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:
- Each parent of a child is responsible to support a child. (FRA, s. 88(1))
- 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))
- "Parent" includes biological parents and steppparents, as long as the stepparent has contributed to the support of the child. (FRA, s. 1(1))
- 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))
- Child support orders are to be made using the Child Support Guidelines tables. (FRA, s. 93(1))
- 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))
- 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)
"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."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.
"The [father] is entitled to bring a claim against the respondent stepfather for child support pursuant to s. 5 of the Guidelines."
