Danelle Michel Appellant v. Sean Graydon, 2020 SCC 24

SUPREME COURT OF CANADA Citation: Michel v . Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763 Appeal Heard and Judgment Rendered: November 14, 2019 Reasons for Judgment: September 18, 2020 Docket: 38498 Between: Danelle Michel Appellant and Sean Graydon Respondent - and - West Coast Legal Education and Action Fund Association Intervener Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. Reasons for Judgment: (paras. 1 to 37) Brown J. (Moldaver, Côté, Rowe and Kasirer JJ. concurring) Concurring Reasons: (paras. 38 to 135) Martin J. (Wagner C.J. concurring) Concurring Reasons: (para. 136) Abella J. (Karakatsanis J. concurring) michel v. graydon

Danelle Michel Appellant v. Sean Graydon Respondent and West Coast Legal Education and Action Fund Association Intervener Indexed as: Michel v. Graydon 2020 SCC 24 File No.: 38498. Hearing and judgment: November 14, 2019. Reasons delivered: September 18, 2020.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for british columbia Family law — Support — Child support — Retroactive support — Mother seeking retroactive variation of child support order under British Columbia’s Family Law Act — Variation sought after child had become adult — Whether court has jurisdiction to vary child support order after order has expired and after child support beneficiary has ceased to be child — Family Law Act, S.B.C. 2011, c. 25, s. 152 .

M and G were in a common law relationship and are the parents of A, born in 1991. After M and G separated in 1994, A lived with M, and G agreed to pay child support based upon his stated annual income. This was formalized in a consent order made in 2001. G had, however, understated his income from the time of the consent order — with the exception of 2004 — until his child support obligation was terminated by court order in 2012.

In January 2015, M applied under s. 152 of British Columbia’s Family Law Act (“ FLA ”) to retroactively vary child support for the period between April 2001 and April 2012, to reflect G’s actual income during that period of time. The hearing judge allowed M’s application and G was ordered to pay $23,000 in retroactive child support. The Supreme Court of British Columbia allowed G’s appeal and set aside the hearing judge’s order. In its view, the Court’s conclusion in D.B.S. v.

S.R.G. , 2006 SCC 37 , [2006] 2 S.C.R. 231, that an application for child support under the federal Divorce Act had to be made while the child remained a “child of the marriage” was equally applicable where child support was sought under the FLA . The Court of Appeal dismissed M’s appeal. Held : The appeal should be allowed and the order of the hearing judge reinstated. Per Moldaver, Côté, Rowe, Brown and Kasirer JJ.:

Section 152 of the FLA authorizes a court to retroactively vary a child support order, irrespective of whether the beneficiary is a “child” at the time of the application, and irrespective of whether the order has expired. The order of the hearing judge should therefore not have been disturbed. When deciding an application for retroactive child support, a court must analyze the statutory scheme in which the application was brought, and the different policy choices made by the federal and provincial governments must be respected.

In D.B.S. , the Court examined the enforcement mechanism set out in s. 15.1 of the Divorce Act , which addresses original child support orders, and concluded that a court has no authority to grant a retroactive award of child support under that provision if the child beneficiary is no longer a “child of the marriage” at the time of the application. The Court did not consider or decide the issue of retroactive variation orders under s. 17 of the Divorce Act .

Accordingly, D.B.S. does not stand for the proposition that courts can retroactively vary child support only while the child beneficiary is a “child of the marriage”; furthermore, the Court in D.B.S. did not state a sweeping principle that transcends the Divorce Act to embrace all other statutory schemes regardless of legislative intent. The Court insisted that provinces remain free to espouse a different paradigm than that adopted by Parliament in the Divorce Act .

Where they do so via legislation establishing an application-based regime such as the FLA , and where an application for retroactive child support is brought thereunder, it is that legislation which governs a court’s authority to grant retroactive child support. Courts should not be hasty to recognize jurisdictional impediments that bar applications for retroactive child support. Jurisdictional constraints are inimical to the principles and policy objectives articulated in D.B.S. , and may be imposed only where the legislature has clearly intended that they be imposed.

Such constraints must therefore be apparent in the statutory scheme, bearing in mind that preventing courts from even considering an award for retroactive child support would prevent enforcement of an unfulfilled legal obligation even in the most appropriate of circumstances. Unless compelled by the applicable legislative scheme, courts should avoid creating an incentive whatsoever for payor parents to avoid meeting their child support obligations.

For the purposes of determining who is eligible to receive child support, the FLA defines the term “child” in different ways; but in essence, says that children who are dependent on their parents are eligible to receive child support.

Section 152 authorizes a court to change, suspend or terminate an order respecting child support, and to do so prospectively or retroactively. Far from erecting barriers, s. 152 of the FLA creates an avenue for courts to retroactively change any child support order, irrespective of the beneficiary’s dependent status and irrespective of whether the order is extant at the time of the application.

Section 152(1) contains no reference to the defined term “child” that might serve to qualify the authority of a court to vary child support, nor does it contain any conditions which relate to the dependent status of the beneficiary of a child support order. The text of s. 152 and the scheme of the FLA indicate that the Legislature authorized a court to vary any child support order, irrespective of whether the beneficiary remains a dependent child, and irrespective of whether the order continues to require payment.

Straining to read jurisdictional impediments into s. 152 that would prevent a court from ordering retroactive child support in circumstances in which such an order is warranted would defeat that legislative purpose and create a

perverse incentive for payor parents to avoid their obligations. Child support awards are highly discretionary, and the hearing judge’s findings and inferences of fact may not be disturbed absent an error on an extricable question of law, a palpable and overriding error, or a fundamental mischaracterization or misapprehension of the evidence.

In the present case, the hearing judge was correct to conclude that s. 152 gave him authority to order retroactive child support, he identified and applied the appropriate factors from D.B.S. , and his conclusion that A experienced hardship in her childhood as a result of G’s neglect of his child support obligations was amply supported on the record. He also found that G would not experience hardship from a retroactive award.

G’s failure to accurately disclose his income at the time of the 2001 order, and to disclose material changes in his income for the 11 years that followed, constituted blameworthy conduct, which justifies an order for retroactive child support. Further, there is no basis for interfering with the hearing judge’s conclusion that M’s delay in seeking retroactive support was reasonable. Finally, it was clearly appropriate for the hearing judge to award support dating back to the 2001 consent order, as the date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct.

Per Wagner C.J. and Martin J.: There is agreement with the majority’s conclusion and with its analysis of s. 152 of the FLA , and there is agreement that D.B.S. did not decide the question at issue in this case. However, there are other compelling considerations and numerous additional reasons why s. 152 should be read to permit applications such as the one in this case. The jurisprudence on child support calls for a fair, large and liberal construction and

interpretation as best ensures the attainment of its objects. Such objects include a consideration of the best interests of the child. The required contextual and purposive reading of s. 152 thus requires the Court to look to its wider legislative purposes, societal implications, and actual impacts. Seen this way, a jurisdictional bar preventing these cases from being heard not only rests on unsound legal foundations, it is inconsistent with the bedrock principles underlying modern child support and contributes to systemic inequalities.

