Intentionally Misstating Income Warrants Retroactive Child Support by Cristen Gleeson and Raj Nagra

In the recent decision of Michel v. Graydon, 2020 SCC 24, the Supreme Court of Canada (“SCC”) explicitly allows for retroactive child support in cases where a child has already reached the age of majority. The unanimous court concluded that although the previous interpretation of the Family Law Act did not allow retroactive child support where children were now adults, the current interpretation does.

In Michel v. Graydon, Ms. Michel and Mr. Graydon were “common-law” spouses. Ms. Michel and Mr. Graydon had a child together, A.G., and a few years later, their relationship ended. A.G. lived with Ms. Michel, and Mr. Graydon paid $340/month in child support to Ms. Michel based on his self-reported income of $40,000 per year. The Court found that Mr. Graydon understated his income until his child support obligation was terminated by a court order in 2012. During the interim, Ms. Michel lived on social assistance and subsequently, forfeited her rights to child support to the government.

When A.G. became an adult, Mr. Graydon’s child support obligations ceased and Ms. Michel eventually discovered that Mr. Graydon’s income had been higher than he represented. In January 2015, Ms. Michel applied under s. 152 of the Family Law Act to retroactively vary child support for the period between April 2001 and April 2012, to reflect Mr. Graydon’s actual income during that timeframe. Mr. Graydon opposed the application and took the position that because A.G. was no longer a child, the court had no jurisdiction to order payment.

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

At the Supreme Court of Canada (“SCC”), the unanimous court ordered Mr. Graydon to pay retroactive child support, and explicitly permitted lower courts to use s. 152 to retroactively change any child support order, irrespective of the beneficiary’s dependent status and irrespective of whether the order is extant at the time of the application. The SCC stated that the child support is a right that belongs to the child, and that the child should have the same standard of living they had when their parents were together. In essence, the SCC decided, on a public policy basis, to prevent wrongdoers from profiting from their actions.

In making a discretionary child support award and making a parent pay retroactively, consideration must be given to the circumstances of each case. In particular, attention will be drawn to why a parent waited to ask for support, the blameworthy conduct of the payor, any hardship imposed on the child, and whether it would cause hardship to the payor.

In the case at bar, the SCC determined Ms. Michel was unaware of Mr. Graydon’s actual income until after his child support obligations ended and that she and the child suffered undue hardship.

Furthermore, the SCC found that Mr. Graydon deliberately understated his income, was aware of the child’s turbulent living situation due to financial constraints, and was indifferent towards the child. The SCC also confirmed the BCPC finding that Mr. Graydon would not experience hardship from a retroactive award. Therefore, the SCC upheld the BCPC award of $23,000 in retroactive child support ordered against Mr. Graydon.

Michel v. Graydon was heard at the Supreme Court of Canada level on November 14, 2019, and written decisions were delivered on September 18, 2020.