In early February, the Supreme Court of Canada declined to hear the appeal of a B.C. lower court decision dealing with retroactive child support. The decision is Brown v. Kucher 2016 BCCA 456.
The facts of this case are that the parents had been together for less than a year when the father terminated the relationship with the mother when she told him that she was pregnant, stating that he did not want the responsibility of a child at the time. Both parties already had children from previous relationships. There was no further direct contact between the parties until the mother made an application for child support in 2013 when their child was 18 years of age.
Originally, the Provincial Court judge ordered that the father pay retroactive child support in the amount of $70,328. This was the sum that the judge calculated would have been payable between 1995 and 2013 and accounted for 18 years of unpaid child support.
The father appealed the child support order to the B.C. Supreme Court where the Judge found that the trial judge erred in her analysis in that she:
“Accorded far too much deference to Ms. Kucher’s reasons for the considerable delay in making her application, improperly assessed Mr. Brown’s inaction as blameworthy conduct that wholly deprived him of any expectation of certainly failed to consider what benefits C.K. would receive from such an award at her age now and failed to properly consider the hardship caused by a retroactive award of over 18 years, given Mr. Brown’s financial position both past and present. The evidence in this case falls far short of supporting a retroactive award of this length.”
At para. 20 of the decision, 2015 BCSC 1258.
The decision was made to order retroactive child support going back three years prior to the date of both formal and effective notice as she found that this would impose less of a hardship on the father and was appropriate given the facts of the case. The father had also agreed to pay for the child’s full post-secondary education costs going forward.
The Court of Appeal has affirmed this decision of the B.C. Supreme Court judge and the Supreme Court of Canada did not give leave to hear the appeal so this is a final decision in this case.
The important point to take from this case is that if you are entitled to receive child support for the support of a child you ought not to sit on your hands and do nothing. There is an obligation upon you to seek relief from the Court if that support is not provided and to give the other parent notice that you are seeking child support as early as possible. If you do nothing and do not pursue the child support that your child is entitled to, a Court is not likely to order retroactive support going back more than three years except in the rarest of circumstances.
