Following a couple’s separation, there is no greater certainty than a parent’s obligation to support their children. But what happens if, over an extended period of time, a parent doesn’t meet that obligation? Can the other parent make a retroactive claim for child support? If so, should the claim be restricted in any way, including whether the child is now an adult? Those controversial questions were squarely addressed by Court of Appeal of Alberta in a decision released at the beginning of November.

In that case, the parents divorced in 2004, at which time an order was made pursuant to which the three children resided with the mother. In 2009, the parties entered into an agreement which set the father’s child-support obligation at $2,563 per month, based on his annual income of approximately $140,000. That agreement also required the parties to exchange financial disclosure regarding their income annually.

As time ticked by, the father’s income increased substantially. By 2014 the father’s income was $256,686 and in 2015, his income reached $317,087, more than double the income on which child support was based. Neither party provided income disclosure to the other and the father’s child support payments continued to be based on his income of $140,000.

In 2016, the mother’s lawyer requested financial disclosure from the father. The father’s response was slow and incomplete. Against the backdrop of the father’s delay, in October 2017, some 18 months later, the mother commenced court proceedings wherein she sought a variation of child support retroactive to 2010.By 2018, the father’s disclosure remained incomplete, although it was sufficient to determine his income for support purposes and a trial proceeded.

At trial, it was the father’s position that, by the time the mother commenced court proceedings, two of the three children were no longer children for whom support was payable and the mother’s claim for retroactive support must fail on that basis alone. Essentially, it was the father’s position that the court did not have jurisdiction to make an order for child support for the two children who were over 18 years of age and either working full-time or independently able to “obtain the necessaries of life.”

The trial judge agreed with the father, finding that the two older children were no longer “children of the marriage” under the federal Divorce Act, and awarded retroactive child support for only one child, who was under the age of 18. The mother appealed and a majority of the three-judge panel of the Court of Appeal of Alberta agreed with the mother. In short, the majority decided that a court can retroactively vary child support for the two older children notwithstanding both of them were over 18.

In reaching her decision, Madam Justice Dawn Pentelechuk of the appellate court discussed the unlikely ability of children who turn 18 to support themselves. “There are few children, whether or not from separated or divorced families, who are economically self-sufficient on their 18th or 19th birthday or in the month they complete high school.” Justice Pentelechuk acknowledged the trial judge’s decision by noting that “unless a child is entering post-secondary studies, the common reality is child support obligations of the payor parent often cease on or close to these dates.”

That common reality is grounded in a 2006 decision of the Supreme Court of Canada, from which Justice Pentelechuk cited: “an adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status.”

In support of her decision, Justice Pentelechuk points to Statistics Canada census data that shows that “while more young adults may be moving back home than in the past, an even greater proportion are staying in their parents’ home longer. The percentage of young adults aged 20 to 34 living with at least one parent increased from 33.1 per cent in 2006 to 34.7 per cent in 2016. For those aged 20 to 24, the proportion co-residing with their parents rose from 58.3 per cent in 2001 to 62.6 per cent in 2016. For those aged 20 to 24 and living with their parents in 2011, 69 per cent reported they had never left their parents’ home.”

Building upon that data, Justice Pentelechuk concludes that “the statistical trend of children remaining with their parents for longer and longer periods” is a “cogent and compelling reason why it is not necessary to establish that the children remain children of the marriage at the time a retroactive variation application is made. If inadequate support has been paid, the child loses, the recipient parent loses, or both lose.”

The extent to which Justice Pentelechuk’s decision will open the door to a shift in the common reality as a consequence of changing familial patterns and constructs remains to be seen. As may be expected, the decision is not without its controversy. In fact, the remaining two judges of the panel hearing the appeal specifically disagreed with Justice Pentelechuk’s reasoning, although one agreed with the result.

In an unrelated case, on November 14th, the Supreme Court of Canada allowed an appeal in respect of a retroactive claim to vary child support. While the reasons have yet to be released, it is anticipated that the Supreme Court will bring clarity to the circumstances in which a claim to retroactively vary child support is permissible after a child is no longer a child of the marriage.

This article was originally published in the National Post.