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.
Before proceeding, please note:
If you are not a current client of Cheadles LLP, please do not include any information in this email that you or someone else considers to be confidential or secret in nature. Prior to the establishment of a lawyer-client relationship, unsolicited emails from non-clients containing confidential or secret information cannot be protected from disclosure.