Retroactive child or spousal support orders are tools available to the courts to provide receivers of support with the opportunity to collect payments that for one reason or another were not paid by the person responsible for doing so. A common example in the family law context is that the payor had not been honest about their income. When this is discovered, the parent who received (or should have received) support payments can ask the court to make an order requiring the payor to make up the difference between what was paid and what should have been paid. But child support is often only required when the child or children are minors, or children of the marriage (such as a young adult who is still dependent on their parents while working on post-secondary education). The Supreme Court of Canada just released a decision clarifying its stance on whether retroactive support can be ordered when a child or children are no longer dependents of the parents.

Underreported income deprives child of full support payments

The parents were in a common-law relationship when they had a child in 1991. They separated in 1994 and the child lived with the mother. The father agreed to pay child support based on his stated income. This agreement was formalized in a consent order. It turned out that the father had been underreporting his income for all but one year from 2001 until the child became an adult and support was no longer needed in 2012.

Upon discovering that the father had not reported all of his income, the mother filed an application to retroactively vary child support for the years where the incorrect income was reported. Her application was made under British Columbia’s Family Law Act.

The outcome of the original hearing saw the mother awarded $23,000 in retroactive child support. However, that decision was reversed at the Supreme Court of British Columbia. The reason British Columbia’s Supreme Court reversed the original decision was that in 2006 the Supreme Court of Canada ruled that an application for a child under the federal Divorce Act had to be made while the child was still considered a “child of the marriage.”

It comes down to the language used

The Supreme Court of Canada’s 2020 decision stated that the federal government as well as those of Canada’s provinces often write laws with different nuances in language. The courts must therefore analyze the case before it with those policy decisions in mind.

The Supreme Court of Canada’s 2006 decision hinged on the language of the Divorce Act, which states that a retroactive variance of support can only be made while the beneficiary is a “child of the marriage.” However, British Columbia’s Family Law Act explicitly states that courts can change, suspend or terminate an order respecting child support, including doing so retroactively. It does not limit the ability to do so by the age or dependence of the child or children involved.

How does this decision impact the law in Alberta?

It remains to be seen how Alberta courts will interpret this decision, but we will be paying close attention and will be sure to update our readers when the opportunity arises.

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