Retroactive Child Support Is the Right Of the Child
In September 2020, the Supreme Court of Canada ruled that retroactive child support may be payable even if at the time the party makes the claim for support the child has reached the age of majority and is an adult.
What is Retroactive Child Support and Why Does it Matter?
Retroactive child support refers to monies owed by a party on a retroactive basis. This could be because they were not paying any support following separation or they were not paying the correct amount of child support pursuant to the Federal Child Support Guidelines. Typically, it is determined that retroactive child support claims can go back three years. However, this is a grey area and open to interpretation of the Courts as child support is the right of the child and there are many factors that contribute to the amount and duration of child support payable. For example, if one party misrepresents their income or causes the other parent to feel threatened by any means if they pursue child support claims, the court may order retroactive child support further back than three years – even if the child is an adult at the time the claim is being made.
Michel v Graydon: Determining Factors in the Supreme Court Ruling on Retroactive Child Support
The parties in this case lived in a common law relationship for 4 years and had a son during their partnership. Upon the breakdown of their relationship, they executed a Separation Agreement which laid out the terms of child support. The child lived with the mother and as such, the father was paying child support on a monthly basis as per the terms of the Agreement. However, in the Agreement, the father’s income was not accurate and was much less than his true income. As years passed, his income became even greater, resulting in a large discrepancy in his child support payments and guideline income. The mother received financial assistance from the government and as a result the child support was assigned to the Minister under the Employment Assistance Act who never applied to review the terms of the child support payable.
The Outcome of Improper Disclosure and Blameworthy Conduct
In 2015, the mother made an application to address the issue of child support not being paid in accordance with the father’s initially inaccurate and since increased income. At the time she made this application, the child was considered an adult and initially, her claim to vary support was rejected by the courts on this basis. After multiple court hearings and appeals, this matter was heard by the Supreme Court of Canada who ordered retroactive child support to be paid in the amount of $23,000. The premise of the court ordering the retroactive child support was that the father engaged in blameworthy conduct by failing to accurately disclose his income when he signed the Separation Agreement.
If you have questions about ongoing or retroactive child support our Calgary based mediators are here to help. Connect with us today and we can ensure you know your legal rights and obligations when determining retroactive child support.