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MAINTENANCE AND SUPPORT - Child support - Calculation or attribution of income - Financial disclosure - Retroactive awards

Friday, September 18, 2020 @ 2:26 PM  

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Appeal by the mother from a judgment of the Court of Appeal of British Columbia that confirmed the setting aside of an order that required the father to pay $23,000 in retroactive child support. The parties were in a common law relationship until 1994. A 2001 consent order set the father’s monthly child support obligation for the parties’ then 10-year-old child based on the father’s income, which he had understated. His actual income exceeded his disclosed income from 2001 until his child support obligation was terminated by court order in 2012. The mother had been dependent on income assistance and disability benefits. In 2015, the mother successfully applied to retroactively vary child support to reflect the father’s actual income. The Supreme Court of British Columbia allowed the father’s appeal. The Court of Appeal dismissed the mother’s appeal on the basis the mother’s application was precluded because it was brought after the beneficiary was no longer a “child”.

HELD: Appeal allowed. The text of section 152 of the Family Law Act and the scheme of the Act indicated that the Legislature authorized the court to retroactively vary a child support order, irrespective of whether the beneficiary was a “child” at the time of the application and irrespective of whether the order had expired. D.B.S. v. S.R.G. did not stand for the proposition that courts could retroactively vary child support only while the child beneficiary was a “child of the marriage”. The hearing judge’s conclusions that the child experienced hardship in her childhood as a result of the father’s neglect of his child support obligations and that the father’s failure to disclose his income was blameworthy conduct were amply supported on the record. It was clearly appropriate to vary support retroactive to the 2001 consent order given the father’s inaccurate disclosure from the start of his child support payments. The order of the hearing judge was reinstated. Concurring reasons were provided.

Michel v. Graydon, [2019] S.C.J. No. 102, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., September 18, 2020. Digest No. TLD-September142020011-SCC