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Michel v Graydon (2020 SCC 24)

Case at a glance
CaseMichel v Graydon
Citation2020 SCC 24
CourtSupreme Court of Canada
Year2020
TopicChild Support
Central questionCan you claim retroactive child support after the child turns 19?

Key takeaways {#takeaways}

  • In BC, a court can change past child support even after the child has become an adult.
  • Section 152 of the Family Law Act allows retroactive variation even where the support order has expired.
  • Hiding income is blameworthy conduct; an award can reach back to when the underpayment started.

Michel v Graydon at a glance {#summary}

Yes — in British Columbia you can. In Michel v Graydon, 2020 SCC 24, the Supreme Court of Canada held that section 152 of the Family Law Act lets a court retroactively change a child support order even though the child is now an adult and the order has expired.

Most parents assume that once a child grows up, unpaid child support is gone for good. Michel v Graydon broke that assumption. Sean Graydon paid $341 a month based on a declared income of $39,832 — and understated his real income for eleven years. By the time the truth came out, his daughter was an adult. The Supreme Court of Canada reinstated a $23,000 retroactive award. For separating parents in BC, the case turns unpaid support into a debt that outlives childhood.

The facts {#facts}

Danelle Michel and Sean Graydon lived in a common-law relationship in British Columbia. Their daughter, A.G., was born in December 1991. The couple separated in 1994, and A.G. lived with her mother.

Mr. Graydon agreed to pay child support of $341 per month, based on an annual income he stated as $39,832. A consent order made on March 29, 2001 formalized that amount. In fact, he earned $45,580 in 2001, and — except in 2004 — his real income stayed above his disclosed income every year until a court order ended his support obligation effective April 30, 2012 (paras 3–4).

While A.G. was growing up, Ms. Michel depended on income assistance and disability benefits. As a condition of that assistance, she had to assign her right to child support to the provincial government under the Employment and Assistance Act. The government never applied to review the support amount (para 5).

In January 2015 — with A.G. now an adult and the order expired — Ms. Michel applied under section 152 of the Family Law Act to retroactively vary support for the period from April 2001 to April 2012, based on Mr. Graydon's actual income. Judge Smith of the BC Provincial Court granted the application and ordered $23,000 in retroactive support, half payable to Ms. Michel and half to A.G. He found that A.G. had suffered from the underpayment: she could not attend the post-secondary program she wanted (paras 1, 6).

The BC Supreme Court reversed that order (2017 BCSC 887), and the BC Court of Appeal dismissed Ms. Michel's further appeal (2018 BCCA 449), applying its own decision in Dring v Gheyle, 2018 BCCA 435. Both courts read the Supreme Court of Canada's earlier decision in D.B.S. v S.R.G., 2006 SCC 37, as barring any child support application made after the beneficiary was no longer a "child" (paras 7–8).

The legal issues {#issues}

The appeal raised two questions:

  1. Authority. Does section 152 of the Family Law Act give a court power to vary a child support order after the order has expired and after the beneficiary is no longer a "child" as the Act defines that term?
  2. Discretion. If the power exists, was a retroactive award appropriate on these facts, applying the factors from D.B.S.?

What the court decided {#decision}

The Supreme Court of Canada was unanimous: nine judges allowed the appeal and reinstated the Provincial Court's $23,000 order. The Court ruled from the bench on November 14, 2019 and issued written reasons on September 18, 2020.

