30 July 2011

Stepparent Caught by Hole in Family Relations Act

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

The Family Relations Act, British Columbia's primary law on domestic relations, is missing something very important: a triggering event for applications involving custody, guardianship, access, child support and spousal support. Nothing in the law restricts how soon an application on these issues can be made; in particular, nothing says that an application can't be brought while a couple are still together.

This isn't usually a problem, of course, since people are usually pretty annoyed when they decide to sue one another, and if they haven't split up by the time litigation commences, the commencement of litigation will usually do it. However, there can be odd consequences when other people, like grandparents or former spouses, step into the picture, since nothing says when they can and can't make applications of their own. (I made some comments about this during the consultation phase of the Family Relations Act Review, and there's a chance that the new legislation will correct this issue.) The legislative chickens came home to roost for one stepfather after an application by the child's biological father in a case recently before the Provincial Court and brought to my attention by my friend Agnes Huang of Schuman Daltrop Basran Robin.

In K.A.L. v J.P.R., the biological father brought an application for an order that the mother's new spouse - his child's stepfather - pay child support. So far this is fine, since stepparents are also liable to pay child support. The catch, though, is that the stepfather and the child's mother were together when the father brought his application!

The judge made a very thorough review of the Family Relations Act and the Child Support Guidelines for the following basic principles:
  1. Each parent of a child is responsible to support a child. (FRA, s. 88(1))
  2. The fact that one parent is ordered to pay child support support doesn't stop the other parent from being ordered to pay child support. (FRA, s. 88(2))
  3. "Parent" includes biological parents and steppparents, as long as the stepparent has contributed to the support of the child. (FRA, s. 1(1))
  4. A "stepparent" is someone who is married to a parent or someone who is in a common-law relationship with a parent (FRA, s. 1(2))
  5. Child support orders are to be made using the Child Support Guidelines tables. (FRA, s. 93(1))
  6. Child support orders can be made in a different amount than the Guidelines tables, but only when there is an order or written agreement that provides a benefit to the child in some way and it would be unfair to apply the Guidelines tables. (FRA, s. 93(2))
  7. Child support orders against stepparents can also be made in a different amount than the Guidelines tables as a result of "any other parent's legal duty to support the child." (CSG, s. 5)
And there you have it. Parents are liable to pay child support, stepparents are liable to pay child support for the benefit of a child, more than one "parent" can be required to pay child support at the same time, and nothing says when an application can and can't be made or restricts when a parent can bring the application. As a result:
"I, therefore, find that when one reads the legislated scheme for child support as a whole, and give the wording its 'grammatical and ordinary sense', a stepparent who satisfies the definition of 'parent' and lives with the parent of a child, is still obligated to make child support payments. This obligation occurs despite the fact that the parent of the child is also obligated to make child support payments."

"The [father] is entitled to bring a claim against the respondent stepfather for child support pursuant to s. 5 of the Guidelines."
Now, the judge didn't make an order against the stepfather at this point, and nor did the judge comment on who might be the recipient of the child support order. That will be the subject of a future application, and I expect that some interesting arguments will be advanced. I also wonder whether, some time before that application, the mother and the stepfather will enter into a written agreement under which the stepfather provide sufficient indirect benefits to the child that his child support obligation will be exhausted.

39 comments:

  1. It is interesting to note that BC intends to allow civilly married persons (as in not divorced) to cohabit as spouses with another(s) and for the purposes of marital property, have more than one "spouse" at a time. This was previously thought to be polygamy or polygamy, but a legal loophole allows persons to have more than one simultaneous legally recognized spouse. Persons do not need the permission of subsequent nor existing spouses to "become the spouse of a person who has a spouse".

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  2. Would not the "triggering event be under the FRA section 1, b(ii), the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child, and the words LAST contributed be that trigger??

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    1. The definition of "stepparent" does have a built-in requirement that a support claim be brought within one year of that person's last contribution to the child. That's a hard time limit intended to limit stepparents' liability, but a claim for support can be made at anytime in that one year, regardless of the parties' personal relationship with one another.

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  3. Yes I do agree it does need to be brought forth within the one year time frame. My question though is that if the stepparent is still contributing under the actual definition of what support and maintenance is, then can the action still be brought forth? Or does the LAST contributed clause stop the action. This is why I refer to that clause to be the one that can or can not "trigger" the action?

