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.


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.