The purpose and promise of child support is to protect the financial entitlements due to children by their parents. Canadian jurisprudence has not consistently fulfilled that promise when it comes to historical child support, when retroactive child support is sought after the child no longer qualifies as a beneficiary under the applicable legislation.

This is evidenced by muddled jurisprudence: confused, contradictory, and divided judgments across different provinces about whether applications for historical awards can be considered, and a multiplying number of exceptions to and other creative ways around principles set out in D.B.S. 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. Under s. 152 of the FLA , a debt exists if the child qualified as a beneficiary at the time the support was due, irrespective of their status at the moment of the application.

This reading not only accords with the text, legislative scheme, and purpose of s. 152, it promotes the best interests of children, 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 D.B.S. , when interpreting s. 15.1 of the Divorce Act , the majority of the Court expressed the view that courts have no jurisdiction to hear original applications for child support brought after a child ceases to be a “child of the marriage”. These comments have led some courts to believe that the same jurisdictional bar also prevents applications to vary historical child support under s. 17 of the Divorce Act , and under similarly-worded provincial legislation, like s. 152 of the FLA . However, D.B.S. did not decide the issue for variation orders under s. 17 .

There is therefore no binding authority requiring s. 152 to be read as imposing a jurisdictional bar on the hearing of variation application for historical child support.

Section 152 must be interpreted and applied in accordance with first principles. In addition to the reasons provided by the majority, there are other strong and equally compelling reasons that support allowing the consideration of historical child support claims.

An analysis that takes into account the policies and values of contemporary Canadian society, focuses on the best interests of the child, and interprets s. 152 in a fair, large, and liberal manner to best ensure the attainment of the objects of child support clearly supports permitting historical child support claims to be heard by a court to determine if monies are owing and what amounts may be fairly recovered.

A procedural bar to historical child support claims prevents access to justice, runs counter to the best interest of many children, gives rise to an under-inclusive outcome, and reinforces patterns of socio-economic inequality. It operates to prevent applications advanced on behalf of Canada’s children from ever being heard on their merits. The courtroom doors should not be closed because certain categories of debts owed to children are classified as coming “too late”.

Unmet child support obligations, whether they are in the form of arrears or have not yet been judicially recognized, are a valid debt that must be paid, similar to any other financial obligation, regardless of whether the quantum is significant. Further, the obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it, because child support is a continued obligation owed independently of any statute or court order. Any

interpretation of s. 152 should support the modern understanding of child support and not encourage behaviour that undercuts its values, efficiency, or effectiveness. Thus, the court should not create a perverse incentive by granting payor parents immunity after the child ceases to be a child of the marriage. Preventing historical claims for child support under s. 152 of the FLA also ignores how family law calls for an approach that takes into account the broader social framework in which family dynamics operate.

Gender roles, divorce, separation, and lone parenthood contribute to child poverty and place a disproportionate burden on women. A bar against applications for historical child support means children have gone without their due, and the law provides no remedy for the hardship this has created for the children and their caregivers, most of whom are still women. Today, women still bear the bulk of child care and custody obligations and earn less money than men, so women’s poverty remains inextricably linked to child poverty.

Women who obtain custody are often badly placed to evaluate their co-parent’s financial situation and to take action against it. Measures that place further barriers on their ability to claim and enforce their rights, like a jurisdictional bar, inhibit their ability to improve their circumstances and those of their children. Family law’s holistic approach demands taking account of the interconnected nature of issues of child support, child poverty, and the consequent feminization of poverty.

A system that can account for the social dynamics which act to impoverish certain members of society over others, or to prevent them from accessing the courtroom and reclaiming their rights, is a fairer system for all. The principles of child support also favour the

interpretation that is favourable to children such that the best interest of the child is at the heart of any interpretive exercise. Moreover, an

interpretation adverse to the pre-existing common law rights of children and to the interests of

recipient parents should be avoided absent clear statutory expression. The best interests of the child, which are intrinsically tied to thoseof their caregiver, are in favour of reading s. 152 of the FLA to allow applications for historical child support. Removing the jurisdictional bar from variation applications means that courts will be called upon to hear these matters ontheir merits.

Judges will have to first determine whether there is a debt outstanding and will then have to consider what would be a fairaward under the D.B.S. factors: the recipient parent’s reason for delaying their application for child support, the conduct of the payorparent, the circumstances of the child, and the hardship the award creates for the payor parent. Under the first factor, there are manyreasons why even a person in need might delay making an application.

There is a growing body of jurisprudence and social sciencefindings demonstrating that, sometimes, parents delay their application for child support to protect their children from harm or becausemaking an application is impracticable or inaccessible in their circumstances. The focus should be on whether the reason provided isunderstandable rather than whether there is a reasonable excuse, taking into account a generous appreciation of the social context inwhich the claimant’s decision to seek child support was made.

With respect to the conduct of the payor parent, D.B.S. purposively provided an expansive definition of blameworthyconduct, being anything that privileges the payor parent’s own interests over their children’s right to an appropriate amount of support.The failure to disclose actual income, a fact within the knowledge of the payor, is a failure of a significant obligation and is often the rootcause of a delayed application. The primary focus needs to be on the payor’s actions and their consequences — the payor’s subjectiveintention is rarely relevant.

The presence of blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimedchild support. Regarding the third factor, a child’s needs may be relevant in awarding and calculating retroactive child support. If therehas been hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only ofan award but also of extending the temporal reach of the award. However, this does not mean that any kind of hardship is a necessaryantecedent to an award of retroactive child support.

Furthermore, the fact that a child did not have to suffer hardship because of theircustodial parent’s sacrifice is not one that weighs against awarding retroactive or historical child support. The final factor — the hardship that the award might entail — takes into account the ease with which the payor might beable to pay the award. If the award would cause the payor undue hardship, and if the other factors do not militate against it, this factormay weigh against an award or affect its temporal scope to achieve a fair result.

While the focus is on hardship to the payor, that hardshipcan only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not orderingthe payment of sums owing but unpaid. Regarding the date to which a child support award should be retroactive, the date of retroactivity should perhaps correspondto the date when the support ought to have been paid. Effective notice to the payor parent, the default date to which a child support awardshould be retroactive, is a broad concept which goes well beyond actual knowledge of a filed variation application.

