Can I get child support arrears when my child is over 19? Yes you can!
By Marcus Sixta, BC and Alberta Family Lawyer, Mediator and Collaborative Lawyer
Sometimes child support is either not paid or underpaid and as a result arrears are owing that can be claimed in court or enforced by Maintenance Enforcement. However, getting arrears after a child is an adult used to be an impossible task. This is because various courts across Canada had decided that child support arrears could not be claimed if a child was over the age of majority, which can be 18 or 19 depending on the province.
However, the very recent decision out of the Supreme Court of Canada, Michel v. Graydon, 2020 SCC 24, makes it very clear that a retroactive child support order can be made even if children are over the age of majority.
In Michel v. Graydon, the mother and father were in a common-law relationship. After they separated they entered into a consent order. The father had understated his income and paid less child support than what he should have. The mother sought child support arrears after the children were over the age of majority going back 10 years. A provincial court judge ordered him to pay $23,000 in child support arrears. The father appealed and this was overturned because the appeal court found that a child support application can only be made while a child is still a “child of the marriage”, in other words not an adult.
The Supreme Court of Canada disagreed and found that it can retroactively change child support order “irrespective of whether the beneficiary is a child at the time of the application”. The court stated:
[17] Moreover, courts should not be hasty to recognize jurisdictional impediments that bar applications for retroactive child support. This is because jurisdictional constraints are “inimical to the principles and policy objectives articulated in [D.B.S.]” (Brear, at para. 60), and may be imposed only where the legislature has clearly intended that they be imposed. Such constraints must therefore be apparent in the statutory scheme, bearing in mind that preventing courts from even considering an award for retroactive child support would prevent enforcement of an unfulfilled legal obligation even in the most appropriate of circumstances. As Sharpe J.A. explained in Colucci:
I can see no reason why the court should be deprived of jurisdiction to consider the request of a recipient parent who struggled to support the children and to shift part of that burden to the payor parent if there was a change in circumstance that would have justified a variation while the children were still children of the marriage . . . . [A] regime that gave payor parents immunity after the children ceased to be children of the marriage would create a perverse incentive. If the payor parent is to be absolved from responsibility once the children cease to be “children of the marriage”, the payor whose income increases might be encouraged not to respond to his or her increased obligations in the hope that the reciprocal spouse will delay making an application for a variation increasing support until the children lose their status to avoid opening the door to an increased obligation . . . . [para. 26]
In other words, child support is important and courts hearing family law cases should be very cautious about limiting a child support claim based on a technicality. The Supreme Court of Canada also reiterated some principles on child support which are important to remember whenever child support issues are in dispute in a family law case:
- Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child’s parents.
- Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together.
- The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life”.
- Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income.
- Retroactive awards are not confined to “exceptional circumstances” or “rare cases”.
- In determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations must be balanced with the need for “fairness and . . . flexibility”. A court should consider whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.
As a result, child support arrears can now be claimed even when children are adults. Therefore, if you are underpaying child support, the claim against you does not disappear after the children reach a certain age. That is why it is very important to stay on top of your child support obligations and change the amount when your income increases or decreases.
If you are wondering if your child support meets the guidelines, check out our free child support Calculator or contact one of our top rated BC or Alberta Family lawyers for a free consultation now.