Justice Brown wrote the lead reasons (paras 1–37), joined by Justices Moldaver, Côté, Rowe and Kasirer. He held that section 152 authorizes a court to retroactively vary a child support order regardless of whether the beneficiary is still a "child" and regardless of whether the order has expired (para 9). His reasoning:

  • D.B.S. decided a different question. D.B.S. concerned original applications under section 15.1 of the federal Divorce Act, which is tied to the defined term "child of the marriage." It did not decide whether variation applications — under section 17 of the Divorce Act or under provincial law — face the same limit (paras 12–15). Provinces are free to take a different approach, and where an application is brought under provincial legislation, that legislation governs (para 16).
  • The text of section 152 contains no bar. Section 152(1) says a court "may change, suspend or terminate an order respecting child support," prospectively or retroactively. Unlike other Family Law Act provisions that spell out who may apply or impose time limits — and unlike the older Family Relations Act it replaced — section 152 imposes no condition tied to the child's dependent status or to the order still being in force (paras 19–27).
  • Courts should not invent jurisdictional barriers. Reading limits into section 152 would let a parent profit from hiding income and would reward payors who wait out the clock (paras 17, 28).

Applying the D.B.S. factors, Justice Brown upheld every finding below: Mr. Graydon's eleven years of inaccurate income disclosure was blameworthy conduct; Ms. Michel's delay was reasonable because she had suffered a severe injury and her support rights were assigned to the government; A.G. experienced hardship; and Mr. Graydon could pay without hardship. Because the conduct was blameworthy, the date he received notice of the claim did not matter — the award properly reached back to the 2001 consent order (paras 30–36).

Justice Martin, joined by Chief Justice Wagner, agreed and added extensive concurring reasons (paras 38–135). She framed claims like this one as "historical child support" — money owed for a period when the person did qualify as a child — and stressed that the debt does not evaporate when the child turns 19. She emphasized access to justice, the best interests of the child, and the link between unpaid support, child poverty and the poverty of mothers, who still shoulder most child-care responsibility. Justice Abella, joined by Justice Karakatsanis, agreed with both sets of reasons (para 136).

Where the law stands now. Michel v Graydon remains the governing authority for retroactive child support under BC's Family Law Act, Part 7 (see ss 146, 147 and 152) — the current section 152 on BC Laws matches the text the Court interpreted (verified 6 Aug 2026). For parents whose support falls under the federal Divorce Act, the Supreme Court of Canada built on Michel the following year in Colucci v Colucci, 2021 SCC 24, which sets out the framework for retroactively increasing or decreasing support under section 17 of that Act and repeats Michel's core message: full, honest and timely income disclosure is the foundation of the child support system.

Can you claim retroactive child support after the child turns 19? {#the-test}

In BC, the answer has two steps.

Step 1: Which law applies, and does it allow the claim? If your support order was made under the Family Law Act — which covers unmarried and common-law parents, and married parents who have not gone through the Divorce Act — Michel v Graydon says yes: a court can hear your application even though your child is now an adult and the order has ended. Age is not a barrier to the application itself.

If your support order was made under the federal Divorce Act, the route is a variation application under section 17, and the framework comes from Colucci v Colucci. Michel confirms that D.B.S. only restricted original first-time applications under section 15.1 of the Divorce Act — it never decided the variation question. Which statute governs your situation matters, so this is worth checking early. See our overview of divorce in BC.

Step 2: Should the court make the award? Getting through the door is not the same as winning. The court then weighs four factors — the reason for the delay, the payor's conduct, the child's circumstances, and hardship — set out in the framework below. There is no automatic result. The court looks at the whole picture (para 29; Martin J at paras 111–26).

The framework {#numbers}

The four factors come from D.B.S. and were applied and refined in Michel:

Factor What the court asks How it played out in Michel
Reason for the delay Is the claimant's explanation understandable in their real circumstances — not just technically excusable? (Martin J, paras 111–26) Ms. Michel had suffered a severe injury, and her support rights were assigned to the government while she received assistance. Her delay was reasonable (para 35).
Payor's conduct Did the payor put their own interests above the child's right to proper support — most commonly, by failing to disclose income? Eleven years of understated income was blameworthy conduct. That also removed any need to protect the payor's certainty about his obligations (para 34).
Child's circumstances Did the child go without? Past hardship, or present need, supports an award and can extend how far back it goes. A.G. experienced hardship growing up and could not attend her chosen post-secondary program (paras 6, 30).
Hardship from the award Would paying now cause the payor undue hardship — weighed against the hardship to the child and recipient of never being paid? (Martin J, paras 124-25) The hearing judge found Mr. Graydon would not experience hardship from the award (para 30).

