“The issue on this appeal is whether the Superior Court has jurisdiction under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 17(1) to vary or discharge child support arrears where the application is brought after children are no longer “children of the marriage”.
That issue turns on how we are to interpret D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231. D.B.S. holds that a court does not have jurisdiction to entertain an original application for child support under s. 15.1(1) of the Divorce Act if the children are no longer “children of the marriage”. Does that mean that a court has no jurisdiction to vary an existing order for child support under s. 17(1) where the application to vary is made after children are no longer “children of the marriage”?
D.B.S. did not directly consider the point at issue on this appeal, namely, whether the court has jurisdiction to entertain an application to vary a child support order after the children are no longer “children of the marriage”. That issue falls to be determined under s. 17(1) of the Divorce Act…
One of the four cases decided together with D.B.S., Henry v. Henry, involved an application for retroactive variation of a child support order. At the time the notice of motion to vary was filed, the eldest child was no longer a child of the marriage. The Supreme Court held, at para. 150, that as the Notice to Disclose/Notice of Motion had been served while that child still was a child of the marriage, there was jurisdiction to entertain the application. That might suggest that there would have been no jurisdiction had the proceedings not been initiated while the child was still a child of the marriage, but the court did not directly consider or decide that point. In some cases, including the case at bar, trial level judges have held that D.B.S. governs and declined to vary child support orders after the children are no longer “children of the marriage”: see Giroux v. Mueller, 2013 ONSC 246 (CanLII), [2013] O.J. No. 90; Durso v. Mascherin, 2013 ONSC 6522 (CanLII), [2013] O.J. No. 4803; Noseworthy v. Noseworthy (2011), 313 Nfld. & P.E.I.R. 1 (N.L.S.C.); Boomhour v. Huskinson (2008), 2008 CanLII 26261 (ON SC), 54 R.F.L. (6th) 297 (Ont. Sup. Ct.); Krivanek v. Krivanek (2008), 2008 CanLII 44732 (ON SC), 56 R.F.L. (6th) 390 (Ont. Sup. Ct.); Haavisto v. Haavisto, 2008 SKQB 446 (CanLII), 325 Sask. R. 82; Millar v. Millar, 2007 SKQB 25 (CanLII), 292 Sask. R. 316.
There is, however, a strong line of conflicting authority supporting the view that given the different wording and purpose of s. 17(1), the test for jurisdiction to vary differs from the test for jurisdiction to make an original order under s. 15.1(1).
I am more persuaded by this line of authority. The leading and most carefully reasoned decision is Buckingham v. Buckingham, 2013 ABQB 155 (CanLII), 554 A.R. 256, where Strekaf J. concluded that both the wording of the statute and the principles of child support favoured distinguishing D.B.S. and interpreting s. 17(1) to allow a court to vary a child support order even though the children are no longer children of the marriage. The reasoning in Buckingham has been followed in a number of Ontario trial level decisions under the Divorce Act: Timmers v. Timmers, 2016 ONSC 306; Charron v. Dumais, 2016 ONSC 7491 (CanLII), [2016] O.J. No. 6235; Lemay c. Longpré, 2014 ONCS 5107 (CanLII), 2014 ONSC 5107, 68 R.F.L. (7th) 365. Courts have also retained jurisdiction on the basis that the payor parent’s deliberate absence or deception prevented the recipient from applying for a variation while the child was still a “child of the marriage”: George v. Gayed, 2014 ONSC 5360 (CanLII), [2014] O.J. No. 4383; Simone v. Herres, 2011 ONSC 1788 (CanLII), [2011] O.J. No. 1626.
I note as well that Ontario cases decided under the Family Law Act, R.S.O. 1990, c. F.3 hold that the court has jurisdiction to vary child support orders after retroactively after the children cease to be dependants, frequently citing Buckingham in support: see Surighina v. Surighin, 2017 ONCJ 384 (CanLII), [2017] O.J. No. 3022; Smith v. McQuinn, 2016 ONSC 7997 (CanLII), [2016] O.J. No. 6600; Meyer v. Content, 2014 ONSC 6001 (CanLII), [2014] O.J. No. 4992; Catena v. Catena, 2015 ONSC 3186 (CanLII), 61 R.F.L. (7th) 463. While not determinative of the point at issue on this appeal, there would be an additional unfairness if parents in precisely the same situation were permitted to vary Family Law Act orders, but not orders under the Divorce Act.
To date, where retroactive variation is sought when the children are no longer entitled to support, the courts have seen fit to entertain the request in the following situations, summarized in Smith v. McQuinn, at para. 59:
In summary, the case law has created exceptions to the DBS analysis in the following circumstances:
a) In variation proceedings where there is an existing order and an established support obligation under the Divorce Act, 1985, c. 3 (2nd Supp.) (“Divorce Act“);
b) In motion to change proceedings where there is an existing order and an established support obligation under the FLA; and
c) When there has been blameworthy conduct on behalf of a support payor that has contributed to the support recipient’s failure to bring the retroactive support claim within the requisite time.”