26 March 2012

Appeal Heard on Unsual Stepparent Child Support Decision

In July 2011 the British Columbia Provincial Court released a very odd judgment on steppparents' liability to pay child support in a case called K.A.L. v. J.P.R. To be clear, it wasn't the court's decision that was odd but the circumstances in which the action was brought.

K.A.L. was followed up a few months later in September with an unreported Provincial Court judgment rendered in an almost identical situation involving parties surnamed Faint, McFayden and Godin. The Supreme Court has just released its decision in the appeal of the unreported case, a decision that might just resolve any appeal brought from K.A.L. as well.

Background

As I pointed out in my post on K.A.L., "Stepparent Caught by Hole in Family Relations Act," the current legislation on family law matters in this province contains one very significant omission:
"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."
The surprising conclusion this led to in both K.A.L. and the unreported case was that a stepparent in an intact relationship with a biological parent was successfully sued for child support by the other biological parent. Both judges found that once the hapless steppparent met the statutory definition of steppparent, he became liable to pay child support to the parent with the primary care of the child, even though still in a relationship with the child's other parent.

K.A.L. came as a bit of a shock to many family law lawyers, yet was well within the plain reading of the Family Relations Act:
  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))
And that's all there is to it. It just took the enterprising parents in K.A.L. and the unreported case to notice it.

The Appeal Decision

In McFayden v. Faint, Ms. McFayden and her husband Mr. Godin appealed the Provincial Court order requiring Mr. Godin, the stepparent of Ms. McFayden's child, to pay child support to Mr. Faint, the child's other parent and the parent with primary care of the child. Cutting to the chase, the Supreme Court upheld the lower court order and gave Mr. Faint his costs to boot.

Here is how the Supreme Court analyzed the situation, and I can do no better than quote from the judgment:
"[16] Section 88 of the FRA describes the obligation of a parent to provide for the support of the child, stating:
(1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.

(2) The making of an order against one parent for the maintenance and support of a child does not affect the liability of another parent for the maintenance and support of the child or bar the making of an order against the other parent.
"[17] Section 1 of the FRA defines 'parent' as including:
(b) a stepparent of a child if
(i) the stepparent contributed to the support and maintenance of the child for at least one year, and

(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;
"[18] Section 1(2) of the FRA defines 'stepparent' as follows:
(2) For the purpose of paragraph (b) of the definition of 'parent' in subsection (1), a person is the stepparent of a child if the person and a parent of the child
(a) are or were married, or

(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.
"[19] The Guidelines created by the federal government were adopted for use in B.C.’s FRA through the CSG. The latter defines how the Guidelines and the FRA are to work together.

"[20] Section 1 of the Guidelines sets out its objectives which includes:
(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation. [Emphasis added]
"[21] Mr. Godin submits that s. 1(a) of the Guidelines should be interpreted as being applicable to a stepparent only if he or she is separated from the biological parent. Since he is still married and living with Ms. McFayden he asserts that he is not obligated to pay such child support.

