05/27/2014 07:50 EDT | Updated 07/27/2014 05:59 EDT

Woman who took child to Italy loses child support appeal in B.C.'s top court

VANCOUVER - A woman who fled with her daughter to Italy almost five years ago is not entitled to back child support, British Columbia's top court has ruled.

Justice Daphne Smith said in her 2-1 majority decision posted online Tuesday that the conduct of Sibylla Hughes prevented the father from supporting the child, and she'll now have to pursue support in Italy after wrongfully removing the girl from B.C.

Sibylla Hughes launched the action in the B.C. Court of Appeal after a lower court ruled last June that she shouldn't be paid more than $32,000 from her former husband Calum Hughes — who hasn't spoken to his daughter in five years.

"In this jurisdiction, the child’s best interests were found to be served by her being in the father's custody with the attendant right to support from the father by reason of his primary care of the child," said Smith.

"The mother has chosen not to comply with that order.

"It is her conduct in refusing to return the child to the father's custody that precludes the child from obtaining support from the father."

Smith said the mother's refusal to return the child has established a "material change of circumstances," which formed the foundation of the father's successful application to rescind and cancel arrears.

But in dissenting reasons, Justice Edward Chiasson said that there is not enough evidence to set aside an earlier order cancelling child support, and the matter should go to the Supreme Court of Canada.

The mother's lawyers was not immediately available for comment.

Calum Hughes said he now wants to stay away from the litigation and conflict and deliver a message of love to his daughter, who turned seven in January.

"She's close to my heart," he said.

"Every morning I wake up and say a prayer for her on my drive to work. Somewhere, somehow, she'll know that her family here in Canada loves her unconditionally, and we'll have open arms when the opportunity comes to somehow speak with her."

The couple married in 2006, their daughter was born in 2007, but they separated later that year.

The courts issued several custody orders during the following years. The last was issued on June 30, 2009, giving the father unsupervised access on specific dates.

But Sibylla Hughes took the girl to Italy before a scheduled visit with her father on July 17, 2009.

She was ordered to return the girl to Vancouver, but refused, which prompted the court to issue a contempt order and an arrest warrant and then grant custody to the father in a 2010 ruling.