The distinct featuresof child support reduce somewhat the strength of concerns about lack of notice, and today, certainty for payor parents is provided by theFederal Child Support Tables and the payor parents’ knowledge that they are liable according to their actual income and will be heldaccountable for missed payments and underpayment. Finally, historical child support can be awarded in part or in whole to either or both the child or their parent, given findings offact and depending on whom the hardship — if there was any — was visited upon.

Courts should be flexible when determining how toapportion the award between the recipient parent and the child beneficiary. However, there should be no general reluctance to put moniesin the hands of the recipient parent. Where the recipient parent and child beneficiary agree on how the award should be divided, thecourt should be reluctant to disturb their agreement. Per Abella and Karakatsanis JJ.: There is agreement with the majority. There is also agreement with Martin J., who addsimportant policy considerations. Cases Cited By Brown J. Explained: D.B.S. v.

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Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part II)” (1991), 7 C.F.L.Q. 271. Smith, D. “Retroactive Child Support — An Update” (2007), 26 C.F.L.Q. 209. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. APPEAL from a judgment of the British Columbia Court of Appeal (Willcock, Savage and Hunter JJ.A.), 2018 BCCA 449 , 19 R.F.L. (8th) 26, 20 B.C.L.R. (6th) 1, [2018] B.C.J. No. 3759 (QL), 2018 CarswellBC 3197 (WL Can.), affirming a decision of Young J., 2017 BCSC 887 , [2017] B.C.J.

No. 1031 (QL), 2017 CarswellBC 1442 (WL Can.), setting aside an order of Smith Prov. Ct. J., B.C. Prov. Ct., No. F3319, September 26, 2016. Appeal allowed. Peter M. Mennie and Michael Sobkin , for the appellant. Ryan Dueckman , Karen Tiwana and Shawn Duguay , for the respondent. Jennifer Klinck , Dustin Klaudt and Joshua Sealy-Harrington , for the intervener. The reasons for judgment of Moldaver, Côté, Brown, Rowe and Kasirer JJ. were delivered by Brown J. — I.

Introduction and Background [ 1 ] At the conclusion of the hearing of this appeal, the Court allowed the appeal with costs throughout, and reinstated the order of Judge G. Smith of the Provincial Court of British Columbia, dated September 26, 2016, with reasons to follow. These are the

reasons for that judgment. [ 2 ] In D.B.S. v. S.R.G .; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, this Court interpreted s. 15.1 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .), as precluding a court from granting an order on an original application for retroactive child support unless the child beneficiary is a “child of the marriage”, as defined in the Divorce Act , when the application is made.

This appeal raises the issue of whether the court’s authority to grant an order under s. 152 of the Family Law Act , S.B.C. 2011, c. 25 (“ FLA ”), is similarly confined. More particularly, is it possible to vary a child support order under the FLA after the order has expired, and after the child support beneficiary ceases to be a “child” as defined in the FLA ? [ 3 ] This question arises from the breakdown of a common law relationship between the parties, Danelle Michel and Sean Graydon. They are the parents of A.G., born in December 1991. After Ms. Michel and Mr. Graydon separated in 1994, A.G. lived with Ms.

Michel, and Mr. Graydon agreed to pay child support of $341/month, based on an annual income of $39,832. This was formalized in a consent order made on March 29, 2001. [ 4 ] Mr. Graydon had, in fact, understated his income. He earned $45,580 in 2001, and — with the exception of 2004 — his actual annual income continued to exceed his disclosed income until his child support obligation was terminated by court order effective April 30, 2012. [ 5 ] During A.G.’s childhood, Ms.

Michel was dependent on income assistance or disability benefits, in return for which she was required to assign her rights to receive child support to the Minister under the Employment and Assistance Act , S.B.C. 2002, c. 40 . While Ms. Michel’s rights were assigned, the Minister never authorized an application to review child support for A.G. [ 6 ] In January 2015, Ms. Michel applied to the Provincial Court to retroactively vary child support for the period between April 2009 (later amended to April 2001) and April 2012, to reflect Mr. Graydon’s actual income during that time.

In granting that order, Smith Prov. Ct. J. rejected Mr. Graydon’s argument that, because A.G. was not a “child” when Ms. Michel brought her application, the court lacked authority to grant the order sought. In his view, and while his authority may have been so restricted under the now-repealed Family Relations Act , R.S.B.C. 1996, c. 128 , no such limitation exists in the FLA . Applying this Court’s decision in D.B.S. , he held that the circumstances of Ms. Michel’s application warranted granting an award for retroactive child support. Her delay in bringing the application was reasonable; Mr.

Graydon had engaged in blameworthy conduct by failing to accurately disclose his income; A.G. suffered as a result, as she could not attend her desired post-secondary program; and Mr. Graydon would not experience hardship from a retroactive award. He therefore ordered Mr. Graydon to pay $23,000 in retroactive child support — half to Ms. Michel, and half to A.G. [ 7 ] The Supreme Court of British Columbia allowed Mr.

Graydon’s appeal ( 2017 BCSC 887 ), holding that this Court’s conclusion in D.B.S. that an application for child support must be made while the child remains a “child of the marriage” was equally applicable where child support is sought under the FLA . Ms. Michel then appealed to the British Columbia Court of Appeal ( 2018 BCCA 449 , 20 B.C.L.R. (6th) 1). [ 8 ] After Ms. Michel’s appeal was heard, but before judgment was rendered, the Court of Appeal sat as a five-member division in Dring v. Gheyle , 2018 BCCA 435 , 17 B.C.L.R. (6th) 30.

In Dring , a majority of the Court of Appeal held that the FLA does not authorize a court to retroactively vary child support if the beneficiary is not a “child” at the time of the application. In light of Dring , Ms. Michel’s appeal was dismissed. D.B.S. , the Court of Appeal held, established a general rule precluding all orders for child support where the application is brought after the beneficiary is no longer a “child”. It followed that the hearing judge did not have authority to grant the order for retroactive child support that Ms. Michel sought. [ 9 ] I disagree.

Section 152 of the FLA authorizes a court to retroactively vary a child support order, irrespective of whether the beneficiary is a “child” at the time of the application, and irrespective of whether the order has expired. The order of Smith Prov. Ct. J. should therefore not have been disturbed. II. Analysis A. Authority to Grant a Retroactive Child Support Award

(1) D.B.S. [ 10 ] In D.B.S. , this Court endorsed certain important principles governing orders for child support (including retroactive child support) that merit restating here: - 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 (para. 38); - Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38); - The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” (paras. 38-45). - 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 (para. 2); - Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5); 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 theretroactive award might entail (para. 133). [11] Further, this Court cautioned that, when deciding an application for retroactive child support, a court must analyze thestatutory scheme in which the application was brought (para. 54): “different policy choices made by the federal and provincialgovernments must be respected” (para. 55).