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  4. The action can be brought while the stepparent is contributing and within one year of the last contribution. The Family Relations Act does not require a "trigger" such as separation or stopping payments before an action can be started.

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  5. Ok so next question then. can a non custodial parent (stepparent) whom is obliged to a support order then seek the lowering of their quantum amount by seeking a remedy against the common law partner of the payee parent? A common law partner whom the child lives with and whom already supports the child by the legal definition and beyond that definition? All of these new law these people are creating are now opening the door for parents with no custodial rights to claim against other non custodial parents, or am I reading these 2 cases wrong

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    1. I don't think a non-custodial stepparent would be able to sue a custodial stepparent to reduce his or her child support obligation. Theoretically, the non-custodial stepparent's obligation should have been calculated under s. 5 of the Child Support Guidelines to take into account the child support obligation of anyone else who qualifies as a "parent," including the custodial stepparent.

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  6. Ahh I see. But what if the non custodial stepparent has a change of circumstance argument that the custodial stepparent now has just past the 2 year mark of living with the custodial natural parent and feels that should qualify the custodial stepparent to lower their quantum.

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    1. I can't answer that question; the range of potential outcomes in family law problems is always highly circumstantial, and I can't give legal advice in this blog. You should speak to a lawyer in your neighbourhood for some proper legal advice. The CBA's lawyer referral service is usually a good place to start.

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  7. I have a question.
    I am living common law with my partner who has a child. His childs mother has sole custody so obviousely the child lives with her. We see him about once every 2 weeks on the weekend. I make a much greater income than my partner and I'm concerned that his Ex, the mother, might make a claim against me for child support. The child has never lived with us nor have I contributed in any way to his support - besides enjoying the weekend with him. What is the acutal definition of a "stepparent"? It seems as though I am one by what I've read, although I hardly spend any time with him. My boyfriend and his Ex have a long and ongoing battle about the amount of child support he pays - which I won't get into. I'm concerned about my position here. Any advice would be greatly appreciated - Thank you
    Thank you.

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    1. Under the Divorce Act, a person liable to pay child support includes a person who is married to the parent of a child if that person as stood in the place of a parent in respect of the child. Under the Family Law Act, a stepparent is defined as "a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life." Both statutes are available online.

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  8. Thank you for your eply.

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  9. With no custody agreement in place, when children travel out of province to visit a parent, can that parent simply refuse to return them home?
    In this case, the result would involve a different province, school changes and separation from their other siblings.
    The parent keeping the children has attained a court order stating that the other parent is unfit. I understand that when children are involved, their safety and well being are the courts primary concern, as it should be, however, if a parent simply wants to have their children live with them now, can they really just go out and get an order against another parent making them out to be unfit without having any evidence or backing? This seems flawed to me, but perhaps completely legal with no custody agreement. Also, would this "Order" be a final order? or an Interim Order?

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  10. so can i as a step father go after the biological father for court ordered child support? very confused, this man pays 150 dollars a month and has been late on those payments, keep in mind that this was not a court ordered settlement, this was a settlement garnered under the duress of my spouse, who it seems is still very scared of her ex. he makes great money at least 25-30 dollars and hour and has been at the same job for over 25 years. Please help me, i am looking at divorcing my wife because of all this.

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    1. It's possible, but it all depends on your exact circumstances. If it helps, under the new Family Law Act the father can't claim child support from you until you and the child's mother are separated. You should speak to a lawyer in your neighbourhood to get proper advice.

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  11. If a parent was awarded 50% guardianship under the Family Relations Act, am I correct in my understanding that they will be considered a guardian with parental responsibilities under the Family Law Act? Is this an automatic transition that takes place? Or does said parent have to go to court to apply for their guardian status?

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    1. A parent wouldn't have had "50% guardianship" under the old act, the parent would either be the child's sole guardian or a joint guardian of the child. Under s. 251 of the Family Law Act, someone who was a guardian under the old act continues to be a guardian under the new act.

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  12. Thanks for your response.
    That's interesting because written cleary in the order, the father was awarded 50% guardianship of the child (so that he could be involved in decision making) but the mother had sole custody. This decision was made while the Family Relations Act was in place. It's all very confusing.

