The British Columbia Court of Appeal recently dealt with the issue of retroactive child support and delay in Brown v. Kucher, 2016 BCCA 267.
In that case, the parties’ short romantic relationship ended after the mother informed the father that she was pregnant. In 1995, the child was born and raised solely by the mother, without any assistance from the father. In 2013, 18 years later, the mother applied for retroactive child support from the father. At trial, the mother was successful, with the trial judge ordering the father to pay $70,320 in retroactive child support from the date of the child’s birth. In making his award, the trial judge found that the mother had a reasonable excuse for her delay in applying for support due to her emotional fragility, and that the father’s conduct was blameworthy, as he completely ignored his obligation to the child.
The case was appealed to the British Columbia Supreme Court (who reversed the trial judge’s decision) and then to the Court of Appeal. The Court of Appeal held that the trial judge’s conclusion that the mother’s emotional fragility precluded her from seeking financial assistance for 18 years was incorrect in law. The Court of Appeal went on to note that such a finding would have required expert evidence from a psychiatrist, especially in light of the evidence that the mother was a competent person who had sought and obtained child support from the fathers of her other children.
Further, the Court of Appeal found that the trial judge had misapprehended the law in characterizing the father doing nothing for 18 years as amounting to misconduct on the high end of the scale of blameworthiness. The Court of Appeal noted that other types of active misconduct were much worse, including active deception, hiding from the payee parent and creating false records of income.
Ultimately, the Court of Appeal upheld the Supreme Court’s decision, which ordered the father to pay retroactive support to October 2013, the date of “effective notice” of the child support application.