While a “retroactive” child support award does not impose a new obligation but simplyserves to enforce a past unfulfilled obligation, the mechanism for enforcing that obligation must be found in the governing legislativescheme. A court can enforce an unfulfilled child support obligation only where the governing legislation provides a mechanism forenforcement, and only in accordance with that mechanism. [12] In D.B.S., this Court examined the enforcement mechanism set out in s. 15.1 of the Divorce Act, which addressesoriginal child support orders.

This result follows from the language of s. 15.1, which permits a court to make an original ordercompelling child support payments only for “children of the marriage”.

And s. 2 defines “child of the marriage” as “a child of twospouses or former spouses who, at the material time, is under the age of majority and who has not withdrawn from their charge, or is theage of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge orto obtain the necessaries of life.” The Court concluded in D.B.S. that the “material time” for retroactive child support awards is the timeof the application, and therefore that a court has no authority to grant a retroactive award of child support under s. 15.1 of the Divorce Actif the child beneficiary is no longer a “child of the marriage” at the time of the application (paras. 88-89). [13] Since D.B.S., lower courts have grappled with whether the same principle also applies to provincial legislativeschemes, or to variation applications under s. 17 of the Divorce Act (see Colucci v.

Colucci, 2017 ONCA 892, 138 O.R. (3d) 321; Dring;Brear v. Brear, 2019 ABCA 419, 97 Alta. L.R. (6th) 1). In particular, courts have recognized that unjust results can flow from imposingimpediments that prevent otherwise deserving parents from seeking retroactive child support (Colucci, at para. 26; Dring, atparas. 155-56, per Hunter J.A., concurring; Brear, at para. 60).

Indeed, fairness concerns appear to have animated this Court’s approachto jurisdiction in D.B.S., as it saw fit to create an exception that applies whenever a recipient parent initiates formal proceedings while thebeneficiary remains a child of the marriage (para. 130). Moreover, and significantly, because women continue to face a disproportionateburden of the economic consequences flowing from marriage breakdown (Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, atpp. 849-50; I.F., at para. 20), they are also most affected by barriers that prevent courts from considering applications for retroactivechild support.

Motivated by these concerns, lower courts continue to create exceptions establishing jurisdiction to award support inrespect of beneficiaries who are no longer children of the marriage (Brear, at para. 63). [14] Given this history, I agree with my colleague Martin J. that this Court’s

interpretation in D.B.S. of “material time”, asthat term appears in s. 2 of the Divorce Act, might merit reconsideration. In my respectful view, however, our deliberations on this pointwould likely benefit from submissions on-point. Further, it is unnecessary to undertake that reconsideration in order to resolve thisappeal. The narrow question to be decided here is, ultimately, whether the FLA authorizes variation of an existing child support orderafter the beneficiary ceases to be a “child”. Mr.

Graydon argues that D.B.S. states a general rule conditioning a court’s authority to grantboth original and variation applications for retroactive child support upon the child beneficiary remaining a dependent child.

He reliesheavily upon a single passage from D.B.S. where, in disposing of one of the four appeals addressed in the D.B.S. reasons (Henry v.Henry), which involved an application to retroactively vary an existing child support order, Bastarache J., for the majority, wrote thefollowing: I would add that the eldest child affected by Rowbotham J.’s order was no longer a child of the marriage when the Notice of Motion forretroactive support was filed. In the circumstances of this appeal, however, this fact has no effect on the jurisdiction of the court to makea retroactive child support order under the Divorce Act.

Because Mr. Henry did not disclose his income increases to Ms. Henry earlier,she was compelled to serve him with a Notice to Disclose/Notice of Motion in order to ascertain his income for the years relevant to thisappeal. This formal legal procedure, contemplated in the Guidelines and a necessary antecedent to the present appeal, sufficed to triggerthe jurisdiction of the court under the Divorce Act. Because it was completed prior to the time the eldest child ceased being a child of themarriage, the court was able to make a retroactive order for this daughter. [para. 150] Mr.

Graydon’s argument is that it is necessarily implicit in this passage that Bastarache J. would have found that, but for the earlierdelivery of the Notice to Disclose/Notice of Motion, the court would have lacked authority to make the order sought, since the subjectchild “was no longer a child of the marriage when the Notice of Motion for retroactive support was filed.” [15] Significantly, however, the Henry appeal arose from an application to vary an existing child support order whichengaged s. 17 of the Divorce Act. Unlike s. 15.1, ss. 17(1) and 17(4) do not refer to “children of the marriage”.

While it may therefore nothave been strictly necessary to address jurisdiction in relation to the Henry appeal, it remains that “a case is only an authority for what itactually decides” (Quinn v. Leathem, [1901] A.C. 495 (H.L.), at p. 506). By referencing the phrase “child of the marriage”, BastaracheJ.’s comments were plainly limited to the jurisdictional issue that arises under s. 15.1 of the Divorce Act, which he had already canvassedin his reasons (D.B.S., at paras. 88-89). I therefore reject Mr.

Graydon’s suggestion that the discussion of jurisdiction in relation to theHenry appeal was implicitly intended to apply to retroactive variation orders under s. 17 of the Divorce Act, without any reference to thelanguage of that provision. On my reading, the Court did not consider or decide the issue as it was unnecessary to dispose of theappeal.

D.B.S. therefore does not stand for the proposition that courts can retroactively vary child support only while the childbeneficiary is a “child of the marriage” (see Colucci, at paras. 12-14; Dring, at paras. 190-200, per Hunter J.A., concurring; Brear, atparas. 46-50). [16] Nor do I accept that the Court in D.B.S. stated a sweeping principle that transcends the Divorce Act to embrace allother statutory schemes and operates irrespective of legislative intent. Indeed, the Court insisted that provinces remain “free to espouse adifferent paradigm” than that adopted by Parliament in the Divorce Act (para. 54).

And where they do so via legislation establishing anapplication-based regime such as the FLA, and where an application for retroactive child support is brought thereunder, it is thatlegislation which governs a court’s authority to grant retroactive child support (paras. 55-56). [17] Moreover, courts should not be hasty to recognize jurisdictional impediments that bar applications for retroactivechild support. This is because jurisdictional constraints are “inimical to the principles and policy objectives articulated in [D.B.S.]”

(Brear, at para. 60), and may be imposed only where the legislature has clearly intended that they be imposed. Such constraints musttherefore be apparent in the statutory scheme, bearing in mind that preventing courts from even considering an award for retroactivechild support would prevent enforcement of an unfulfilled legal obligation even in the most appropriate of circumstances.

As Sharpe J.A.explained in Colucci: I can see no reason why the court should be deprived of jurisdiction to consider the request of a recipient parent who struggled to supportthe children and to shift part of that burden to the payor parent if there was a change in circumstance that would have justified a variationwhile the children were still children of the marriage . . . . [A] regime that gave payor parents immunity after the children ceased to bechildren of the marriage would create a perverse incentive.