    I'll try to make this one brief, but I'm not even sure that you can respond. I appologies in advance for wasting your time if that is the case.

    The father has a gross annual income of between 38K & 45K. He has been a sole proprietor since 2010. He was ordered to pay $823 in child support based on an imputed income of 90K in 2011. He can't afford these payments, but has been paying $500 a month plus all additional (not only extrodinary) expenses without fail. This is obviousely hard on him financially. The FMEP is now representing his EX in court and trying to sue for the arrears and full payments. He has for years disclosed all of his financial information to the judges including his Rev Can statements as far back as 2005, the year he met the childs mother. He has never made an annual income close to 90K. If he was ordered to make payments based on his current gross annual income before any deductions, (for this purpose I'll average his income at 42K) he would have to make child support payments of $411 per month based on the table amount. He is about 10K in arrears, the difference of his ordered amount vs the $500 he pays. He believs the child support tables are low and this is why he pays as much as he can.
    Is there any specific argument, case file or section of the Family Law Act that I can focus on to try to help his case? I've been reading through, but as you know, there isn't any info that seems specifically applicable to his case. I should also let you know that he did appeal the order based on the fact that he never made the income that was imputed on him, but while in court, was told that he needed to apply to change the order instead - which is incorrect as there were never any changes in circumstance.
    If he made 90K he would have most deffinately after a 6 year battle in court, hired a lawyer, but unfortunately, he can't afford one and has all along been representing himself.
    Any info or direction you could point me in would be great - thank you

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    1. I can't provide legal advice, I'm sorry. Your friend's problem involved the cancellation of arrears of child support, not guardianship. You can get more information about how the courts deal with arrears on my wiki, here:

      http://wiki.clicklaw.bc.ca/index.php/Child_Support_Arrears

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  13. thank you

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  14. Hi guys,
    I have a daughter that was born in desmoines Iowa 2009. The mother took the kid when she was 5 months to live with grand parents in Africa. The child came back to washington state in May 2013, lived in Washington for 6 weeks and been living in Canada since June 21st 2013.
    I filled a parenting plan in WA but was dismissed due to lack of jurisdiction. I the father have lived in Iowa since 2009... The mother and the kid lives in BC since June 21

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    1. If the courts of Washington State decided they didn't have jurisdiction, the courts of British Columbia will likely take jurisdiction.

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  15. If a final parenting order is in place but is not being obeyed, and the person who isn't obeying the order has applied to change that order, can application still be made to have the order enforced? The application to change the order was filed before the chance came to file the application to enforce. Can there be two "applications" filed on the same order?

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    1. You bet. This happens all the time. Most often, people have different ideas about how an order should be changed, but there's no reason why one application couldn't be to enforce the order while the other is about varying it.

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    2. Thank you very very much for answering my question so immediately.

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  16. In filing out a notice of motion (form 16), to enforce a parenting order, the instructions on the Family Law in British Columbia website say that you can email a copy of the document to the other party if their email address is included in the address for service. I'm filing the notice, so does this meant that I can simply include the email address in the address for service line and I I'm not required to have the document physically "served"? I've always had to have documents physically served in this particular family law case.

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    1. Service to an email address is permitted in the Supreme Court but not in the Provincial Court. The rule about service is Rule 9, which you can find here:

      http://www.bclaws.ca/civix/document/id/complete/statreg/417_98_01

      The rule basically says that the documents that start a case have to be personally served, but that other documents, including Notices of Motion, can be hand-delivered or mailed: "documents may be served by ... leaving the documents with the person or by mailing the documents by registered mail to that person's postal address."

      The rule also says that "a document served by mail in accordance with this rule is presumed to have been served 14 days after it was mailed," so you'd better be careful to make sure you've given enough notice of the hearing.

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  17. What type of government form do I use to enforce that my child is being returned to me at the appropriate day. For example, if the arrangement is for the other party to have the child for 5 days every 2 weeks, but the child is not being returned after the 5 day period, but rather after 7 days, how can I make sure that my child is being returned to the primary caregiver in due time?

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    1. There really aren't any good solutions. However, if the arrangements for parenting time are in an agreement, the agreement needs to be filed in court.