On timing: where the payor's conduct is blameworthy, the date the payor received notice of the claim is not relevant, and the award can reach back to when the underpayment began. In Michel, that meant back to the March 2001 consent order — an eleven-year reach (para 36).

What this means if you're separating in Surrey {#bc-impact}

Many Surrey families are in exactly the legal position the Michels were in: common-law or unmarried parents whose support obligations fall under the Family Law Act, with orders or agreements made in the Provincial Court. Michel v Graydon speaks directly to them.

If you received support that was set on the other parent's understated income, discovering the truth years later — even after your child is grown — does not automatically close the courtroom door. Section 152(2)(c) specifically lets a court act on evidence of a lack of financial disclosure discovered after the last order was made.

If you were on income or disability assistance and had to assign your support rights to the ministry, Michel shows that the government's inaction during that period is not held against you. It formed part of why Ms. Michel's delay was found reasonable.

If you are the paying parent, the message is equally direct: support tracks your actual income, and the duty of full and honest disclosure continues. Underpaying quietly does not make the difference disappear — it accumulates as a debt that can be claimed later, with your conduct front and centre in the analysis. Keeping your support accurate as your income changes, and papering changes properly, is the protection. Learn more about child support in BC and how separation agreements handle disclosure.

Nothing in Michel makes any particular outcome certain. The court's discretion at step two is real, and delay can still count against a claim on other facts.

How a lawyer uses Michel {#in-practice}

Acting for a recipient parent or an adult child. Michel is the answer to the "too late" objection under the Family Law Act. A lawyer will identify the governing statute, gather the payor's actual income history (tax returns, notices of assessment, disclosure demands), map the gap between what was paid and what the Federal Child Support Guidelines required, and build the four-factor case — especially an honest, well-documented explanation for the delay. Note that the award can be paid to the parent, the now-adult child, or both: in Michel it was split equally, and the Court said judges should be flexible about apportionment.

Acting for a payor. Michel reframes the defence. Arguing the court has no power to hear the claim is now a dead end in FLA cases; the realistic ground is the discretionary stage — showing the income record was accurately disclosed, the delay is unexplained on the facts, or a retroactive award would cause genuine hardship. Michel also underlines preventive advice: disclose income changes as they happen, and terminate or adjust orders through proper channels rather than simply stopping payment.

In negotiation and mediation. Because both sides now know an FLA claim survives the child's nineteenth birthday, historical support has a clearer settlement value. That shapes family mediation and the disclosure warranties lawyers write into agreements. For more commentaries in this series, see our case studies.

Frequently asked questions {#faq}

How far back can a retroactive child support claim go?

There is no fixed cut-off in the Family Law Act. Where the payor engaged in blameworthy conduct — such as failing to disclose their real income — the award can reach back to when the underpayment began, and the date the payor learned of the claim is not relevant. In Michel, the award covered April 2001 to April 2012.

Does Michel v Graydon apply if we were married and divorced?

Not directly. Michel interprets BC's Family Law Act. If your support order was made under the federal Divorce Act, retroactive changes run through section 17 of that Act and the framework in Colucci v Colucci, 2021 SCC 24, which draws heavily on Michel. Which statute applies to you is a threshold question worth getting advice on.

Who gets the money if the child is an adult now?

The court can direct payment to the recipient parent, to the adult child, or to both, depending on who bore the hardship. In Michel, the $23,000 was split equally between mother and daughter. The Supreme Court said judges should be flexible, and should respect an agreement between the parent and the child about how to divide it.

References {#references}

Read the decision itself: Michel v Graydon, 2020 SCC 24