If the payor parent is to be absolved from responsibility once the childrencease to be “children of the marriage”, the payor whose income increases might be encouraged not to respond to his or her increasedobligations in the hope that the reciprocal spouse will delay making an application for a variation increasing support until the childrenlose their status to avoid opening the door to an increased obligation . . . . [para. 26] Unless compelled by the applicable legislative scheme, courts should avoid creating any incentive whatsoever for payor parents to avoidmeeting their child support obligations (D.B.S., at para. 4).

Permitting retroactive child support awards, as this Court recognized inD.B.S., is perfectly consistent with the child support system (para. 60).

(2) The FLA [18] I turn now to interpreting the relevant provisions of the statutory scheme at issue here: the FLA. For the purposes ofdetermining who is eligible to receive child support, the FLA defines the term “child” in different ways. While “child” is defined in s. 1as meaning “a person who is under 19 years of age”, the FLA expands that general definition in relation to a parent or guardian’s duty toprovide child support (ss. 146 and 147).

In essence, the FLA (like the Divorce Act) says that children who are dependent on their parentsare eligible to receive child support. [19] Further, the FLA authorizes two kinds of applications respecting child support. First, s. 149(1) and (2), taken together,authorize a child’s parent or guardian, the child, a person acting on behalf of the child or (if the right to child support has been assignedto a minister) a minister to apply for an order of child support.

Secondly, s. 152 authorizes a court to “change, suspend or terminate anorder respecting child support”, and to do so prospectively or retroactively, so long as the court is “satisfied that at least one of thefollowing exists, and take[s] it into consideration”: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child supportwas made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. [20] Ms. Michel relies on s. 152 in support of her application — that is, she says she seeks to vary the March 29, 2001consent order. For two reasons, Mr. Graydon argues that she cannot succeed under s. 152. First, he contends that the application must bemade while the beneficiary remains a dependent child. And secondly, he says that s. 152 can be used only to vary an extant order thatimposes continuing child support obligations at the time the application is made.

Properly interpreted, however, and as I shall explain, s.152 of the FLA does not support either of Mr. Graydon’s arguments. Far from erecting barriers, s. 152 creates an avenue for courts toretroactively change any child support order, irrespective of the beneficiary’s dependent status and irrespective of whether the order isextant at the time of the application. [21] It is now trite law in Canada that statutory

interpretation entails discerning legislative intent by examining statutorytext in its entire context and in its grammatical and ordinary sense, in harmony with the statute’s scheme and objects. In this case, thisCourt’s task of interpreting s. 152 of the FLA has been lightened considerably by persuasive judicial analyses at other courts regarding itsmeaning (see Dring, at paras. 133-73, per Hunter J.A., concurring) and the meaning of similar provisions in other legislation (see Brear,at paras. 29-50, per Pentelechuk J.A.; Colucci, at paras. 8-31, per Sharpe J.A.; Buckingham v.

Buckingham, 2013 ABQB 155, 554 A.R.256, at paras. 40-48, per Strekaf J. (as she then was)). [22] Examining s. 152 of the FLA in the light of this Court’s examination in D.B.S. of s. 15.1 of the Divorce Act, whatbecomes readily apparent is what s. 152 does not contain. The FLA replaced its predecessor, the Family Relations Act, which stated, forboth original and variation applications, that “[a]ny person may apply for an order . . . on behalf of a child” (s. 91(3)).

Relying on D.B.S.,courts have interpreted this language as conditioning a court’s authority to order child support upon the beneficiary’s dependant status,which was the state of the law in British Columbia when the FLA was enacted (de Rooy v. Bergstrom, 2010 BCCA 5, 4 B.C.L.R. (5th)74, at para. 65, citing McDonald v.

McDonald, 2008 BCSC 1203, at para. 34 While it is unnecessary to decide here whether areference to the defined term “child” should properly be construed as limiting the court’s authority to grant retroactive support, what isclear is that this same language was not included in s. 152(1) when the FLA was enacted. Section 152(1) contains no reference to thedefined term “child” that might serve to qualify the authority of a court to vary child support.

Rather, s. 152(1) states simply that “[o]napplication, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.”While s. 152(2) lists preconditions (at least one of which must be present before making a variation order), none of those conditionsrelate to the dependent status of the beneficiary of a child support order. [23] Examining the FLA more broadly makes plain that, where the Legislature intends to state limitations relating to thetypes of persons who can bring an application (or on whose behalf an application can be brought), it states such limitations expressly.

Inthis respect, s. 152’s bare reference to an “application”, with no conditions upon who may apply, contrasts sharply with otherapplications authorized by the FLA (see, e.g., s. 45 (“application by a guardian”); s. 148(3) (“application by a party”); s. 157(1)(“application by a payor or recipient”); s. 164(3) (“application by a spouse”)). The absence from s. 152 of any limitations comparable tothose used throughout the FLA implies that they were deliberately excluded (see R. Sullivan, Sullivan on the Construction of Statutes(6th ed. 2014), at p. 248).

[ 24 ] Further, s. 152 allows the court to “change, suspend or terminate ” an order respecting child support. Given that s. 170 (

a) of the FLA authorizes child support orders of an indefinite duration, payor parents may need to resort to s. 152 to terminate an indefinite order after the support beneficiary ceases to be a dependent child. Indeed, that is exactly what Mr. Graydon did to terminate his child support payments in 2012. There would, however, be no way to change or terminate an indefinite child support order after the beneficiary ceases to be a “child”, if s. 152 were subject to the limitation advanced by Mr. Graydon ( Dring , at paras. 142-44 ).

In my view, the Legislature is unlikely to have intended that result. [ 25 ] As to Mr. Graydon’s argument that s. 152’s operation is confined to varying an extant (that is, not expired or terminated) child support order, I reiterate that retroactive child support simply holds payor parents to their existing (and unfulfilled) legal obligations ( D.B.S. , at para. 2). Modifying a previous court order to reflect the proper measure of support “is in no way arbitrary for the payor parent” ( D.B.S. , at para. 68).

Thus, there is nothing wrong in principle with varying an order that no longer imposes continuing child support obligations at the time the application is made, so long as the statutory text allows for that result. [ 26 ] With respect to the language of s. 152, I observe that the provision allows the court to vary “ an order respecting child support”. Mr. Graydon’s argument therefore rests on the premise that once a child support order expires, it is no longer an order respecting child support.

Such a conclusion is belied, however, by examining s. 152 alongside other provisions of the FLA that expressly limit the court’s ability to vary orders that are no longer extant.

