Brown v. Kucher, (2016) 389 B.C.A.C. 193 (CA)

• Judge: Newbury, Frankel and Savage, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 13, 2016
• Jurisdiction: British Columbia
• Citations: (2016), 389 B.C.A.C. 193 (CA);2016 BCCA 267

Brown v. Kucher (2016), 389 B.C.A.C. 193 (CA);

    671 W.A.C. 193

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JN.048

Kirk Brown (respondent/claimant) v. Merrill Kucher (appellant/respondent)

(CA43006; 2016 BCCA 267)

Indexed As: Brown v. Kucher

British Columbia Court of Appeal

Newbury, Frankel and Savage, JJ.A.

June 15, 2016.

Summary:

Kucher and Brown had a relationship in 1994, which Brown terminated when Kucher told him she was pregnant. Their child was born on September 1, 1995. Both parties had children from previous relationships. Kucher struggled financially but never sought child support until October 23, 2013, after the child made contact with Brown on Facebook. Kucher sought child support, including an order retroactive to the date of the child's birth. Brown (60 years old; moderate income) paid ongoing Guideline child support since January 1, 2014, and contributed to the child's education.

The British Columbia Provincial Court, on its analysis of the four "D.B.S. factors", awarded retroactive child support of $70,320, being the sum of child support that would have been payable between 1995 and 2013 under the Federal Child Support Guidelines. Brown appealed.

The British Columbia Supreme Court, in a decision reported at [2015] B.C.T.C. Uned. 1258, allowed the appeal, and awarded Guideline child support retroactive to October 2013. Kucher appealed, arguing that the Chambers judge failed to apply the correct standards of review applicable to findings of fact and discretionary decisions.

The British Columbia Court of Appeal dismissed the appeal. The trial judge's ruling that Brown's "doing nothing" for 18 years amounted to misconduct "at the high end of the scale of blameworthiness" constituted a misapprehension of the relevant law. The Court also referred to Kucher's reason for the 18-year delay. "It was surely an error in logic - and I believe, in law - for the trial judge to move from a finding that Ms. Kucher was 'traumatized' in 1995 by Mr. Brown's walking out, to the conclusion that she remained unable, because of her emotional fragility, to seek financial assistance for the following 18 years. "

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - See paragraphs 1 to 32.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - See paragraphs 1 to 32.

Family Law - Topic 2367

Maintenance of spouses and children - Defences or bars - Delay or estoppel - See paragraphs 1 to 32.

Family Law - Topic 2421

Maintenance of spouses and children - Appeals - General (incl. standard of review) - See paragraphs 26 to 32.

Counsel:

J.W. Horn, Q.C., for the appellant;

A.G. LaCroix, for the respondent.

This appeal was heard at Victoria, British Columbia, on June 13, 2016, before Newbury, Frankel and Savage, JJ.A., of the British Columbia Court of Appeal. Newbury, J.A., delivered the following oral reasons for judgment, dated June 15, 2016.