Michel v Graydon: SCC Clarifies Law on Retroactive Child Support Orders from a Feminization of Poverty Lens
Should children’s rights to child support be protected by the courts even after the child has reached the age of majority? Should the payor parent be held liable for dishonest financial disclosure during child support proceedings after the child support order has already expired?
In Michel v Graydon, 2020 SCC 24 [Michel], the SCC clarifies these issues concerning retroactive child support—financial entitlements due to a child by a parent after the child support order has been terminated. The SCC unanimously determined that pursuant to a broad interpretation of section 152 of British Columbia’s Family Law Act, SBC 2011, c 25 [FLA], courts may order retroactive child support “irrespective of whether the beneficiary is a ‘child’ at the time of the application” and “irrespective of whether the order has expired” (Michel, para 9).
Danelle Michel, the appellant, and Sean Graydon, the respondent, were in a common-law relationship that ended in 1994 (Michel, para 3). Both of the parties are parents to AG, the child, who was born in December 1991 (Michel, para 3). Upon separation, AG resided with Ms. Michel while Mr. Graydon agreed to pay child support pursuant to a child support order finalized on March 29, 2001 (Michel, para 4). Mr. Graydon disclosed his annual income at the time of being $39,832, with the court ordering him to pay $341 per month (Michel, para 4).
The child support order was terminated effective April 30, 2012 (Michel, para 4). It was later revealed that Mr. Graydon understated his annual income from 2001-2012, prompting Ms. Michel to apply to British Columbia’s Provincial Court for retroactive child support in January 2015 (Michel, para 6).
The trial judge held that Ms. Michel’s application “warranted granting an award for retroactive child support” pursuant to section 152 of the FLA and ordered Mr. Graydon to pay $23 000—half to be given to Ms. Michel and a half to be given to AG (Michel, para 6). In rendering this decision, the trial judge considered: 1) the delay in bringing the application being reasonable, 2) Mr. Graydon’s conduct in failing to truthfully disclose his income, 3) AG suffering through poverty during the years she was receiving child support, and 4) Mr. Graydon not experiencing hardship by providing this award (Michel, para 6). These considerations are based on the four factors outlined in DBS v SRG, 2006 SCC 37 [DBS].
Mr. Graydon successfully appealed this decision. While section 152 of the FLA allows courts to make retroactive child support orders, the British Columbia Supreme Court determined that the beneficiary must still be a “child” in order to have standing (Graydon v. Michel, 2017 BCSC 887, para 61) [“BC Supreme Court”]. Ms. Michel appealed this decision to the British Columbia Court of Appeal, however, the appeal was dismissed on the basis that the trial judge did not have the jurisdiction to order a retroactive variation of child support, as AG “no longer met the definition of “child” pursuant to the FLA (Graydon v Michel, 2018 BCCA 449, para 27) [“Court of Appeal”].
AG was 24 years of age when Ms. Michel’s application for retroactive child support payments was initially heard by the trial judge (Court of Appeal, para 15). Both the BC Supreme Court and Court of Appeal relied on the SCC’s decision in DBS, whereby the SCC stated that an adult “who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made” (DBS, para 89).
The SCC granted Ms. Michel’s appeal, affirming the trial judge’s application of the four DBS factors. The SCC unanimously broadened the legislative interpretation of section 152 the FLA, determining that a court may order retroactive child support “irrespective of whether the beneficiary is a “child” at the time of the application” and “irrespective of whether the order has expired” (Michel, para 9).
Section 152 of the FLA provides:
Changing, suspending or terminating orders respecting child support
(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.
(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:
(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;
(b) evidence of a substantial nature that was not available during the previous hearing has become available;
(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.
The SCC clarified that the courts need to take a purposive and contextual approach in family law issues, which includes a “fair, large and liberal” interpretation of section 152 of the FLA in assessing retroactive child support (Michel, para 72). This is to ensure that the best interest of the child is at the forefront of the court’s statutory interpretation, aligning with the “policies and values of contemporary Canadian society” (Michel, paras 71-72). The SCC stated that failure to utilize a “fair, large and liberal” interpretation of section 152 of the FLA will “reinforce patterns of socio-economic inequality” and obstruct access to justice (Michel, para 72).
Child Support and the Feminization of Poverty
The SCC demonstrated the interconnections between child support and the feminization of poverty in Michel, recognizing the “gender dynamics in child support law” and the need to acknowledge the reality of women disproportionately experiencing intimate partner violence, unpaid domestic work coupled with lower wages due to a lack of pay equity, as well as the burden of childcare responsibilities (Michel, para 100). The SCC also took into consideration the marginalization of women, compounded by the intersections of “race, disability, religion, gender modality, sexual orientation, and socio-economic class”—facets that the judiciary must factor into the assessment of legal tests in matters of child support (Michel, para 101).
The gendered nature of child support disputes requires a legal response that takes into account the structural gender inequality that is often rooted in these disputes. A broad interpretation of section 152 of the FLA will allow for children and their primary caregivers, who are predominantly women, systemic relief from the financial burdens that may incur when a payor parent fails to fulfil their child support obligations. Simultaneously, the SCC’s decision in Michel may incentivize truthful financial disclosure of the payor parent at the onset of child support proceedings, while providing a means for legal recourse for children and primary caregivers who have been adversely affected by deceitful disclosure practises—a step towards eradicating the feminization of poverty.
While Michel offers clarity on the court’s approach to retroactive child support in accordance to the FLA while taking into consideration the feminization of poverty, the SCC will have an opportunity this year to provide further clarification on broader jurisdiction when it hears Colucci v Colucci, 2019 ONCA 561—a case regarding a delinquent payor parent who was granted a retroactive reduction of child support under the Divorce Act, RSC 1985, c3 (2nd Supp).