Section 167 of the FLA , for example, authorizes a court to vary a spousal support order. Much of s. 167 mirrors s. 152, but s. 167(3) imposes an additional caveat where the variation relates to an expired spousal support order: . . . if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event , may not make an order . . . for the purpose of resuming spousal support unless satisfied that (

a) the order is necessary to relieve economic hardship that (

i) arises from [a change in the condition, means, needs or other circumstances of either spouse [that] occurred since the order respecting spousal support was made], and (ii) is related to the relationship between the spouses, and (

b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order. To be sure, the text of s. 167 confines a court’s ability to vary an expired order.

The point here is twofold: s. 167 shows that the FLA contemplates that a court may vary an expired order; and, s. 152 places none of the restrictions upon a court’s authority to vary a child support order which s. 167 imposes upon a court’s authority to vary a spousal support order. [ 27 ] Similarly, while s. 187(1) of the FLA allows the court to shorten, extend, terminate, or otherwise change an order respecting protection, s. 187(2) requires an application under s. 187 to be made “before the expiry of the order that is the subject of the application”.

This provision further demonstrates that the FLA allows expired orders to be varied, subject to the express limitations that it imposes for specific types of orders. Mr.

Graydon is effectively urging this Court to read similar limitations into s. 152, but that avenue is simply not open to us where the scheme of the FLA shows the Legislature’s intent to give courts broad discretion in matters of child support. [ 28 ] In sum, the text of s. 152 and the scheme of the FLA indicate that the Legislature authorized a court to vary any child support order, irrespective of whether the beneficiary remains a dependent child, and irrespective of whether the order continues to require payment.

This makes sense given that one of the purposes for replacing the Family Relations Act with the FLA was to “expan[d] on the circumstances under which a court may vary a child support order” (British Columbia, Ministry of Attorney General, White Paper on Family Relations Act Reform: Proposals for a new Family Law Act (2010), at p. 117).

Straining to read jurisdictional impediments into s. 152 that would prevent a court from ordering retroactive child support in circumstances in which such an order is warranted would defeat that legislative purpose and create a perverse incentive for payor parents to avoid their obligations. B. Is a Retroactive Award Appropriate in This Case? [ 29 ] Having decided that the applicable legislative scheme confers authority on a court to order retroactive child support, the question then arises whether a court should order retroactive child support in the circumstances of the case.

To be clear, and as D.B.S. shows, this is a distinct question and entails a distinct analysis. A court hearing an application for retroactive child support must consider whether the recipient parent’s delay in seeking variation is reasonable in the circumstances, the payor parent’s conduct, the circumstances of the child, and whether any hardship would result from a retroactive award ( D.B.S. , at para. 133).

These same considerations are equally applicable after the child support beneficiary ceases to be a dependent child; while the beneficiary may no longer be a dependent child because of the recipient parent’s delay, it remains open to the recipient parent to show that their delay was reasonable. [ 30 ] Child support awards are highly discretionary, and the hearing judge’s findings and inferences of fact may not be disturbed absent an error on an extricable question of law, a palpable and overriding error, or a fundamental mischaracterization or misapprehension of the evidence ( Rick v.

Brandsema , 2009 SCC 10 , [2009] 1 S.C.R. 295, at para. 30 ; see also Hickey v. Hickey , 1999

691 (SCC), [1999] 2 S.C.R. 518, at para. 11). Here, as I have explained, the hearing judge was correct to conclude that s. 152gave him authority to order retroactive child support. He also identified and applied the factors I have just recounted from D.B.S. Hisconclusion that A.G. experienced hardship in her childhood as a result of Mr. Graydon’s neglect of his child support obligations wasamply supported on the record. The hearing judge also found that Mr. Graydon would not experience hardship from a retroactive award. [31] As to Mr. Graydon’s conduct as the payor parent in this case, it is really this simple.

When a payor parent fails to paythe appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the meansto provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of apayor parent’s neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (D.B.S., at para. 5):there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents’ indifference to theirchild support obligations.

This is not to say that hardship is required to ground an award for retroactive child support, as there is alsonothing exceptional about relief that creates a systemic incentive for payor parents to meet their obligations in the first place. Just as anorder of child support is intended to provide children with the same standard of living they enjoyed when their parents were together(D.B.S., at para. 38), an order of retroactive child support provides an (albeit imperfect) remedy where that does not occur.

And as thisCourt recognized in D.B.S., “courts are not to be discouraged from defending the rights of children when they have the opportunity to doso” (para. 60). [32] Retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in theirincome. Again, D.B.S. is instructive: “. . . a payor parent who knowingly avoids or diminishes his/her support obligation to his/herchildren should not be allowed to profit from such conduct” (para. 107).

And where the strategy for avoiding child support obligationstakes the form of inadequate or delayed disclosure of income, the effect on the child support regime is especially pernicious. This isbecause the methodology adopted by the Federal Child Support Guidelines, SOR/97-175, which are expressly incorporated in the FLA,results in information asymmetry. Apart from shared parenting arrangements, the Guidelines calculate child support payments solelyfrom the payor parent’s income.

At any given point in time, therefore, the payor parent has the information required to determine theappropriate amount of child support owing, while the recipient parent may not. Quite simply, the payor parent is the one who holds thecards.

While an application-based regime places responsibility on both parents in relation to child support (D.B.S., at para. 56), thepractical reality is that, without adequate disclosure, the recipient parent will not be well-positioned to marshall the case for variation. yet, payor parents are typically well aware of their obligation as a parent to support their children, and are subject to a duty of full andhonest disclosure — a duty comparable to that arising in matrimonial negotiations (Brandsema, at paras. 47-49).

The payor parent’sobligation to disclose changes in income protects the integrity and certainty afforded by an existing order or agreement respecting childsupport. Absent full and honest disclosure, the recipient parent — and the child — are vulnerable to the payor parent’s non-disclosure. [34] It follows that I agree with the hearing judge that Mr.

Graydon’s failure to accurately disclose his income at the timeof the March 29, 2001 order, and failure to disclose material changes in his income for the 11 years that followed, constitutedblameworthy conduct, which justifies an order for retroactive child support (and which also eliminates any need to protect Mr.Graydon’s interest in the certainty of his child support obligations (D.B.S., at para. 125)). As I have explained, failure to disclose materialchanges in income undermines the child support regime imposed by the Guidelines. The record here also indicates that Mr.

Graydonknew about his daughter’s financial circumstances and made disparaging remarks about her standard of living instead of modifying hischild support payments to assist her. [35] The only true dispute before the hearing judge in relation to the factors governing retroactive child support waswhether Ms. Michel’s delay in seeking retroactive support was reasonable. The hearing judge accepted her evidence that she did notapply for retroactive support because she had suffered a severe injury and because her right to support was assigned to the Minister.

