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Raji Mangat is the executive director of the West Coast Legal Education and Action Fund (West Coast LEAF), an organization that uses legal action to fight gender-based discrimination. Jennifer Klinck and Joshua Sealy-Harrington represented West Coast LEAF in their intervention before the Supreme Court of Canada in Michel v Graydon.

On Friday, the Supreme Court of Canada released its decision in Michel v. Graydon. The Court held that parents cannot simply delay in meeting child-support obligations and then cancel those obligations once the children reach adulthood. While we welcome this decision as a step forward for family law, deeper systemic reforms are necessary to repair Canada’s broken child-support system.

Under that system, primary caregivers – vastly more often mothers – must apply to the court for child support, and then repeatedly return to court to ensure that support is paid. While courts recognize child support as the “right of the child,” our system puts the burden of making sure the money is collected entirely on the parent with the least economic stability, the least knowledge of fluctuations in the payor parent’s income and the least access to lawyers. Without significant reform, women and children – those most seriously harmed by unpaid child support – will continue to be impoverished by a system that overlooks their basic needs and lived experience.

The facts of Michel v. Graydon are all too common in child-support disputes, the overwhelming majority of which involve fathers underpaying mothers. After separation, the infant daughter lived full time with Danelle Michel. Over the following 11 years, Sean Graydon concealed significant increases to his income, which had substantially increased his child-support obligations. After a decade of delinquency and tens of thousands of dollars in unpaid child support, Mr. Graydon applied to have his child-support debt cancelled. On appeal, his long-standing child-support debts were cancelled because his daughter was now an adult, given that he had delayed paying for so long. Mr. Graydon further appealed to the Supreme Court of Canada and West Coast LEAF intervened to challenge the perverse incentive that rewards delinquency in child-support payment, calling for an approach to enforcing child-support debts that promotes gender justice.

Thankfully, the Supreme Court answered that call. The Court unanimously allowed Ms. Michel’s appeal. In so doing, all three opinions from the Court reflected many of the gender justice concerns raised by West Coast LEAF: that barriers to receiving child support disproportionately burden women; that the objectives of ensuring the payment of child support must be emphasized; that unpaid child support shifts the payor’s financial burden on to the recipient and the child; that payor parents benefit from unequal information as only they know their income, on which child support is based; that perverse incentives to avoid support obligations should be eliminated; and that the law should promote systemic incentives that favour child-support compliance.

But the decision in Michel is no panacea for Canada’s broken child-support system. It expects those with the least resources and information to take up the process of ensuring that the legal obligations owed to children are met. This is not the only option. There are many different approaches for enforcing child support that do not burden recipients with onerous enforcement procedures. In Alaska, child support is periodically updated with mandatory reporting, while in Australia and Britain, enforcement of support is run through regulatory bodies (like Canada’s CRA). Even better, in Sweden, child support is guaranteed by the state, while the government collects what it can from payor parents.

Any of these options would be better than Canada’s current approach to child support, which leaves billions of dollars in unpaid child support owing across the country. And, given that most recipient parents are mothers, and most children live with their mother postseparation, that unpaid support systemically impoverishes women and children throughout the country. Simply put, the economic destinies of women and children are joined. And those destinies are stifled under a child-support scheme that unduly burdens recipients with chasing after the essential support to which they are already legally entitled.

The COVID-19 pandemic has only magnified society’s sharp disparities and more clearly revealed how essential it is for systems to respond to people’s actual needs and circumstances. Mothers and children across Canada have waited long enough on fathers to pay child support, and long enough on our government to enforce it. Canada can and must do more. And it must do so now.

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