Case information

Family law — Child support — Retroactive — Whether post-Michel v. Graydon, the interpretation of the Divorce Act in D.B.S. v. S.R.G. should be reconsidered to clarify the law on whether there is a jurisdictional bar in an originating application for retroactive child support brought either under the Divorce Act or the corresponding provincial family law legislation.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant Ms. Deng and the respondent Mr. Zhang married in 1995. The applicant Ms. Zhang is their adult daughter. Mr. Zhang and Ms. Deng immigrated to Canada from China in 1996 and formally separated in January 2004. At the time of their separation, the parties signed a simple one-page separation agreement providing that their property was divided effective the date of separation and that Mr. Zhang would pay $800 per month to Ms. Deng in spousal support. Neither party received legal advice prior to signing the agreement. Mr. Zhang’s initial notice of family claim was filed in July 2018. It sought an order of divorce and division of family property including the sale proceeds he alleged could be traced to joint family property. Ms. Deng counterclaimed for retroactive and prospective spousal and child support together with extraordinary expenses for Ms. Zhang, then 19 years old.

The trial judge concluded that a presumptive equal division of family property was appropriate. He analyzed the real estate transactions and concluded that Ms. Deng had received approximately $476,000 from the sale and refinancing of family property, of which Mr. Zhang was entitled to half. With respect to Ms. Deng’s counterclaim, the trial judge awarded Ms. Deng $123,595.08 in retroactive child support and $34,681.50 in retroactive spousal support. These amounts were offset against the amount owing following the division of property and it was therefore concluded that Ms. Deng owed Mr. Zhang $79,723. The Court of Appeal dismissed Ms. Deng’s appeal and allowed Mr. Zhang’s cross-appeal in part. The order for retroactive child support in the amount of $123,595.08 was set aside and the entire issue of retroactive child support was remitted to the trial judge for determination.