I seeno basis for interfering with the hearing judge’s conclusion that Ms. Michel’s delay was reasonable in light of those circumstances. Evenwere it otherwise, the reasonableness of Ms. Michel’s delay had to be weighed against the other factors canvassed by the hearing judge,all of which showed that a retroactive award would be appropriate. [36] Finally, Mr.

Graydon contests the effective date of retroactive child support adopted in the hearing judge’s award.The hearing judge awarded retroactive child support dating back to the March 29, 2001 consent order of child support (which he treatedas taking effect on April 1, 2001). The hearing judge’s conclusion was based on his finding that the date when Ms. Michel presented asettlement agreement to Mr. Graydon was the date of effective notice given to him. Mr. Graydon argues that merely presenting a draftsettlement agreement could not serve as effective notice.

His argument on this point is immaterial, however, because the date of effectivenotice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness). Again,in light of such conduct, there is no need to protect Mr. Graydon’s interest in the certainty of his obligations beyond the date whencircumstances changed materially (D.B.S., at para. 125).

Having furnished an inaccurate picture of his income from the start of his childsupport payments, it does not lie in his mouth to now insist that it was inappropriate for the hearing judge to award support dating back tothe March 29, 2001 consent order. Indeed, in the circumstances of this case it was clearly appropriate for the hearing judge to do so. III. Conclusion [37] For these reasons, the Court allowed Ms. Michel’s appeal with costs throughout, and reinstated the hearing judge’sorder. The reasons of Wagner C.J. and Martin J. were delivered by Martin J. — I. Introduction

[38] The purpose and promise of child support is to protect the financial entitlements due to children by their parents.Canadian jurisprudence has not consistently fulfilled that promise when it comes to historical child support, which is the term used todescribe when retroactive child support is sought after the child no longer qualifies as a beneficiary under the applicable legislation. Thisis evidenced by contrary judgments across different provinces about whether applications for historical awards can be considered, amultiplying number of exceptions to principles set out in D.B.S. v.

S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, and a growing body ofjurisprudence and social science findings demonstrating that, sometimes, parents delay their application for child support to protect theirchildren from harm or because making an application is impracticable or inaccessible in their circumstances. [39] In the case at bar, the appellant Danelle Michel asks this Court to recognize that s. 152 of British Columbia’s FamilyLaw Act, S.B.C. 2011, c. 25, does not constrain the courts’ ability to grant retroactive child support once the child beneficiary is nolonger a “child” under that legislation.

The British Columbia Court of Appeal held that, in D.B.S., this Court imposed a jurisdictional barpreventing such claims from being heard (2018 BCCA 449, 20 B.C.L.R. (6th) 1). [40] In his reasons, my colleague Brown J. analyzes s. 152 of the Family Law Act and concludes that the provinciallegislation allows parents to seek retroactive child support even after their child no longer fits the definition of “child” in s. 1 of theFamily Law Act (paras. 19-28). I agree with his conclusion, his analysis of s. 152, and that D.B.S. did not decide this question.

However,there are other compelling considerations and numerous additional reasons why s. 152 should be read to permit such applications. Thejurisprudence on child support calls for a “fair, large and liberal construction and

interpretation as best ensures the attainment of itsobjects” (Chartier v. Chartier, (SCC), [1999] 1 S.C.R. 242, at para. 32). Such objects include a consideration of thebest interests of the child. The required contextual and purposive reading of s. 152 thus requires us to look to its wider legislativepurposes, societal implications, and actual impacts.

Seen in this way, a jurisdictional bar preventing these cases from being heard notonly rests on unsound legal foundations, it is inconsistent with the bedrock principles underlying modern child support and contributes tosystemic inequalities. [41] Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are arecognized way to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid.

Such a debt is acontinuing obligation which does not evaporate or fade into history upon a child’s 18th or 19th birthday or their graduation fromuniversity. Under s. 152 of the Family Law Act, a debt exists if the child qualified as a beneficiary at the time the support was due,irrespective of their status at the moment of the application.

This reading not only accords with the text, legislative scheme, and purposeof s. 152, it 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, andrecognizes how the underpayment of child support leads to hardship and contributes to the feminization of poverty.

In short, allowingrecipient parents to make claims for historical child support is in the best interests of children and promotes equality and access to justicefor all. [42] Child support issues rarely make their way to this Court due to the high cost of appeals and the comparatively lowvalue of awards.

The evasiveness of review attaching to historical child support issues justifies that we begin to discuss and reconcile thedeeply divided and confused jurisprudence which prevents the hearing of historical child support claims across Canada. [43] In these reasons, I first provide an overview of the purposes and principles of child support in Canadian law to lay thegroundwork for a fair, large, and liberal

interpretation of the British Columbia legislation. Second, I turn to s. 152 and conclude that theFamily Law Act allows variation applications for historical child support because the imposition of a jurisdictional bar prevents access tojustice for children, fails to account for the reasons why support applications may be delayed, and creates significant financial hardshipfor children and their caregivers. Third, I discuss the factors that courts ought to take into account to determine the scope of historicalchild support awards.

My application of these principles to the facts of this case leads me to agree with Brown J. and allow Ms. Michel’sappeal. II. The Principles of Child Support [44] Child support is the means through which the law ensures that individuals with parental responsibilities providefinancial assistance to their children upon separation from their children’s other parent(s), or upon their children’s birth if the parentsnever cohabitated. The historical evolution of Canadian child support law bears on the proper

interpretation not only the Family Law Act,but also of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and similar legislation across the country. A. Pre-Guidelines Jurisprudence and Legislation on Child Support [45] Far from being solely moral in nature, the child support obligation “arises out of the common law, equity and statute”(MacMinn v. MacMinn (1995), (AB CA), 174 A.R. 261 (C.A.), at para. 15). Indeed, child support has found statutoryexpression as a feature of Canadian family law since 1855 (An Act to amend the Law relating to the custody of Infants, S. Prov. C. 1855,18 Vict., c. 126, s. 1; see also P.

Millar and A. H. Gauthier, “What Were They Thinking? The Development of Child Support Guidelinesin Canada” (2002), 17 C.J.L.S. 139, at pp. 139-40). The law has long recognized that a parent’s obligation of support to their child“arise[s] automatically, upon birth” and that these obligations “have come to be refined, quantified and amplified” through statute(D.B.S., at para. 37, citing Poissant v. Barrette (1879), 3 L.N. 12 (Que.

C.A.)). [46] Earlier statutory schemes, including the first iterations of the Divorce Act, treated need and judicial discretion as thegoverning principles in awards of child support, leaving it to judges to decide upon a reasonable sum to commit for the care of the child.In response, the courts attempted to specify guiding principles for awards of child support (see, e.g., Paras v. Paras,(ON CA), [1971] 1 O.R. 130 (C.A.), at pp. 134-35; Levesque v. Levesque (1994), (AB CA), 155 A.R. 26 (C.A.), at pp.29-42; Vincent v. Vincent (1995), (NL CA), 132 Nfld. & P.E.I.R. 181 (Nfld.

