Source: The Saskatchewan Advocate – March 2021
Authors: Carlynn Block & Jason Brunton
In September of 2020, as the summer months came to a close and our children returned to in-class learning, the Supreme Court of Canada quietly published their reasons for judgment in Michel v Graydon, 2020 SCC 24, 2020 CSC 24 [“Michel”]. Fourteen years after the landmark decision of S(DB) v G (SR), 2006 SCC 37,  2 SCR 231 [“DBS”], the SCC circled back to its widely cited principle that applications for child support brought under the Divorce Act must be made while the beneficiary child is still a “child of the marriage” [the “DBS Principle”]. Years of application, analysis, and criticism followed as lower courts began to create exceptions and jurisdiction to award child support for beneficiary children who were no longer “children of the marriage” as an attempt to avoid yet another barrier preventing courts from considering applications for retroactive child support. With the introduction of Michel and consideration of the legislative schemes and intent outlined in British Columbia’s Family Law Act, SBC 2011, c 25 [“BCFLA”], the DBS Principle no longer strips British Columbia’s courts of jurisdiction to consider and grant a recipient parent’s application for retroactive child support brought after the child is no longer eligible. Be weary, however, as the DBS Principle may continue to prevail in Saskatchewan, despite Michel, due to the legislative intent outlined in our Family Maintenance Act, 1997, c F-6.2, SS, 1997 [“FMA”].
M and G were common law spouses and parents to A, born in 1991. M and G separated in 1994. After separation, A primarily resided with M while G agreed to pay child support based upon his stated income. Child support was later formalized in a 2001 consent order. In 2012, G’s child support obligation was terminated by court order as A was no longer a “child of the marriage”. M then learned G had been understating his income between 2001 and 2012, with the exception of 2004.
In 2015, M brought an application under section 152 of the BCFLA to retroactively vary child support for the period between 2001 and 2012 to properly reflect G’s actual income and child support obligation during this time. M’s application was granted and G was ordered to pay $23,000 in retroactive child support [the “2015 Order”]. The Supreme Court of British Columbia allowed G’s appeal, relying on DBS and the DBS Principle. The British Columbia Court of Appeal dismissed M’s appeal.
The SCC held otherwise, allowed M’s appeal, and reinstated the 2015 Order. Gone are the days that a payor parent can shed their child support obligation based merely upon the time that the application is brought in relation to the child’s eligibility status for support. As important, gone are the days that a recipient parent must race a potentially unknown ticking clock to enforce the payor parent’s proper child support obligation for the benefit of the eligible child. This is, however, to be contingent upon provincial legislation.
The majority in Michel revisited DBS and reiterated the following governing principles to consider when faced with an application for child support, whether ongoing or retroactive:
- 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”; and
- 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.
The majority went on to highlight discussion in DBS regarding enforcement of child support obligations pursuant to governing legislative schemes, stating “a court can enforce an unfulfilled child support obligation only where the governing legislation provides a mechanism for enforcement, and only in accordance with that mechanism.” Notably, the majority stated that the DBS Principle does not “… transcend the Divorce Act to embrace all other statutory schemes … irrespective of legislative intent.” Provinces are welcome to adopt a paradigm different than that enshrined in the Divorce Act. Where an application for ongoing or retroactive child support is brought within the provincial regime, such as the BCFLA or our very own FMA, it is the provincial legislation, paradigm, and regime that then governs the ability of the court to grant such support.
While there are, of course, restrictions and guidelines that must be considered when applications for child support are before the Court, the majority went so far as to say that courts should “… not be hasty to recognize judicial impediments that bar applications for retroactive child support.” Constraints must be apparent in the statutory scheme. Considering the BCFLA in this context and considering its provincial regime for retroactive child support applications, the SCC determined that the legislative scheme authorized the court to vary child support orders regardless of whether the child beneficiary remained eligible at the time of the application.
How does our FMA compare?
Saskatchewan’s Family Maintenance Act
It is undisputed that children under the age of 18 years and over the age of 18 years, in certain circumstances, are eligible to receive child support under our FMA. Applications for child support, or variations thereof, can be made pursuant to sections 3, 4, and 10. While, as of the writing of this article, Michel has been cited in only one reported SKQB decision, on an unrelated point, DBS has been cited in over 2,700 cases nationwide and over 180 cases provincially. Or so a quick WestLawNext Canada search tells me. The DBS Principle is well engrained into our legal understanding of applications for child support.
