Retroactive Child Support - An Overview of Mitchel v. Graydon
When a couple separates, they continue to bear responsibility for supporting any children they have had in common. This applies to married couples as well as couples in common-law relationships. Child support in Alberta is calculated based on a percentage of a payor parent’s income, and is owed monthly until the child in question reaches the age of majority (18 years old).
There are many nuances to the way child support amounts are calculated, taking into consideration where the child is living (whether with one parent or alternating between both), as well as differences between the parents’ incomes. If you would like to discuss the particulars of your specific circumstances, or address any questions related to family law, contact our Edmonton child support lawyers today.
Retroactive Child Support
The purpose of child support is to provide the child within a divorce or separation the same standards of living as they had while their parents were together. Child support is the right of the child, and is to be maintained in the child’s best interests.
In an ideal situation, the parent who owes child support will be honest about their finances, and pay their owed amount reliably on time. However, this is unfortunately not always the case. Sometimes individuals lie about how much money they have, and courts must enforce an imputation of income in order to retrieve appropriate child support payments.
Applications for child support may be made retroactively - even after the child has reached the age of majority. This helps to prevent incentives for payor parents to delay paying child support in the hopes that they might become immune to their debts once the child turns eighteen. It should be noted that a retroactive award of child support is not really “retroactive,” but rather an enforcement of payments the payor should have made in the first place.
Case Example: Mitchel v. Graydon
A 2020 case in British Columbia illustrates an example of court-ordered retroactive child support. In Mitchel v. Graydon, the parents were in a common law relationship and had a child together. Following their separation, the father - Graydon - understated the total amount of his income over the course of several years, thus paying less than what he should have owed.
Approximately a decade after the separation, the mother - Mitchel - applied to retroactively vary the child support Graydon owed, to reflect his real income. The hearing judge ordered Graydon to pay $23,000.
Graydon appealed this order on the grounds that their child was now an adult, and no longer a “child of the marriage” - thus the application had come “too late.” However, having considered the case, the court dismissed his appeal.
The Timing of Child Support Applications
The obligation to pay child support begins upon the separation of the parents, and does not disappear the moment the child reaches the age of majority. This is why, in the case of Mitchel v. Graydon, the court ruled in accordance with the Family Law Act: the payor father owed a debt as long as his child “qualified as a beneficiary at the time the support was due, irrespective of their status at the moment of the application.”
A court will typically consider why the recipient parent delayed seeking retroactive child support, and whether that delay was reasonable under the circumstances. They may also assess the circumstances of the payor parent, including their honesty regarding finances, and the hardships they might face in paying this retroactive award. Crucially, the court should also consider the hardships the child has faced because of neglected child support payments. In Mitchel v. Graydon, it is noted that the child was unable to pursue her choice of post-secondary education as a result of financial hardship.
Contact Our Edmonton Child Support Lawyers Today for a Consultation
Questions of child support can be challenging to navigate, especially when time has passed and communication lines between the former spouses are fraught. At Verhaeghe Law, our child support lawyers would be happy to speak with you about what’s possible in your unique case. Contact us today to schedule a consultation.
** Please note that this article is intended as a general overview on the subject of retroactive child support, and does not constitute legal advice. For legal advice, please consult with a lawyer.