C.A.), at paras. 38-46; see also Wright v.Wright (1996), (SK CA), 141 Sask. R. 44 (C.A.), at paras. 35-39; C. J. Rogerson, “Judicial

Interpretation of theSpousal and Child Support Provisions of the Divorce Act, 1985 (Part II)” (1991), 7 C.F.L.Q. 271, at pp. 276-85). [47] Consistent with the primacy of the child’s best interests, the courts thus recognized that “the children of the marriage

should be sheltered from the economic consequences of divorce” (Willick v. Willick, (SCC), [1994] 3 S.C.R. 670, at p.690). Since the provisions of the Divorce Act evinced Parliament’s intention that “the children’s needs come first”, neither a delay inenforcing the child’s right to support on the part of the custodial parent nor the putative “retroactivity” of a support order could overridethe parent’s obligation to support their children (MacMinn, at paras. 15-16; Cherry v.

Cherry (1996), (BC CA), 24B.C.L.R. (3d) 158 (C.A.), at para. 11). [48] Commentators, however, criticized this discretionary approach, which was simultaneously subjective and needs-focussed, for being uncertain, inconsistent, and often resulting in unfair awards. In many cases, the inadequacy of awards resulted fromjudges, counsel, or parties underestimating the cost of raising a child, coupled with the courts’ insistence on proof of the child’sexpenses.

One adverse impact of this approach was to place the burden of proof on the custodial parent, though this same parent wouldoften be the least able to afford litigation (Federal/Provincial/Territorial Family Law Committee, Child Support: Public DiscussionPaper (1991), at pp. 1 and 4-5; Wang v. Wang (1998), (BC CA), 58 B.C.L.R. (3d) 159 (C.A.), at para. 13; T.Maisonneuve, “Child Support Under the Federal and Quebec Guidelines: A Step Forward or Behind?” (1999), 16 Can. J. Fam. L. 284, atp. 300).

In cases where such evidence was not adduced, there existed the concern that any award made under the prevailing approachwould “necessarily be subjective and somewhat arbitrary” (Childs v. Childs (1990), (NB CA), 107 N.B.R. (2d) 176(C.A.), at para. 6). B. Core Principles, Purposes, and Objectives in the Guidelines Era [49] The objective of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) was to remedy this situation bymaintaining the principles core to child support while providing much-needed certainty, consistency, predictability, and efficiency(Francis v.

Baker, (SCC), [1999] 3 S.C.R. 250, at paras. 39-40). In 1990, the federal, provincial, and territorialgovernments formed a Family Law Committee with the mandate to study child support in Canada. In its initial Public Discussion Paper,the Committee acknowledged the criticisms relating to child support awards, proposing a new method that would “[y]ield adequate andequitable levels of child support”, produce “objectively determinable, consistent and predictable” awards, ensure flexibility, and be“understandable and inexpensive to administer” (p. 7).

Following research and consultation, the Committee (with a reservation fromQuebec) ultimately recommended the application of a child support formula under the Divorce Act, “guided by the principle that bothparents have a responsibility to meet the financial needs of the children according to their income” (Federal/Provincial/Territorial FamilyLaw Committee, Report and Recommendations on Child Support (1995), at p. i).

In 1997, Parliament gave effect to the Committee’sproposals by introducing the Guidelines. [50] The Guidelines heralded a shift from a “need-based” regime, which focussed on expenses, to one that determines achild’s entitlement to support (D.B.S. v. S.R.G., 2005 ABCA 2, 361 A.R. 60, at para. 66 (“D.B.S. (C.A.)”)). The “Federal Child SupportTables” (“Tables”, incorporated in Sch. I of the Guidelines) prescribe the amount of support to which a child is entitled on the basis ofthe income of the payer parent and the number of children supported.

Because the Guidelines determine the amount of child support byreference to the payor parent’s actual income, an accurate assessment of that income is imperative. To this effect, the Guidelines imposean obligation of disclosure on both the applicant and respondent of a child support order (s. 21). [51] These Guidelines were not “a complete break from the past” (D.B.S., at para. 46). Rather, as the Report andRecommendations of the Committee indicates, this shift in the child support regime was developed with “[t]he best interest of thechildren being at the centre of this project” (p. 24).

Therefore, although the implementation of the Guidelines simplified thequantification of child support, it was not intended to displace the significance of the best interests of the child. [52] Similarly, in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, this Court observed that the underlyingprinciple of the Guidelines is a financial obligation resting jointly on the spouses (see Contino, at para. 32, citing Divorce Act, s.26.1(2)).

The Guidelines thus helped shift the focus from the child’s needs to their entitlement to support, embracing in the process theprinciples of fairness and flexibility, balanced with consistency and efficiency, all in the child’s best interests. While the courts’ fact-specific inquiries and judicial discretion provide fairness and flexibility, the Tables provide certainty by determining how much childsupport a recipient parent is entitled to, based solely on the payor parent’s income and the number of children supported (unless the payorparent’s annual income surpasses $150,000).

In addition to applying to all divorced couples, the Guidelines and Tables have also beenadopted or slightly modified to apply to unmarried separated parents in nine provinces, including British Columbia. C.

Core Principles of British Columbia Laws on Child Support [53] Both the British Columbia Family Law Act and its predecessor, the Family Relations Act, R.S.B.C. 1996, c. 128,embody this same understanding of the nature of child support, animated by the best interests of the child. [54] The provincial regime under the Family Relations Act provided statutory recognition that each parent “is responsibleand liable for the reasonable and necessary support and maintenance of the child” (s. 88(1)).

Courts in British Columbia have alsoembraced the fundamental principles under the Family Relations Act that “child support is a right of the child” and “[t]he duty to supportchildren is a duty owed to the children and not to the custodial parent” (Innes v. Van Den Ende (1993), (BC CA), 83B.C.L.R. (2d) 273 (C.A.), at para. 11, quoting Dickson v. Dickson (1987), (BC CA), 21 B.C.L.R. (2d) 69 (C.A.), at pp.90-91; S. (L.) v. P. (E.), 1999 BCCA 393, 67 B.C.L.R. (3d) 254, at para. 58). [55] After the adoption of the Guidelines in 1997, the Legislative Assembly enacted amendments to the Family RelationsAct.

Referring to those amendments, the Attorney General affirmed that: The amendments are consistent with changes to the federal Divorce Act that came into effect on May 1, 1997. This will ensure thatparents’ obligations to support their children are consistent under federal and provincial legislation, so that children will be treatedequally regardless of whether their parents

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