“Bruce’s specific objection to the amended pleading in this case is that the claim for retroactive child support for NRL is “untenable in law” because NRL is no longer a “child of the marriage”. It is therefore necessary to briefly review the legal principles relevant to this issue.
Section 2(1) of the Divorce Act defines a “child of the marriage” as follows:
a child of two spouses or former spouses, who, at the material time,
(a) is under the age of majority and who is not withdrawn from their charge, or
(b) 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 necessary necessaries of life. (emphasis added)
In DBS v. SRG, the Supreme Court of Canada determined that the “material time” for purposes of seeking retroactive child support awards is the time at which the application is made. In other words, DBS holds that courts have jurisdiction to make original orders for child support only where, at the time of the application, the child beneficiary is still a “child of the marriage”. The Supreme Court observed that limiting jurisdiction to make child support orders in this manner reflects the principle that adults (i.e. those over the age of majority and not dependent) are not the type of persons for whom Parliament envisaged child support orders being made. In the Court’s view, child support is for children of the marriage, not adults who used to have that status.
In its recent decision in Michel v. Graydon, the Supreme Court expressed a willingness to reconsider this aspect of DBS. In her concurring judgement in Michel v. Graydon, Martin J. expressed the view that the “jurisdictional bar” on original orders for child support established by DBS has led to divided and confused jurisprudence and undermined the Divorce Act’s objectives of clarity, certainty and consistency. In Martin J.’s view, the “deleterious effects on access to justice and the relationship between child support underpayment and poverty canvassed above reveal the profound unfairness visited upon children and their custodians by this bar.”
The majority judgement of Brown J. recognized that unjust results can flow from imposing impediments that prevent otherwise deserving parents from seeking retroactive child support. He therefore agreed with Martin J. that the Court’s interpretation in DBS of the “material time” for purposes of determining jurisdiction to order retroactive child support under the Divorce Act might merit reconsideration. However Brown J. was also the view that deliberations on this issue would benefit from fulsome submissions directly on point. Because the appeal in Michel v. Graydon could be decided on the basis of provincial legislation alone, Brown J. found it unnecessary to undertake any such reconsideration of DBS at this time.
In the result, while the jurisdictional limitation on ordering retroactive child support for adult children established in DBS has by no means been overruled, all nine judges of the Supreme Court of Canada have expressed doubts over the correctness of the limitation and indicated an openness to reconsidering the issue. Thus, in light of Michel and Graydon, there are now serious questions as to whether DBS’s holding that child support can only be ordered for support beneficiaries who are still “children of the marriage” remains settled law.”