"[22] Mr. Godin acknowledges that he falls within the definition of parent as found in s. (1) and 1(2) of the FRA which leads to the question of whether s. 1(a) of the Guidelines should be interpreted as obliging a stepparent to pay child support as sought by Mr. Faint only if the stepparent is separated from the biological parent.
"[23] In K.A.L., Judge Dickey succinctly addresses the interpretation and application of s. 1(a) of the Guidelines where the stepparent is not separated from the biological parent of the child, stating at para. 18 of his reasons:
[18] In analyzing the issue of whether the 'Objectives' of the Guidelines should guide the interpretation of the FRA, it must be remembered that this is an application under the FRA and not under the Divorce Act and Guidelines. The Divorce Act and Guidelines apply to persons who are, or were, married to each other. The FRA is much broader in scope in that it applies to persons married to one another, persons in a marriage-like relationship, and stepparents. The 'Objectives' of the Guidelines relate to the more restrictive Divorce Act. The Regulation broadens the scope of the Guidelines by adopting them, and then expanding their application by broadening the definitions; see s. 1(3)(h) of the Regulation, in which reference to 'spouse' in the Guidelines is to be read as a reference to 'parent' as defined in the FRA, except for s. 5, in which it is to be read as a reference to 'person'. I also find that the 'children first perspective' of the Guidelines should be used as an interpretation guide to broaden and not narrow the obligation to provide child support, unless the obligation is clearly limited. I find, therefore, that the restrictive nature of the 'Objectives' of the Guidelines does not limit the child support obligations as found in the FRA.
"[24] The approach taken by Judge Dickey in K.A.L. is consistent with that found in Adler v. Jonas, a case involving a stepparent’s obligation to pay child support to his wife’s child. Mr. Justice Hardinge wrote at para. 20:
... I think it appropriate to note here that the provisions of the Family Relations Act should be given a liberal interpretation wherever its provisions relate to children. In Prichard v. Prichard, Spencer J. of this court said at paragraph 6:
The Act as a whole should be given an interpretation consistent with its objective of regulating the affairs of families in the broad sense. Where it deals with children it should be construed liberally in their favour to provide for their 'reasonable support'.
"[25] I concur with the liberal interpretation adopted by Judge Dickey in K.A.L. and affirmed by Judge Donegan in Faint when he concluded that Mr. Godin had a legislated obligation to pay child support for [the child], and that it was not relevant that Mr. Godin and Ms. McFayden were still married and living together."
In other words, the analysis in K.A.L. was bang on and accurately interpreted the more liberal provisions of the Family Relations Act as appropriately capturing stepparents in ongoing relationships with the parent of a child.

17 comments:

  1. Thank You To Mr. Boyd For his continued efforts in educating people through his site.
    This is Mr. Faint and I would just like to point out a couple issues with my case that I feel have been missed. In my case I do not feel that the stepparent was hapless (unfortunate) at all. My son had lived with Mr. Godin for 10 going on 11 years when they made the decision to ask my son to leave their house (he was 13 at the time). It was by their choice and not the choice of my son or myself that his standard of living was drastically altered. I had made a couple of very small settlement offers to them of what I had felt would just help support my son. It was their decision yet again that continued this action to the point it reached. I did what I felt was right for my son, I will always do that and do not know if enterprising would be the right way of describing myself. I am a firm believer that if you take a child`s choices away from them as my sons was someone needs to step up to the plate for that child as I did for my son. This has never been anything more then what was needed to help support my son from the same 3 parents whom had always supported him from a young age and should continue that support, not just blindly take it away from him.
    Once again thank you Mr. Boyd for your site and blog. It was very helpful through this whole process.
    Jason Faint

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    1. Thanks very much for your comments, Mr. Faint, and congratulations on your success.

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    2. This comment has been removed by the author.

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    3. This comment has been removed by a blog administrator.

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  2. This post is closed to further comment by the parties to McFayden v. Faint. Suffice it to say that there are two sides to every story.

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  3. I'm unclear on how this case is actually signficant. It's my understanding that the non-custodial parent's (NCP) rate of support is calculated based on family income, that is, the combined income of both the NCP and his or her spouse, the child's step parent (SP). In that light, doesn't the SP in an intact marriage pay support already? The only way this case would be precedent setting is if the combined family income is used to calculate the NCP's support and the SP's support separately. Is that the case here?

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    1. In my view the case is significant because stepparents are not normally called upon to pay child support until the stepparent and parent have separated, and when that happens the person asking for support is the person who was the spouse of the stepparent. The case's significance doesn't lie in the calculation of the amount of child support but the fact that the parent with custody was asking for child support from the spouse of the other parent.

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    2. My understanding is that child support is determined based on the income of the paying parent, not the combined income of the household as suggested by Dalou. I'm sure there are some exceptions to this (as I have seen with imputed incomes, hardship claims, etc...) however my understanding is that only the income of the biological parent is normally taken into account

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  4. It appears to me any other conclusion suggests thinking which encourages separation in the interest of fully supporting the child. I commend the progressive decisions as is intended with the introduction of the new legislation.

