The law of child support is usually one of the clearer component parts of family law in Ontario. Since 2006, a Supreme Court decision referred to by family lawyers as “D.B.S.” has been the leading caselaw on the issue of child support. This has provided parents, family lawyers, and Courts with clarity in determining issues of child support. As sometimes happens with legal issues, the law of child support now appears to be going through significant changes as a result of the Supreme Court revisiting its decision in D.B.S.
The bottomline is this: if you are a parent who owes unpaid child support to an adult child, you should seek immediate legal advice to resolve your child support obligation.
You should seek immediate legal advice because the Supreme Court has indicated a willingness to revisit the issue of children ‘aging-out’ of child support. Under Ontario’s Family Law Act, a parent has an obligation to support a child who is a minor (i.e., under the age of eighteen), is enrolled in a full-time program of education, or if the child is disabled. Up until recently, Ontario’s Courts and family lawyers have generally interpreted this Section to mean that Court proceedings to enforce child support obligations must be commenced while the child is still entitled to receive support. In other words, if your child is already an independent adult, then the issue of retroactive child support is likely moot.
In late 2020, the Supreme Court released its decision in a British Columbia case called Michel v. Graydon. In Graydon, the mother brought an application to enforce a child support order requiring the father to pay child support. At the time the application was brought, the child was an adult, and no longer entitled to receive on-going child support from the father. The mother argued that she should be able to receive retroactive child support going back nearly eleven years. On appeal, the Supreme Court agreed, and ordered the father to pay retroactive child support.
So, what does a Supreme Court case about British Columbia legislation mean to Ontario parents? Well, it opens the door to similar changes in Ontario. In general, the Supreme Court’s decision in Graydon points to a shift in attitude by the Court. Parents will not be able to dodge retroactive child support obligations by just ‘waiting’ until their child ‘ages-out’ of child support eligibility. The Supreme Court will be revisiting the issue of child support in the context of Ontario’s legislation this year when it hears the case of Colucci v. Colucci, and it is reasonable to expect a continuation of its re-evaluation of child support similar to the Graydon case.
If you have unpaid child support obligations, and your child is now adult, contact the Family Law Team at Cunningham Swan so that we can help you reach a resolution. We are here to help.