Michel v. Graydon

Michel v. Graydon
Collection
Supreme Court Judgments
Date
2020-09-18
Neutral citation
2020 SCC 24
Report
[2020] 2 SCR 763
Case number
38498
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
British Columbia
Subjects
Family law
Notes
Case in Brief SCC Case Information
Decision Content
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 those of 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 on their merits. Judges will have to first determine whether there is a debt outstanding and will then have to consider what would be a fair award under the D.B.S. factors: the recipient parent’s reason for delaying their application for child support, the conduct of the payor parent, the circumstances of the child, and the hardship the award creates for the payor parent. Under the first factor, there are many reasons why even a person in need might delay making an application. There is a growing body of jurisprudence and social science findings demonstrating that, sometimes, parents delay their application for child support to protect their children from harm or because making an application is impracticable or inaccessible in their circumstances. The focus should be on whether the reason provided is understandable rather than whether there is a reasonable excuse, taking into account a generous appreciation of the social context in which 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 blameworthy conduct, 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 root cause of a delayed application. The primary focus needs to be on the payor’s actions and their consequences — the payor’s subjective intention is rarely relevant. The presence of blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Regarding the third factor, a child’s needs may be relevant in awarding and calculating retroactive child support. If there has been hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award but also of extending the temporal reach of the award. However, this does not mean that any kind of hardship is a necessary antecedent to an award of retroactive child support. Furthermore, the fact that a child did not have to suffer hardship because of their custodial 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 be able to pay the award. If the award would cause the payor undue hardship, and if the other factors do not militate against it, this factor may weigh against an award or affect its temporal scope to achieve a fair result. While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid.
Regarding the date to which a child support award should be retroactive, the date of retroactivity should perhaps correspond to the date when the support ought to have been paid. Effective notice to the payor parent, the default date to which a child support award should be retroactive, is a broad concept which goes well beyond actual knowledge of a filed variation application. The distinct features of child support reduce somewhat the strength of concerns about lack of notice, and today, certainty for payor parents is provided by the Federal Child Support Tables and the payor parents’ knowledge that they are liable according to their actual income and will be held accountable 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 of fact and depending on whom the hardship — if there was any — was visited upon. Courts should be flexible when determining how to apportion the award between the recipient parent and the child beneficiary. However, there should be no general reluctance to put monies in the hands of the recipient parent. Where the recipient parent and child beneficiary agree on how the award should be divided, the court 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 adds important policy considerations.
Cases Cited
By Brown J.
Explained: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231; referred to: Dring v. Gheyle, 2018 BCCA 435, 17 B.C.L.R. (6th) 30; Colucci v. Colucci, 2017 ONCA 892, 138 O.R. (3d) 321; Brear v. Brear, 2019 ABCA 419, 97 Alta. L.R. (6th) 1; Moge v. Moge, [1992] 3 S.C.R. 813; Quinn v. Leathem, [1901] A.C. 495; Buckingham v. Buckingham, 2013 ABQB 155, 554 A.R. 256; de Rooy v. Bergstrom, 2010 BCCA 5, 4 B.C.L.R. (5th) 74; McDonald v. McDonald, 2008 BCSC 1203; Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295; Hickey v. Hickey, [1999] 2 S.C.R. 518; Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93; Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920.
By Martin J.
Explained: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231; referred to: Chartier v. Chartier, [1999] 1 S.C.R. 242; MacMinn v. MacMinn (1995), 174 A.R. 261; Poissant v. Barrette (1879), 3 L.N. 12; Paras v. Paras, [1971] 1 O.R. 130; Levesque v. Levesque (1994), 155 A.R. 26; Vincent v. Vincent (1995), 132 Nfld. & P.E.I.R. 181; Wright v. Wright (1996), 141 Sask. R. 44; Willick v. Willick, [1994] 3 S.C.R. 670; Cherry v. Cherry (1996), 24 B.C.L.R. (3d) 158; Wang v. Wang (1998), 58 B.C.L.R. (3d) 159; Childs v. Childs (1990), 107 N.B.R. (2d) 176; Francis v. Baker, [1999] 3 S.C.R. 250; D.B.S. v. S.R.G., 2005 ABCA 2, 361 A.R. 60; Contino v. Leonelli‑Contino, 2005 SCC 63, [2005] 3 S.C.R. 217; Innes v. Van Den Ende (1993), 83 B.C.L.R. (2d) 273; Dickson v. Dickson (1987), 21 B.C.L.R. (2d) 69; S. (L.) v. P. (E.), 1999 BCCA 393, 67 B.C.L.R. (3d) 254; de Rooy v. Bergstrom, 2010 BCCA 5, 4 B.C.L.R. (5th) 74; Dring v. Gheyle, 2018 BCCA 435, 17 B.C.L.R. (6th) 30; Daoust v. 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Statutes and Regulations Cited
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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 the retroactive award might entail (para. 133).
[11] Further, this Court cautioned that, when deciding an application for retroactive child support, a court must analyze the statutory scheme in which the application was brought (para. 54): “different policy choices made by the federal and provincial governments must be respected” (para. 55). While a “retroactive” child support award does not impose a new obligation but simply serves to enforce a past unfulfilled obligation, the mechanism for enforcing that obligation must be found in the governing legislative scheme. 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.
[12] In D.B.S., this Court examined the enforcement mechanism set out in s. 15.1 of the Divorce Act , which addresses original child support orders. This result follows from the language of s. 15.1, which permits a court to make an original order compelling child support payments only for “children of the marriage”. And s. 2 defines “child of the marriage” as “a child of two spouses or former spouses who, at the material time, is under the age of majority and who has not withdrawn from their charge, or is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.” The Court concluded in D.B.S. that the “material time” for retroactive child support awards is the time of 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 Act if 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 legislative schemes, or to variation applications under s. 17 of the Divorce Act (see Colucci v. Colucci, 2017 ONCA 892, 138 O.R. (3d) 321; Dring; B