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  5. I believe this decision is the most ridiculous ruling I have ever heard of. The support payments should be paid from the combined income of the biological and step-parent. Everything else under the law considers married couples as one, why not this. Horrible in my opinion.

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  6. I think only biological parents should be required to support their children. Canadian law uses the "best interest of the child" analogy to screw decent men and women who are not even guardians of a child to pay up. It's a complete scam with the sole purpose of preventing single parents from accessing government assistance. When it comes to providing social assistance to children, the "best interest of the child" analogy is thrown out the window as the amount of social assistance provided is miniscule and therefore "not in the best interest of the child". Funny how the government doesn't apply the concepts they foist on the public in their own policy.

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    1. I agree with you 100%. The biological breeders of the child should pay for their offspring.. In most cases step-kids & step-parent rarely maintain a relationship after the divorce..
      Those who breed MUST PAY for their brood!

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  7. If anyone required additional rationale to avoid dating single parents, this is it.

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  8. This is my second divorce, my ex moved out and left me with 4 children. 2 from a previous, which i full custody, her child from another marriage (which she would say all the time that this is not my child) and a child we had together. The original deal was, she would move out, get her self established. Then come back a get her biological daughter, with me still having custody of the 3 of children. Before the year was out, she ran out of money and decided to move in with her mother. Her daughter decide to move into since that was the original plan. Now I'm stuck pay child support and I have custody of 3, not fair. The mother has poisoned the child and has said that I'm an awful parent, the child wants nothing to do with me. If I was so bad why would i have custody of 3 children, that are flourishing well in everything they do. This is only a summary of the story.

    This is ridiculous, step-parents should not be responsible to pay any support to a child that isn't theirs. It's hard enough to get the step-children to like them, in the courts eyes being nice and caring to the step-child, means that you're now responsible for them. That makes no sense.

    Basically they want the step-parent to ignore the child and not make them feel part of a family. Which will in turn have a negative affect on the child, then push them to be more disobedient and rebel against everyone.

    The courts not only want step-parents to pay but to continue a relationship with them. REALLY most step-children don't want to continue a relationship with the step-parent. Trust me first hand experience, EXs can and will poison the child and the child will want nothing to do with you, but they're more than willing to take money.

    To top it all off, you can't even get a legal document, like a prenuptial agreement, written up excusing yourself from future child-support payment to a step-child, if the relationship should ever break.

    Single parents with children(s) have a hard enough time finding another partner. This makes it 1 million times harder, because when they find out you have children the other person will run. Single parents will be pushed into depression, just because they can't find anyone that would want to be with them.

    Trust me I'm still looking as soon as they hear I have 3 children, they run :(

    Please understand I'm sympathetic to both sides, but in the long run its the original parents responsibility to care of the children not the step-parent

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    1. In my point of view this case is the best example why NO ONE should date with a single parent. It is clear that the Canadian laws punish every "good samaritan".

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    2. Lesson Well Learned.. Breaders PAY for your own Brood! Stop robbing the step-parent.. Once the relationship is over, it truly is over!

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  9. Even though I have children of my own, I will not ever move in with a mother with children, or have her and her kids move into my house. Why should she not return to the standard of care her and the biological father can supply THEIR children if my relationship with her dissolves? Is two years really enough time to become a "parent in place of" (loco parentis) and be on the hook for kids for decades after she leaves? There is no limit to the number of people who can be supporting any one child too... seems to me like single parents are literally incentivized to take on new partners then discard them after a while, adding more and more people to the payroll that is in the "best interests of the children". I have to wonder... with all these payees on the hook, when does benefiting the children stop and subsidizing mommy's lifestyle begin, especially when even raising an eyebrow about where the money is actually going is considered sacred and private information? I plan to warn every single man alive looking at becoming a step-parent. They should also be aware that if she has a good career in place, she could decide that she can reduce her hours dramatically and simply rely on support income from former partners. And the amount the kids get from bio-dad is irrelevant.

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