VANCOUVER — The Supreme Court of Canada has ruled that retroactive support can be in effect after a child is grown.
Judges said that hindering any retroactive child support harms women most — and that support should be limited only when the law clearly says so.
The case came about from a common-law B.C. couple, Ms. Michel and Mr. Graydon, who had a child, AG, and then separated. At the time, the child went to live with the mother.
Graydon, who stated he earned $40,000 a year, agreed to pay child support of $340 a month. The money was signed over to the government because Michel was on social assistance. The government collected the support payments, then paid her social assistance.
When the child became an adult, the support payments ended. But Michel discovered that Graydon’s income was higher than he had admitted. Michel requested retroactive child support based on Graydon’s real income.
Graydon said it was too late to request retroactive payments because the court didn’t have the power to order this and the child was now an adult.
At trial, the judge stated that Graydon concealed his true income, which was detrimental to the child at the time, and ordered Graydon to pay $23,000 in back child support to be split between Michel and AG. On appeal, judges agreed with Graydon, saying it was too late to order back child support.
But the Supreme Court judges all agreed that Graydon had to pay, reasoning that the court could change past child support orders under the Family Law Act — even if the child was now grown.
In the ruling, the judges stated: “Mr. Graydon knew his income was higher than he was saying, so it wouldn’t have been a surprise to him that he had to pay more. He also knew how bad AG’s living situation was because of lack of money, and instead of helping her, made hurtful comments about it. He could afford to pay it now. All of this meant that he had to pay.”
The ruling went on to say: “Child support is a right that belongs to the child. The parents can’t negotiate it away. It should give the child the same standard of living they had when their parents were together
All the judges said courts need to consider the entire situation in deciding whether to make a parent pay retroactive child support. This includes why a parent waited to ask for the support, the behaviour of the parent who was supposed to pay, the child’s situation, and whether it would cause hardship.
“It would be wrong to encourage people to avoid paying in case the other parent might wait too long to ask for it. People shouldn’t be able to profit from acting badly.”
The hearing ended Nov. 14, 2019, and written reasons were released by the court on Friday.