      If the arrangements for parenting time are in a court order or a filed agreement, the arrangements can be enforced by applying for an order under s. 230 of the Family Law Act. This section lets the court make a fine, require someone to pay for someone else's expenses or make someone pay some money into court as security for his or her good behaviour.

      If that doesn't work, and you have to try it first, application under s. 231 can result in someone being thrown in jail or the police being ordered to go and pick up the child. Someone who is forced to go to this kind of extreme might also also ask for orders changing the parenting arrangements altogether!

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    2. Thank you! The parenting arrangements are in an agreement, but the agreement has not been filed in court. I would like to understand why everyone says I have to file the agreement in Supreme Court? How long does it take to file something in Supreme Court and why not in Provincial court?

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    3. Agreements about parenting arrangements, contact, child support and spousal support can be filed in either the Supreme Court or the Provincial Court for enforcement. The process is fairly simply, and it involved filing a court form along with an original copy of the agreement; you should be able to do this in one trip to the family law counter at the court registry.

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  18. My ex husband and I are divorced (it was an uncontested divorce), and have we a legal separation agreement in place. How do I go about obtaining a court order in this case? Everyone tells me that in order to get a court order I have to file the Separation Agreement in Supreme Court? Why in Supreme Court and not in Provincial Court? It is confusing to me. So, what are the steps to go through 1) file Separation Agreement in Supreme court, then 2) obtain an order? How long does the process of filing a Separation Agreement with the court take and what form would I use to do so? Thank you very much

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    1. The first question you need to get answered is why you need an order. The both the Provincial Court and Supreme Court will enforce agreements on parenting arrangements, contact, child support and spousal support, which begs the question about what you would get out of asking the court for an order. You should speak to a family law lawyer in your neighbourhood for some proper legal advice about this.

      There is a special court form to fill out to file a separation agreement in court, and you should should be able to do it all in one trip to the family law counter at the courthouse. You will need an original copy of your separation agreement.

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  19. SERVING DOCUMENTS (Bring a notice of motion & affidavit)
    I wrote in a few weeks ago about how to serve on a person the above documents in provincial Family Law.
    We live in Vancouver and both my partner and I went on the ferry to Nanaimo, as he needed to go to the courthouse there to file his new "bring a notice of motion" and affidavit. He discovered in the courthouse that because of a notice of motion filed by his EX, never served on him, and yet still taken into court without him, there was little to no time to serve his own notice of motion on his Ex due to a new court date that was set for less than 2 weeks time. As advised, he changed the court date on his documents to match the already pre set date that his Ex acquired. This ruled out his planned registered mail service method. He photocopied her Notice of Motion & affidavit documents and then asked me if I would serve his notice of motion and affidavit on her as I know her and know where she lives in Duncan B.C. We then drove to Duncan to the place of her residence.
    Everyone was home, both her and her boyfriends vehicles were in the driveway and all the lights were on in the house. She saw us drive up but chose not to answer the door when I knocked. I knocked several times and then wound up slipping the documents between the door & jamb and calling out as we left that she'd been served. A little while later, she called my partner and said that the documents hadn't been served on her properly and aren't legitimate. We do know however that she did get them.
    She included her email address on her most current "Bring A Notice of Motion" (the one she never served on my partner that he photocopied in the courthouse) in the address for service line. If my leaving the documents in her door knowing that she was indeed home and was avoiding me isn't proper service (even though she does now have all the papers) can my partner now email them to the address she included in her address for service? We have very little time.
    Thank you in advance for your answer.

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    1. The rules of the Supreme Court and the rules of the Provincial Court each specify how someone is supposed to get served with documents. You need to read the rules, which are available online, very carefully to know what you're supposed to do.

      There are two types of service, "personal service" and "ordinary service."

      Personal service is required for the documents that start a new court proceeding, an application to change a final order or agreement, and an application for a finding that someone is contempt in court. I expect personal service is also required when applying to enforce, vary or change the determination of a parenting coordinator or the award of an arbitrator.

      Personal service involves someone meeting with the party to be served and physically handing the documents to them. The server must swear an affidavit saying who was served, where the person was served, what the person was served with, and how the server knew that the person being served was the person who was supposed to be served.

      The documents that start or defend a court proceeding require each party to provide an "address for service". An address for service is a street address, and may include an email address or a fax number. An address for service is the address when the party agrees to accept documents relating to a case, and may be a home address, a friend's address or an office address.

