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The rights of the child and child support get a boost in family law

New Divorce Act, provincial legislation and SCC decision have all bolstered children’s interests

The rights of the child and child support get a boost in family law
Jacqueline Boucher practises family law in St. John, N.B. and Peter Mennie practises is Vancouver.

The rights of the child, including to child support, are coming to the fore in the amended federal Divorce Act, as well as in a recent Supreme Court of Canada decision.

The overhauled Divorce Act is the most significant piece of legislation affecting children’s interests and child support, although provincial legislative proposals, along with a Supreme Court decision on retroactive child support, have likewise highlighted the best interests of the child.

Michel v. Graydon

In September’s unanimous decision in Michel v. Graydon, the Supreme Court found that courts retain jurisdiction over support even after a child support order has expired and the beneficiary is an adult and independent. In this case, the father owed retroactive child support after years of failing to disclose his full income.

The ruling of the high court meant that the father had to pay $23,000 in retroactive child support, half to his daughter, now in her mid-twenties, and half to his daughter’s mother.

The “decision really clarified this point of law that stemmed from an older decision of the Supreme Court,” says Jacqueline Boucher, a family lawyer and partner in Cox & Palmer LLP in St. John, N.B.

The high court’s 2006 decision in D.B.S. v. S.R.G., in which it was asked to interpret s. 15.1 of the Divorce Act concerning child support, found that it precluded a court from granting an order for retroactive support if the child was over the age of majority when the recipient parent made the application for increased child support.

The decision in Michel v. Graydon confirmed that it was possible to grant such an order and “clearly shuts down” the ability of payor parents to avoid child support obligations, she says.

The majority decision in the case, written by Justice Russell Brown, “sticks to a classic statutory interpretation” of s. 152 of British Columbia’s Family Law Act and looks at indications of the legislature’s intents, finding “indications they did want retroactive child support being paid regardless of when the application was made if there was an order in place,” says Peter Mennie, an associate at Virgin Hickman LLP in Vancouver, who represented the successful appellant in the case.

Justice Martin casts a wider net in her reasons, addressing the feminization of poverty and jurisprudence from the Supreme Court of Canada about the rights of the child and Canada’s obligations under international treaties.

“She would reopen D.B.S. and would allow originating applications,” says Mennie, “regardless of when they're brought on the basis that this is a key social issue and children must be presumed to be protected under legislative intent.”

The decision is “really solid” for children and for single-mother families, says Boucher. “We know that single-parent households, the majority of them are run by women.”

Michel v. Graydon concerned varying a support order that was already in place. The Supreme Court’s decision left for another day the question of changing an historical child support amount when there was no such order in place, Mennie adds.

“[T]he question of a ‘jurisdictional bar’ on historical child support sought by original orders under the Divorce Act  is ripe for reconsideration,” Justice Sheilah Martin wrote in concurring reasons. “However, given that reconsidering this issue is unnecessary to resolve this appeal, I leave its determination to a more appropriate case.”

This will likely be the next legal question in the area of child support, says Mennie, to be brought forward in another case to another appellate court.

“If it's an original order brought when the child is independent, do the courts have jurisdiction? That's an open question, I think.”

Divorce Act

Amendments to the Divorce Act were meant to come into effect on July 1, but they were delayed until March 1 owing to the extraordinary circumstances of the COVID-19 pandemic. They will mark the first overhaul to the act since 1985 and give special attention to the best interests of the child.

The Department of Justice defines its legislative objectives for the act as including:

  • Promoting the best interests of the child
  • Changing parenting terminology to replace emotionally charged language such as “custody” and “access” with “parenting orders” and concepts of “parenting time” and “decision-making responsibility”
  • Creating a new framework for changes of residence and relocation
  • Addressing family violence

 “As a practitioner, it's positive to see that family violence is included in there, because we've never comfortably been able to address how [family violence affects] kids,” says Boucher, adding that family violence “is very expansively defined.” This includes physical and emotional, coercive and controlling behaviour, financial abuse, psychological abuse and harming family pets.

Currently in Saskatchewan, it is difficult for a parent to relocate from one area to another, even if they have primary residence of the children, says Couture.

“But the Divorce Act has aligned a process wherein parents are able to make a move with the children,” he says. “They have to provide certain notice, and if the other parent doesn't respond or doesn't contest it within the notice period, then they're able to move by default.”

As well, in considering children’s best interests, to date, “our courts in Saskatchewan will not consider what a child's wishes are until they're at least 12 or 13 years old,” he says. However, the amended Divorce Act makes a child’s wishes a specific factor that is supposed to be considered. “Age is now a factor going to weight of how [the court considers] the child's wishes, rather than saying that they won't even consider them until 12.”

B.C.’s Family Law Act uses the term “guardianship” over “custody” and, in most cases, both parents will share guardianship, says Mennie.

“Broadly speaking, most people will welcome these changes,” he says. “Anything to make the process a little less adversarial will help the courts and probably children as well.”

Provincial legislation

Amendments introduced to Saskatchewan’s Family Maintenance Act late last year and now in effect throughout the province, says Couture, have created a recalculation service in agreement with the federal government. This will allow the province’s Maintenance Enforcement Office to collect financial information, including banking information, aimed at better enforcement of child support payments.

“The Divorce Act has authorized provincial governments to do that,” he says, “and it allows for, effectively, a separate office that works with Maintenance Enforcement to recalculate the amount of child support that should be paid in a given situation, instead of just enforcing an amount that's directly in an agreement or an order.

“They're able to, in very specific circumstances . . . increase the amount or in some cases decrease the amount of support that was to be paid under an agreement or an order.”

In British Columbia the Provincial Court Family Rules are being overhauled to focus more on mediation and encouraging settlement in a managed process, “rather than simply fighting it out in front of a judge,” says Mennie.

New Brunswick had launched a consultation period with respect to changing its provincial Family Services Act to reflect the changes in the Divorce Act, says Boucher, before a writ of election was dropped. In September, a new government was sworn in, but “I assume” that consultation is still in the pipeline, she adds.

Other provinces are likewise introducing legislation to bring their family laws into line with the amended Divorce Act. In late September, the Ontario government announced the introduction of its Moving Ontario Family Law Forward Act, 2020, intended to modernize language, simplify appeal routes and improve the online child support service.

Objectives of amended Divorce Act

  • Promoting best interests of the child
  • Changing parenting terminology to replace “custody” and “access” with “parenting orders” and concepts of “parenting time” and “decision-making responsibility”
  • Creating a new framework for changes of residence and relocation
  • Addressing family violence, including more expansive definitions
  • Helping to reduce poverty
  • Making Canada’s family justice system more accessible and efficient

Source: Department of Justice

Four principles of children’s rights

  • Non-discrimination means all children have the same right to develop their potential
  • The best interests of the child must be a primary consideration in all decisions concerning a child
  • The right to survival and development includes access to basic services and equality of opportunity
  • The views of the child must be heard and respected in all matters concerning their rights

Source: Children’s Rights Alliance

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