Once a court determines that a retroactive child support award should be ordered, it must then decide on the date of retroactivity; in other words, when does child support start given the circumstances? In Brown v. Kucher, 2016 BCCA 267, the Court of Appeal was tasked with ranking a payor parent’s conduct on a scale of blameworthiness to determine the date of retroactivity. The question was whether “doing nothing” for 18 years was so egregious as to justify the Provincial Court’s order of retroactive child support back 19 years to the child’s date of birth. The Court of Appeal was of the opinion that it was erroneous in law for the trial judge to rank the payor parent’s “waiting in the weeds” as more egregious than active misconduct.

Generally speaking, when does child support start for retroactive orders?

As a general rule, the award should be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past: D.B.S. v. S.R.G., 2006 SCC 37 at para. 123. Effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair. However, where the payor parent has engaged in blameworthy conduct, the date when the circumstances changed materially will be the presumptive start date of the retroactive award.

Facts in Kucher v. Brown: “Waiting in the weeds” but not concealing whereabouts

Ms. Kucher and Mr. Brown had a relationship for less than a year, which Mr. Brown terminated when Ms. Kutcher told him she was pregnant. His response was that he did not want the responsibility of a child at that time. He already had two daughters and Ms. Kucher had three sons. There was no further direct contact between the parties between 1995 and the date the application for child support was made in 2013. Ms. Kucher raised C.K. herself without assistance from Mr. Brown. He did not offer any and she did not seek it. He made no effort to conceal his whereabouts over the 19-year period, but simply “waited in the weeds.”

Ms. Kucher testified that she was traumatized by Mr. Brown’s walking out and that she did not have the “emotional means” to pursue Mr. Brown for support, even though she knew where he lived and worked and even knew some of his family members. She did not make any effort to find him until C.K. found her father on Facebook and told Ms. Kucher her father should be made to live up to his responsibilities.

For his part, Mr. Brown earned a moderate income over the years, averaging $33,000 per year. At the time of trial he was 60 years old and earning about $54,000 per year. He owned a house in Duncan in which he had equity of some $60,000.

Provincial Court orders retroactive child support for 18 years prior to date of notice

The trial judge awarded retroactive child support to Ms. Kucher in the amount of $70,320, being the sum of child support that would have been payable between 1995 and 2013 under the Child Support Guidelines in respect of C.K., who was almost 19 years old at the time of trial. In reaching that decision, the trial judge considered the four factors established in D.B.S., namely:

  1. Whether there is a reasonable excuse for why the order was not sought earlier;
  2. The conduct of the payor parent;
  3. The circumstances of the child; and
  4. Whether a retroactive award would cause hardship.

While the trial judge found support for a retroactive award under all four factors, the crux of this case lies in the second factor. The trial judge found that Mr. Brown’s conduct was “at the high end of blameworthiness” because he had “completely ignored” his obligation to C.K. and “lived his life free of any financial obligation to her for almost 19 years.” The trial judge acknowledged that a retroactive award would be a hardship for him but was of the opinion that it was one he brought upon himself by this blameworthy conduct. On the issue of “when does child support start”, the trial judge concluded that the date of C.K.’s birth was the date of substantial change of circumstances and again declared that Mr. Brown’s total failure to provide child support was “blameworthy conduct of a very high order.”

On appeal: Inaction of this type not at high end of scale of blameworthiness

Mr. Brown appealed to the Supreme Court (Brown v. Kucher, 2015 BCSC 1258), where Fisher J. held it was an error of law for the trial judge to conclude that Mr. Brown’s inaction was at the high end of the scale of blameworthiness:

[49]      Here, in finding the blameworthy conduct to be at the high end of the scale, the trial judge did not take into account the fact that Mr. Brown did not do anything to lull Ms. Kucher into believing that he was meeting his obligations. Although Ms. Kucher sought Mr. Brown’s involvement when she became pregnant, once he left she never took the initiative to seek support from him until CK was 18 years old. Even then, the suggestion that this be done came from CK. And when Ms. Kucher finally sought his support, Mr. Brown agreed. Not only did he begin paying Guidelines support in January 2014, but he also committed to paying for CK’s education costs.

Thus, while Fisher J. concluded that Mr. Brown’s conduct was indeed blameworthy, it was not properly characterized at the high end of the scale and it was not of a magnitude to justify a support award back-dated for 18 years. It could not be said that Mr. Brown used an informational advantage at the time of C.K.’s birth, as there was no evidence that he concealed anything from Ms. Kucher. In the result, Fisher J. ordered that Mr. Brown pay guideline child support for C.K. retroactive to October 23, 2013 (the date of both formal and effective notice); all ongoing education expenses for C.K. in respect of her attendance at Camosun College; and prospective support at $479 per month.

Court of Appeal: “Active” misconduct is more blameworthy

The Court of Appeal agreed with Fisher J. and dismissed Ms. Kucher’s appeal, commenting on the characterization of misconduct on the scale of blameworthiness and the unprecedented back-dating of the award for 18 years as follows (emphasis added):

[31]        It is because of the trial judge’s characterization of Mr. Brown’s conduct, however, that this appeal must in my view fail. The Court’s ruling that Mr. Brown’s ‘doing nothing’ for 18 years amounted to misconduct “at the high end of the scale of blameworthiness” constitutes in my respectful opinion a misapprehension of the relevant law. The authorities before the Court illustrated various other types of active misconduct that rank far worse on the scale of blameworthiness – active deception, hiding from the payee parent, creating false records of income – these are all far worse than Mr. Brown’s conduct; yet Mr. Horn was not able to refer us to any case that sanctioned an award that went back anywhere near 19 years, even where the conduct was “active”. (The longest period was 7 years in Swiderski v. Dussault, 2009 BCCA 461, a case that is obviously distinguishable from this; see also DBS itself at para. 141.) In my opinion, it was erroneous in law for the trial judge to rank Mr. Brown’s ‘waiting in the weeds’ as more egregious than such active misconduct. Unfortunately, this error tainted the balance of the trial judge’s consideration of Mr. Brown’s financial circumstances and the final question of the appropriate date for the retroactive award. An award retroactive to a child’s birthdate might conceivably be appropriate where the payor’s conduct is at the high end of moral blameworthiness and where the child is considerably younger, but this was not such a case.

When does child support start? The take home point on the scale of blameworthy conduct

Once a court decides to make a retroactive child support award, the general rule is that the award will be retroactive to a date not more than three years before formal notice was given to the payor parent. However, where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award. On the scale of blameworthiness, active misconduct (such as deception, hiding from the payee parent, and creating false records of income) is more egregious than inactivity or “waiting in the weeds”, particularly where the payor parent has done nothing to conceal themselves or use any informational advantage.