Brown v. Kucher, 2016 CarswellBC 1664 (B.C. C.A.)
In this case, the British Columbia Court of Appeal dismissed the mother’s appeal for retroactive child support back to the date of the child’s birth.
The parties had a short relationship that abruptly ended when the mother announced that she was pregnant. The child was born in 1995 and the mother raised the child without any assistance from the father. The mother experienced difficult financial circumstances but did not apply for child support until 2013 when the child was 18 years old.
At trial, the judge ordered the father to pay $70,320 in retroactive child support dating back to the child’s birth. The trial judge relied on the four factors considered under S. (D.B.) v. G. (S.R.), 31 R.F.L. (6th) 1 (S.C.C.) namely:
- 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 reaching the decision, the trial judge found that the mother had a reasonable excuse for delay in applying for support, namely that she was “traumatized” and emotionally fragile after the father walked out. The trial judge also found that the father’s conduct was “at the high end of moral blameworthiness” because he “ignored” his obligation to the child for almost 19 years.
The father appealed the trial judge’s decision to the Supreme Court of British Columbia. On appeal, Justice Fisher set aside the trial court’s decision. Justice Fisher held that child support should commence as of the date of notice and ordered that the father pay child support retroactive to 2013.
Justice Fisher noted that the trial judge gave too much deference to the mother’s reason for delay in seeking child support and incorrectly assessed that the father’s inaction amounted to blameworthy conduct. Instead, Justice Fisher acknowledged that the father did not actively evade his obligation to pay child support; therefore, the father’s inaction was not at the high end of the blameworthiness scale.
Ultimately, Justice Fisher set aside the trial-judge’s decision and ordered that the child support should commence on the date of effective notice.
The mother further appealed Justice Fisher’s decision to the British Columbia Court of Appeal.
On further appeal, the British Columbia Court of Appeal cited Hickey v. Hickey,  2 S.C.R. 518 (S.C.C.), where the Supreme Court of Canada held that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong.
Essentially, the Court indicated that affording a high level of deference to the lower courts tends to promote finality in family law litigation. To this end, the mother’s counsel argued that Justice Fisher should have deferred to the trial judge’s conclusions because the trial judge had the opportunity to hear the parties directly. Despite this, the Court maintained that the trial judge’s reasoning constituted an error in reason and in law.
The Court was not convinced of the trial judge’s finding that the mother was traumatized and emotionally fragile and thus unable to seek financial assistance from the father over a period of 18 years. Rather, the Court held that the trial judge did not establish that the mother was emotionally fragile for the entire period before the child turned 18 years old.
Further, the Court held that the father’s inaction did not amount to misconduct “at the high end of the scale of blameworthiness” and this was a misapprehension of the relevant law. The court emphasized that there are far worse actions on the scale of blameworthiness, such as creating false records of income, hiding from the payee parent, or actively deceiving the payee parent.
The Court noted that an award retroactive to a child’s birthdate might be more appropriate where the payer’s conduct is at the high end of moral blameworthiness and where the child is considerably younger, but this was not such a case.