The Supreme Court of Canada has ruled that retroactive support can be in effect after a child has become an adult. The court said that hindering retroactive support is most detrimental to women and limiting support should only happen when the law says so.
The decision here stemmed from a common-law couple in British Couple (Michel v. Graydon) with one child who resided with the mother when the parties’ separated.
While the father (Graydon) did pay support, the support ended when the child became an adult. However, the mother (Michel) discovered that Graydon’s income was higher than he had reported. She then requested retroactive support based on his real income. Of course, he argued the child was too old, an adult, and not only was it too late to make such a request, but the court also did not have the power to order the retroactive payments.
The trial judge ordered Graydon to pay back the $23,000.00 that he owed, stating it was harmful to the child to conceal his real income. However, the court of appeal disagreed and sided with Graydon, saying that it was too late.
In turn the Supreme Court was unanimous deciding that Graydon had to pay what he owed. With no dissent, the judges reasoned that the court could change past support orders under the Family Law Act even though the child was an adult.
In this case, the father could afford to pay. He knew his income was higher. He knew the mother was struggling financially. So ordering him to pay now should not surprise him.
Again, the court reminded us that “child support is a right that belongs to the child. The parents can’t negotiate it away.” A child is entitled to the same standard of living the parents had when they were together.
As always, the court reminded us that judges need to consider the entire situation in deciding whether to order retroactive support. Such issues include why a parent waited to ask for support, behaviour of the payor, the child’s situation, and of course “hardship”.
The hearing was heard in 2019, but the decision was released this month.