In Millar v Millar, 2007 SKQB 25, 2007 CarswellSask 77 [“Millar”], an application for retroactive child support brought under the Divorce Act was dismissed on the basis of the DBS Principle. The legislative scheme and jurisdiction of the FMA were not mentioned or applied. Shortly thereafter, the SKQB faced a similar issue and compared the legislative definition and criteria provided within the Divorce Act and our FMA with respect to child support eligibility and applications for retroactive child support brought once the beneficiary child is no longer eligible. In Haavisto v Haavisto, 2008 SKQB 446, 2008 CarswellSask 724, after consideration of the DBS Principle, Justice D. E. W. McIntyre stated, “I take the court to have concluded that after a child ceases to be eligible for support, an application cannot be brought to alter the support regime which was in place during the time the child was entitled to support.” McIntyre J. likened the criteria of section 3(7) of the FMA to the definition of a “child of the marriage” in the Divorce Act, finding a sweeping application of the DBS Principle to both the FMA and Divorce Act.
Does Michel changes this? In short, likely not. While the SCC reminds us to look at the unique legislative regime outlined in the FMA, its current legislative intent and regime differs from the BCFLA and, rather, supports successful application of the DBS Principle in Saskatchewan.
Knowing the eligibility requirements, the FMA authorizes two kinds of applications respecting child support. First, sections 3 and 4 authorize applications for an order for child maintenance in accordance with the Federal Child Support Guidelines and provide legislative guidance for such orders. Secondly, section 10(1) authorizes the court to do the following so long as it is satisfied that there has been a material change of circumstances since the initial order was made:
- discharge, vary or suspend any term of the order, prospectively or retroactively;
- relieve the respondent from the payment of all or part of the arrears;
- Order than an irrevocable designation of a beneficiary under a policy of life insurance, pension plan or other benefit plan be revoked; or
- Make any other order pursuant to section 9 that the court considers appropriate in the circumstances.
In Michel, the SCC noted what the relevant section of the BCFLA did not contain, specifically, language or “… reference to the defined term ‘child’ that might serve to qualify the authority of a court to vary child support.” Rather, the relevant section used simple wording and stated that a court could change, suspend, or terminate child support, prospectively or retroactively, upon specified pre-conditions, none of which regarded the eligibility status of the child beneficiary named in the child support order. Likewise, section 10(1) contains simple wording and directs the variation of a previous child support order where the court has been satisfied that there has been a material change of circumstances. There are no limiting factors present surrounding the time that the application is made in relation to the eligibility of the beneficiary child.
The downfall of a successful application of Michel in Saskatchewan, and corresponding downfall of the DBS Principle to follow, hinges on section 12(1) of the FMA. Section 12(1) outlines the Legislature’s intent with respect to an individual’s standing to bring an application under the FMA, stating “Any person may apply for an order on behalf of a child” [emphasis added]. This wording and intent had been removed from the BCFLA when the BCFLA replaced its predecessor. Considering this prior language, the SCC reiterated that “… courts have interpreted this language as conditioning a court’s authority to order child support upon a beneficiary’s dependent status…”. In its current form, it appears the FMA endorses the DBS Principle and restricts the court’s jurisdiction to applications for retroactive child support brought while the beneficiary child is still a child, as defined by the FMA.
Michel did provide us with policy considerations in favour of opening the court’s jurisdiction to applications brought once the child is no longer eligible:
- Prior child support caselaw calls for fair, large, and liberal construction and interpretation of legislation, keeping the best interests of the child at the forefront;
- The purpose and promise of child support is to protect the financial obligation owed to children by their parents. We must encourage the payment of child support and reinforce that child support is the child’s right and parent’s responsibility;
- Underpayment of child support leads to disproportionate hardship for the recipient parent and contributes to the both child poverty and feminization of poverty as women continue to bear the bulk of child care and custody obligations while simultaneously earning less money than men;
- We must look towards enhancing access to justice; and
- There are many reasons as to why a parent may delay bringing an application. A courtroom’s door should not be closed because a certain category of debt is brought forward too late. Unmet child support obligations, whether they have or have not already been juridically recognized, are a valid debt that must be paid. Court should not “create a perverse incentive by granting payor parents immunity after the child ceases to be a child of the marriage.”
Our Legislature should take note of the policy considerations outlined in Michel, as section 12(1) currently stands in the way of a towering number of policy considerations looking to dismantle the DBS Principle.
 Michel, para 10; DBS, para 38.
 Michel, para 10; DBS, paras 38-45.
 Michel, para 10; DBS, para 2.
 Michel, para 10; DBS, para 5.
 Michel, para 10; DBS, para 133.
 Michel, para 11.
 Michel, para 16.
 Michel, para 17.
 FMA, at s 2 “child.”
 FMA, at ss 3(7) and 4.
 Haavisto v Haavisto, 2008 SKQB 446, 2008 CarswellSask, 724 [“Haavisto”]
 Haavisto, para 13.
 FMA, at s 10(1)(a).
 FMA, at s 10(1)(b).
 FMA, at s 10(1)(c).
 FMA, at s 10(1)(d).
 Michel, at para 22.
 FMA, at s 12(a).
 Michel, at para 22.
 Michel, at para 40.
 Michel, at paras 41, 52
 Michel, at paras 41 and 88-104.
 Michel, at paras 41 and 73-82.
 Michel, at paras 80 and 83-87.
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