents And Retroactive Child Support

Most important, if you’re a recipient parent don’t delay!

 If you’re a recipient of Child Support, Michel may provide you with an opportunity to pursue a retroactive variation of Child Support if you’ve come to realize that your ex failed to disclose an increase to their Guideline Income  even if your child(ren) is no longer legally a child.  A consultation with one of our experienced Family Lawyers is the first step for proper past support for your child.

Payor Parent And Retroactive Child Support

If you’re a payor parent, stay up to date!

 Michel v. Graydon serves as a strong warning to payor parents. The warning is to provide frank and full disclosure at all times that child support is payable. In addition, all payors must ensure that their obligations are met at the relevant times.

As a payor parent, heed the Court’s warning. The Court made it amply clear that any act or omission by payor parents to prioritize their interest over that of their child will not be tolerated by the Courts. A consultation with one of our experienced Family Lawyers can help you determine if you’re meeting all your child support obligations. 

How Kahane Law Office Helps With Support Payments

The outcomes of retroactive child support applications are highly dependent on the facts of your case. If you are concerned that child support obligations may not have been met by you or your former spouse, arrange a consultation with one of our experienced family law lawyers for some peace of mind.