Recent cases are stating that a child can sue a parent for retroactive child support after they have graduated from university.
In Michel v. Graydon 2020 SCC 24, the Supreme Court of Canada resolved that retroactive child support owed by a parent or guardian does not go away simply by the passage of time. The court stated at paragraph 41 that “Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation which does not evaporate or fade into history upon a child’s 18th or 19th birthday or their graduation from university.”
With reference to section 152 of the Family Law Act concerning changes to an existing order respecting child support, the court acknowledged that a claim for retroactive support under this part is not influenced by the status of the child at the time the application is made but rather by the circumstances of the child when support was payable. The court went on to say that this “reinforces that child support is the right of the child and the responsibility of the parents, encourages the payment of child support, acknowledges that there are many reasons why a parent may delay making an application, and recognizes how the underpayment of child support leads to hardship and contributes to the feminization of poverty. In short, allowing recipient parents to make claims for historical child support is in the best interests of children and promotes equality and access to justice for all.”
FAQ
1) When is child support payable in British Columbia?
Child support is usually payable until the youngest child of the marriage is 19, unless they are still dependent due to illness or disability, or if the child is enrolled in full-time post secondary education.
2) How is the amount of child support payable determined?
In B.C., child support is primarily determined using the Federal Child Support Guidelines which take into account a number of factors including both spouses’ incomes, the number of children, and age of the children, and parenting time (e.g. who the children primarily reside with).
3) What if my income changes?
It is a legal obligation to disclose a change in income for the purpose of calculating child support. If both spouses are in agreement with an adjustment to child support, they can sign a written agreement to that effect. If they are unable to agree, one parent can apply to the court to change an existing child support order.
Deborah A. Todd
