Many of the child support cases we have reviewed for our blog deal with conflicts over child support orders that have already been made, or conflicts at the time of a couple’s divorce. However, a case working its way through the appeal process in British Columbia highlights a challenge that isn’t discussed as often, and is clearly still a contentious issue.

The claim

The child was raised by the mother. When he was 15-years-old the child connected with his father on social media. This led to the mother making an application for retroactive child support dating back to the child’s birth. She was successful in this application, but the father appealed. On appeal, the court reduced the period of time for which retroactive support would be applied. Rather than receive support dating back to the child’s birth, the mother was awarded support dating back only to the date the application was first made. The mother appealed this decision, but lost before the British Columbia Court of Appeal. She was also denied leave to appeal to the Supreme Court of Canada. Ultimately, she was faced with $13,000 in costs after being awarded only $11,000.

Constitutional Challenge

The mother’s attempts to find resolution through the courts did not stop there. On May 5, 2019 she was granted leave by the Court of Appeal for British Columbia to pursue a constitutional challenge to federal and provincial child support legislation. Her argument is that children have a constitutional right to support from both parents from the date of birth. She further argues that current legislation permits parents to avoid their child support opportunities, leaving children unable to realize their right to parental support.

The court reviewed the history of the litigation to this point and mentioned that it was not looking, at this time, to determine whether the mother’s application has merit. Instead, the court was looking at whether the mother has the right to bring this new litigation forward. The court did mention, though, that it will be very unlikely the mother succeeds, writing,

“ There is no doubt that this appeal will be very challenging. The appellant will need to overcome two separate bases supporting the judge’s order. She will have to establish that the judge erred in concluding that she has no standing to proceed with this case. If she is successful, she will have to meet the argument that this litigation amounts to a collateral attack on the previous decisions of this Court in her case and other litigation in affirming that child support orders need not be made retroactive to the date of the child’s birth. On what I have heard this morning, it seems to me highly unlikely that she will succeed in overcoming these hurdles,” adding “However, I am reluctant to conclude that the appeal is bound to fail.”

After concluding the appeal was not frivolous of vexatious, the court granted her application, waiving any fees normally required to proceed.

The family law team at Borden Family Law have been helping clients with child support matters for over 17 years. We look to ensure your children will have their financial needs met if your relationship comes to an end. We work to find optimal arrangements for our clients and their children. If you have a child support, or other family law matter to discuss, please call us at 905-576-6090 or reach us online to talk today. Please ask us about our bundled services and flat fees.