May 19, 2022

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Father still on the hook for unpaid support, even though child now an adult, top court rules

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The father successfully appealed from the trial judge’s decision. Thereafter, the mother unsuccessfully appealed to the Court of Appeal for British Columbia followed by her successful appeal to the Supreme Court, which resulted in Judge Smith’s decision being restored.

The Supreme Court noted that the fact the child was no longer a “child” under the applicable B.C. legislation at the time the mother commenced court proceedings was not a bar to her claim for retroactive child support.

Writing for the majority of the Court, Justice Russell Brown was critical of the father’s conduct, noting that “failure to disclose material changes in income undermines the child-support regime imposed by the  (Child Support) Guidelines. The record here also indicates that (the father) knew about his daughter’s financial circumstances and made disparaging remarks about her standard of living instead of modifying his child-support payments to assist her.”

In her concurring reasons, Justice Sheilah L. Martin noted 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.”

Justice Martin continued by underscoring the purpose and importance of permitting retroactive child support, noting that such an order “enhances access to justice, 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.”

In what will likely become a compass for future claims for retroactive child support, Justice Martin noted that the “courtroom doors should not be closed because certain categories of debts owed to children are classified as coming too late.”

The message from the Supreme Court is loud and clear: proper child support, which is the right of a child, must be paid. Failure to do so will not be condoned by the court and will likely be corrected by a retroactive award for support.

Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto.
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