Retroactive Child Support & Children Over the Age of Majority

The Door Remains Open: Retroactive Child Support & Children over the age of majority

Prior to this landmark case, courts deemed that they do not have authority to grant individuals retroactive child support because the child does not fall under the definition of “a child of marriage”.  This means that if the child has reached the age of majority (which is 18 years in Ontario) the payor spouse no longer has to pay retroactive child support. Retroactive child support pertains to backdated support a spouse pays to another for their child and/or children. The decision in Michel v Graydon has now completely changed the law.

The Supreme Court Canada decision in the September 2020 case discusses Retroactive Child Support Orders in relation to children over the age of majority. The decision explains that a payor spouse cannot excuse themselves from child support obligations, simply because a child was an adult at the time the support claim began and therefore is no longer eligible for support.

The parties were in a common law relationship where they had one child. Ms. Michel applied for retroactive child support based on the Father’s income. When Ms. Michel applied for the support, their child had reached the age of majority. The lower courts concluded that Mr. Graydon owed Ms. Michel $23,000 in retroactive child support. The appellate courts overturned the amount stating that the child was over the age of majority and therefore no longer a “child of marriage”. This allowed Mr. Graydon justification to not pay the child support that has been accrued retroactively.

The appellate court decision was struck down by the Supreme Court of Canada on the basis that a payor parent should not avoid support obligations merely because their child has reached the age of majority. The Supreme Court of Canada held that Ms. Michel was entitled to retroactive child support. Parents now have legal recourse if they apply for retroactive child support even if their child has reached the age of majority.

Sperm Donor Conceives a Child by Sexual Intercourse


Where the parties have agreed before conception that the woman carrying the child will be the only parent, what are the obligations of a sperm donor by intercourse?  Is such an agreement enforceable? A recent case highlights the new reality of parentage.


The All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 was recently passed by the Ontario Legislature, amending the Children’s Law Reform Act (CLRA), the Succession Law Reform Act, and the Vital Statistics Act. These amendments followed a series of Charter challenges to sections of the CLRA and the Vital Statistics Act. In particular, these acts were found to discriminate against LGBTQ* individuals who wanted to start a family. The amended CLRA expands the definition of “parent” and recognizes parents as equal under Ontario law, regardless of identity or means of conception. For example, couples that enter into surrogacy arrangements with third parties or conceive children through artificial insemination are no longer required to apply to court for a declaration of parentage; they simply register as parents in the mail.

The case of M.R.R. v J.M., 2017 ONSC 2655 provides some insight into the way courts will determine who is a “parent” when pre-conception arrangements are carried out by means of intercourse instead of artificial insemination or surrogacy. This case does not have any implications for the rights and obligations of parents after a child is born; it relates only to arrangements about legal rights and obligations before conception.


M.R.R. is the biological mother of J.R.R. She brought an application for child support against J.M., the biological father of J.R.R. M.R.R. wanted to have a child with the understanding that she would be the sole parent to any child she conceived. After several failed attempts with artificial insemination, M.R.R. accepted J.M.’s offer to donate his sperm through sexual intercourse.

Before they conceived J.R.R, the parties verbally agreed that J.M. would not be the child’s legal parent. They did not have a written agreement. After J.R.R. was born, J.M. referred to the child as “his daughter” and visited the child on occasion. M.R.R. had her lawyer drafted a contract that reflected what she and J.M. agreed to before they conceived the child. Before J.M. signed the contract, M.R.R. informed him that she would be pursuing a claim for child support. J.M signed the contract and asked the court to uphold it or make a declaration to the effect that he is not the legal parent under Section 13 of the CLRA.


J.M. is not a “parent”. The application for a declaration of non-parentage was granted based on the pre-conception intentions of the parties.

Pre-Conception Contracts Should Be Written and Signed Prior to Conception

Under the CLRA, there is a presumption that the person who donated sperm through intercourse is a parent unless they have an agreement with the intended birth parent that states otherwise. The agreement must be:

a) Executed prior to conception and;

b) In writing.


Relying on a general provision when there is no written contract

If there is no written contract executed prior to conception, then the “sperm donor” will have to bring an application for non-parentage under Section 13 of the CLRA. In M.R.R. v J.M., the court gave more weight to the parties’ pre-conception intentions than they did the parties’ actions after the child was born. However, behaviour after conception may be considered in an application for non-parentage. If an individual has displayed a “settled intention” to act as a child’s parent after they are conceived, they may be declared a “parent” pursuant to Section 1 of the Family Law Act. Therefore, it is best to execute a written agreement prior to conception so that every party to the conception understands their rights and obligations in relation to the child. Otherwise, these relationships will be defined by the courts instead of the parties’ themselves.

The Best Interests of the Child When Determining Who is a Parent

Before the CLRA was amended, declarations of non-parentage were granted pursuant to section 97 of the Courts of Justice Act. The judge was required to consider the best interests of the children before granting this declaration. While they are permitted to consider the best interests of the child, judges are no longer required to consider this factor before granting a declaration of parentage or non-parentage under the CLRA.

Financial obligations flow from the declaration of parentage and provide a child with additional financial support. It could be argued that a declaration of parentage is in the best interest of the child. However, the CLRA was amended to provide security for children regardless of the way they were conceived. The CLRA recognizes the pre-conception intention to parent as a basis of parentage in the context of same-sex relationships and assisted reproduction. Protection of pre-conception agreements allows families to define their relationships clearly. This provides certainty which is in the best interest of a child who is conceived by non-traditional means. If a sperm donor and the intended parents cannot rely on a pre-conception agreement, these agreements may not be entered into at all. Providing people with certainty about their parental rights in these circumstances will support the growth of more diverse families in Canada.

If you have questions about how your rights may be affected under the CLRA, the Succession Law Reform Act, or the Vital Statistics Act, we suggest you contact us at