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MAINTENANCE AND SUPPORT - Child support - Constitutional issues

Tuesday, October 27, 2020 @ 9:05 AM  

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Appeal by the plaintiff, M.K., from an order striking her civil claim against the Province. In 2015, a Provincial Court awarded the plaintiff 18 years of child support, retroactive to the child’s birthdate. The payor successfully appealed the order to the Supreme Court of British Columbia, with the result that retroactivity was limited to the date of the plaintiff’s application due to insufficient moral blameworthiness on the part of the payor. The plaintiff’s subsequent appeals to the Court of Appeal and a leave application to the Supreme Court of Canada were unsuccessful. The plaintiff received $11,380 in retroactive support and was required to pay the payor $13,011 in appeal costs. Believing the result unjust, the plaintiff commenced a new action challenging the constitutional validity of the federal and provincial child support regimes. The plaintiff alleged that the Charter mandated making child support awards retroactive to a child’s birthdate and limited courts’ discretion in granting retroactive support. The plaintiff alleged that costs awards exceeding support awards constituted cruel and unusual punishment. The judge dismissed her claim as a collateral attack on the appellate decisions in the previous proceedings and an abuse of process. The judge also concluded that the plaintiff lacked standing to bring the constitutional challenge. The plaintiff appealed.

HELD: Appeal dismissed. The judge plainly did not err in applying the collateral attack doctrine and striking the claim as an abuse of process. It was well-established that it was impermissible to raise a constitutional issue in fresh proceedings that could have been raised in the previous litigation. The judge did not misconstrue the plaintiff’s claim and was entitled to conclude that the repute of justice would be harmed by permitting it to proceed. Nor did the judge err in assessing the facts or concluding that the plaintiff lacked private and public interest standing to challenge the impugned legislation. There was and continued to be a realistic alternate means for the constitutional issues advanced by the plaintiff to be raised during a first instance claim for retroactive child support.

M.K. v. British Columba (Attorney General), [2020] B.C.J. No. 1505, British Columbia Court of Appeal, G. Dickson, S.A. Griffin and P. Abrioux JJ.A., September 25, 2020. Digest No. TLD-October262020003