      Addresses for service are really important, because sending documents to that address is how you deliver court documents to someone by ordinary service. Just putting the documents in the mail, sending them by fax, or sending them by email to the address for service someone has given is ordinary service. They don't need to be hand-delivered or any of that stuff. Just mailed, faxes or emails.

      All court documents other than those I've listed above can be sent to someone by ordinary service. Most of the time, you're talking about a Notice of Application in the Supreme Court, and the documents which support the application or oppose it, and a Notice of Motion in the Provincial Court.

      You should speak to a family law lawyer in your neighbourhood for advice specific to your circumstances.

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  20. I've copied and pasted a section from the Family Law in British Columbia website. A Notice of Motion in the Provincial Court can be served by "delivery". The second paragraph below from the website states that documents can be dropped off as well as mailed, faxed or emailed... Does this mean that I can slip them through a door? It seems to me that this would be one of the accepted methods of delivery.


    What's the difference between personal service and delivery?

    You must serve some Provincial Court documents by "personal service." This means that someone must physically hand the documents to the party who needs to receive it. You can't do this yourself — you must have someone else, who's at least 19 years old, serve it for you.

    You can serve most Provincial Court documents by "delivery." This means that the documents can be either dropped off, mailed, faxed, or emailed to the other party. The delivery method you use depends on what the other party has included in their "address for service" (see below)....

    Thank you


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    1. The rules about service in the provincial court are these:

      Rule 2(3), (4) and (5) apply to people who are starting a new proceeding. They say that personal service of the document that starts an application for a final order, Form 1, is required.

      The same rules applies to people to who want to change, end or enforce a final order or an agreement. They say that person service of the document that starts an application to change or end a final order or an agreement, Form 2, is required.

      Someone who is on the other side of an application for a final order or an application to change or end a final order or an agreement replies to that application by filing a Form 3. Under Rule 3(4), the court takes care of serving that document on the person to who started the application.

      Rules 16(3) and (4) says that someone who wants to start an application to change, end or enforce an order about parenting arrangements or contact from another province has to personally serve the document that starts that application, a Form 22.

      Rule 9 covers how all other documents are served. Rule 9(1) says that documents other than Forms 1, 2 and 22 are served by delivering them as follows, and this is a cut and paste from the rule:

      (i) by leaving the documents with the party's lawyer or having a person who is at least 19 years of age, other than the serving party, leave the documents with the party to be served,
      (ii) by mailing the documents to the last address for service provided by that party under subrule (4) or (5),
      (iii) if the address for service provided by that party includes a fax number, by transmitting the documents to that fax number together with a fax cover-page in Form 10, or
      (iv) if the address for service provided by that party includes an e-mail address, by e-mailing the document to that e-mail address;

      As you'd see, it talks about service by leaving documents to the other side or the other side's lawyer, by mailing them to the other side's address for service, by faxing them to the other side or by emailing them to the other side. The catch with mailing is that you have to use the other's sides current address for service. The catch with faxing and emailing, is that the other side has to have provided a fax number for service or an email address for service; even if you know the other side's email address or fax number, you can't serve them there unless they have provided that number or email address in their address for service.

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  21. Hi there, in regard to step-parent support, when a step-parent is deemed responsible to provide support, for what duration is the support payable? I can find nothing in the family act in regard to duration for a step-parent. Is the responsibility for length of time the same as with a biological parent, though obviously secondary to the biological parent's ability to pay? Or, is the length of time limited or shortened according to the amount of time the step-parent stood in place of a biological parent?
    Two lawyers have advised me differently on this.
    Thanks in advance.

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    1. Stepparents are usually obliged to pay child support for as long as a biological parent would remain obliged to pay child support. However, there are some cases where the court has taken the statement in the Family Law Act that a stepparent's obligation is secondary to a parent's obligation to terminate a stepparent's obligation at the age of 19 and earlier than the age of 19. The length of time can sometimes be a factor, but the thing to do is to read the cases where the stepparent was treated differently than a biological parent to figure out the sort of things the court takes into consider. I've got links to some of these cases here:

      http://bcfamilylawresource.blogspot.ca/2014/11/an-short-survey-of-cases-on-new-family.html

      Skip down to the discussion of the duty to pay child support under s. 147.

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