Court overturns lifetime of retroactive child support owed by absent Duncan dad

Appeal reduces payments to three years in Vancouver Island case, circumstances ruled not appropriate to precedent-setting award

You aren’t responsible for a lifetime of child support payments if you didn’t take active steps to avoid those payments, the B.C. Court of Appeal has ruled.

The appeal court has upheld a lower court decision that a Duncan man will not have to pay $70,320 in retroactive child support for the care of his now 20-year-old daughter — the amount the original trial judge calculated as what would have been payable between 1995 and 2013 under child support guidelines.

Instead, in a ruling released June 15 in Victoria, the court confirmed an order that the man pay the equivalent of monthly support payments of $497 retroactive to October 2013, as well as college education expenses of $7,109.

The child was born in 1995 after a relationship of less than a year was ended by the father when he discovered the mother was pregnant.

In what the court called an “unusual” twist, the mother did not request support, nor have any contact with the father, despite the fact she knew where he lived and worked. She finally approached the father for support at her daughter’s urging when the daughter was 18. The father agreed to provide it, but a dispute over payment ended in court.

In the initial trial, the mother claimed the father’s decision to leave devastated and humiliated her, making her emotionally incapable of pursuing support.

The trial judge agreed that was a reasonable excuse for her inaction and found the father’s conduct “at the high end of blameworthiness” for completely ignoring his daughter prior to being approached.

The judge ordered retroactive support payments, dating back to the girl’s birth, adding any financial hardship the order may cause the father was justified by the fact he had brought the situation upon himself.

In July of 2015, a B.C. Supreme Court justice overturned that decision on appeal on the grounds the original order gave too much weight to the mother’s reasons for not pursuing support earlier, failed to recognize the hardship it would cause the father, and was inconsistent with an existing guideline for retroactive pay of three years.

The court also found that no consideration had been given to the mother’s responsibility for providing for her daughter by pursuing child support earlier.

The Court of Appeal unanimously agreed with the Supreme Court finding.

Justice Mary Newbury found the initial ruling that the father doing nothing for 18 years amounted to high-end blameworthiness was a misapprehension of relevant law.

“Active deception, hiding from the payee parent, creating false records of income – these are all far worse than (the father’s) conduct,” Newbury wrote.

She also found no record of a case — even ones of more egregious misconduct — that sanctioned an award going back further than seven years.

“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.”

Follow me on Twitter @JohnMcKinleyBP

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