Henderson Heinrichs LLP

Retroactive Child Support: 19 years or 3 years?

Since the Supreme Court of Canada decision in D.B.S. v. S.R.G. 2006 SCC 37, retroactive child support orders have been made pretty frequently against parents who have not been paying child support in accordance with the Federal Child Support Guidelines.  Although the court is permitted to go back as far as the Judge decides is appropriate, the general rule in the case law is that the court should not go back more than three years unless the payor parent has engaged in “blameworthy conduct.”  When the Judge finds that a payor has engaged in blameworthy conduct they can and will go back even further than three years.

A recent case decided by the BC court of appeal Brown v. Kucher, 2016 BCCA 267, does not change the law, but it looks at a pretty unusual set of facts.  In this case the parents lived together briefly and separated when the mother became pregnant.  The father told the mother that he wanted nothing to do with the child and he did not ever see or speak to the child, or contribute any child support.  When the child was 18 the mother pursued child support from the father for the first time.  The matter went to trial in Provincial Court when the child was 19 years old.

The Judge in Provincial Court ordered that the father pay 19 years of child support to the mother.  In doing so the Judge decided that the mere fact of not having paid child support was at the high end of blameworthy conduct.  The trial judge treated it as virtually unimportant that the mother had not at any prior point asked for child support from the father.

The father appealed to the BC Supreme Court.  On appeal at the Supreme Court the Judge decided to overturn the 19 years of retroactive support, awarding support to the date that the mother first asked for child support (in 2013) instead.  The mother then appealed to the BC Court of Appeal.  The Court of Appeal upheld the award of child support back to 2013, not for the child’s whole life.

While this particular set of facts is fairly uncommon, the case should serve as a stark reminder to payor parents that if you are not paying child support you could end up facing a hefty order for retroactive child support.  It should also serve as a reminder to parents who are eligible for child support that if they do not ask for it, they could lose it.

Joseph K. Broadhurst

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