25 April 2009

BC Supreme Court Issues Important Judgment

Varga v. Varga, 2009 BCSC 416 concerns, among other things, the determination of a husband's obligation to pay child support for two children of his wife's previous relationship and child support for a child of their own relationship when custody of that child was shared.

This case involves two tricky questions about child support: how child support should be calculated when custody is shared; and, how a step-parent's child support should be calculated when someone else also has a responsibility to pay child support. Normally, child support is calculated simply by referring to the Child Support Guidelines tables and looking up the amount payable at the payor's level of income. The issues in Varga involve two exceptions to this general rule which allow the court to pick an amount of child support different than what the Guidelines tables require...

1) Under s. 5 of the Guidelines, the court can order a step-parent to pay a different amount of support if there is someone else, like another biological parent, who also has a responsibility to pay for the kids. As long as the other parent is actually paying child support, the court will usually treat the step-parent's obligation as a kind of "top up" to the biological parent's obligation, and the step-parent is rarely required to pay the full table amount of child support.

2) Under s. 9 of the Guidelines, the court can order a parent to pay a different amount of support if the parents share the children's time equally or near-equally. Although there are different ways of calculating how much child support should be paid, in general the court will make the payor pay the full table amount minus the full table amount the recipient would pay; this is called the "set off" approach.

In Varga, the court decided that the set off approach for the one child of the parties' relationship wouldn't do because it would result in too great a difference in the standard of living in the child's two homes, and too great a decline from the standard of living the child enjoyed when the parties' were still together. The court ordered the husband to child support of $650 per month, a bit less than the husband's child support table obligation of $755 and a lot more than the set off amount of $376.

With respect to the other two children, the court described the task required by s. 5 of the Guidelines: the court must consider the legal duties of the biological parent and quantify the amount of support the parent should pay, and the amount of the biological parent's child support obligation should presumptively be the full amount owing under the child support tables. The problem, however, was that the child had left the wife to live full time with the father about a year and a half after the husband and wife separated. The court decided that the husband would have no child support obligation from the date the child began to live with the father, however, he would hate to pay arrears of child support accumulating between the date of separation and the date the child went to live with the father.

2 comments:

  1. last sentence of the post - all of my clients hate to pay arrears too!

    ReplyDelete
  2. Yeah, that'd be "have." Thanks for the note!

    ReplyDelete