What happens when child support is not sought until long after the time it should have been paid?
This was the question at issue in the recent case of Brown v Kucher, 2016 BCCA 267, when Ms. Kucher sought child support from her ex-partner retroactive 19 years to the date of their daughter’s birth. Mr. Brown terminated their relationship less than one year into being together, after learning that Ms. Kucher was pregnant.
As a result, Ms. Kucher raised their daughter on her own from her date of her birth in 1995. In 2013, after finding her father on Facebook, their daughter convinced her mother that she should pursue retroactive child support from Mr. Brown.
At trial, the BC Provincial Court looked at the leading Canadian case of D.B.S. v S.R.G., 2006 SCC 37, and evaluated the four factors to be considered when a retroactive child support order is sought:
- Whether there is a reasonable excuse for why the order was not sought earlier;
- The conduct of the payor parent;
- The circumstances of the child; and
- Whether a retroactive award would cause hardship.
In applying these factors, the trial judge focused on evidence that Ms. Kucher was emotionally fragile, and that Mr. Brown’s abandonment of her and her unborn child justified her delay in applying for child support. Furthermore, the trial judge emphasized that Mr. Brown’s conduct was “at the high end of blameworthiness” because he “completely ignored” his obligation to his daughter and “lived his life free of any financial obligation to her for almost 19 years.” Consequently, the trial judge calculated the child support over all of the years of the child’s life, and set the award at a sum in excess of $70,000.
On Appeal to the BC Supreme Court
Mr. Brown appealed the trial judge’s decision to the BC Supreme Court, where it was overturned by Madam Justice Fisher. Specifically, Mr. Brown contended that the child support award should be retroactive only to the date of effective notice (when Ms. Kucher commenced the proceeding), which was October 23, 2013.
Madam Justice Fisher’s assessment of the four factors from D.B.S. differed from that of the trial judge. Of note, she stressed that Mr. Brown had not used any “informational advantage” or concealed anything from Ms. Kucher. The trial judge had accorded far too much deference to Ms. Kucher’s reasons for her delay in applying, and improperly assessed Mr. Brown’s inaction as blameworthy conduct that wholly deprived him of any expectation of certainty. Madam Justice Fisher found that the trial judge erred in principle by considering Mr. Brown’s blameworthy conduct in isolation rather than taking a “holistic view” of the case and its facts. Specifically, the trial judge failed to consider extent the of hardship on Mr. Brown to order retroactive payment of such a large sum, as well as that it was Ms. Kucher’s responsibility to ensure that the child received proper support through the years.
On Further Appeal to the BC Court of Appeal
Ms. Kucher then appealed the BC Supreme Court decision to the BC Court of Appeal. The Court of Appeal upheld Madam Justice Fisher’s decision. The three-judge panel highlighted the error in logic and in law, for the trial judge to accept that Ms. Kucher’s emotional fragility necessitated such a lengthy delay in seeking child support.
Even more significantly, in the Court’s view, was the trial judge’s improper characterization of Mr. Brown’s conduct. The Court held that the trial judge’s assertion that Mr. Brown ‘doing nothing’ for 18 years amounted to misconduct “at the high end of the scale of blameworthiness” constituted a misapprehension of the relevant law. There was no active deception at hand on the part of Mr. Brown. The Court noted that no precedent was provided for a retroactive child support award dating back as far 19 years, including cases where the payor’s misconduct was “active” and at the “high end of moral blameworthiness”.
In conclusion, Mr. Brown was required to pay retroactive child support back only to the date of effective notice, as well as monthly child support going forward.
Brown v Kucher elucidates the importance of seeking child support without delay to ensure that children receive the financial support they need. If you or someone you know is facing a child support issue, please contact one of our Vancouver or Langley family law lawyers.
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