15 September 2013

Varying Entitlements Not Carried Forward in the FLA

I've been thinking more about the issues raised in my last post, "Court Declines to Determine Application of FLA to Unmarried Spouses Separating Before Act," about the transition to the new Family Law Act and was reminded about a really interesting Provincial Court case my friend Michelle Kinney mentioned that deals with a similar problem: what is the court's jurisdiction when it is asked to vary an order made under the Family Relations Act where the right to ask for the order is not carried forward in the Family Law Act?

The Family Relations Act allowed people to ask for a number of different orders that are no longer available under the Family Law Act. The most important of these are probably the right to ask for parental support, support payable by adults to their parents, and a parent's right to ask for child support from the other parent's new spouse while the parent and spouse are together; the case of D.J. and K.J. v. C.K. and T.K. is about child support.

Under the old act and the new, stepparents can be required to pay child support. Most people are pretty comfortable with that idea. However, the issue raised in cases like McFayden v. Faint and K.A.L. v. J.P.R. was whether a stepparent who is in a continuing relationship with a parent can be required to pay child support to the other parent, and the answer, under the old act, was that in certain circumstances they can. (For an explanation of why this was the case, see my post "Stepparent Caught by Hole in Family Relations Act.") The new law corrects this problem by saying, at s. 149(3)(b), that such applications cannot be brought until the stepparent and parent are separated, and as a result the stepparents in McFayden and K.A.L. find themselves in the unusual situation of being stuck paying child support under an order that could not be made under the present law of British Columbia.

This was more or less the case in D.J. v. C.K., where the parties wisely entered into a consent order (an order that everyone agrees the court should make) in 2011 that required the spouse of one of the parents to pay child support to the other parent. (I say "wisely," because this was the law of the land at that time, and it was prudent of everyone to make a deal rather than going through an expensive and time-consuming court hearing.) However, as time passed the stepparent's income must have gone up, and since the child support obligation of all payors, stepparents or not, is based on income, the recipient brought an application to vary (change) the amount of the stepparent's child support payments. Since this application would not be heard until after the Family Law Act was in effect, the stepparent cleverly made an application of his own to prevent the recipient's application from being heard, on the basis that since the order couldn't be made under the new act, it couldn't be varied under the new act.

(Let me pause here to comment about effect of orders made under the old act. Such orders, whether they could be made under the new act or not, continue to operate and are not affected by the repeal of the old act. This is addressed in several parts of the Interpretation Act:
35 (1) If all or part of an enactment is repealed, the repeal does not...
(c) affect a right or obligation acquired, accrued, accruing or incurred under the enactment so repealed, ...
36 (1) If an enactment ... is repealed and another enactment ... is substituted for it, ...
(b) every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment, 
(c) the procedure established by the new enactment must be followed as far as it can be adapted in the recovery or enforcement of penalties and forfeitures incurred under the former enactment, in the enforcement of rights existing or accruing under the former enactment, and in a proceeding relating to matters that happened before the repeal, ...
37 (1) The repeal of all or part of an enactment, or the repeal of an enactment and the substitution for it of another enactment, or the amendment of an enactment must not be construed to be or to involve either a declaration that the enactment was or was considered by the Legislature or other body or person who enacted it to have been previously in force, or a declaration about the previous state of the law.
In other words, rights acquired under the Family Relations Act aren't cancelled because the old act has been repealed, and proceedings started under the old act must be continued under the new act in accordance with the new act.)

The stepparent's application was heard by Judge Birnie over the course of several days right after the Family Law Act came into effect, in March and April. This was how the judge characterized the stepparent's essential argument:
"[4] The Respondent argues that as of March 18, 2013 when the Family Relations Act was repealed and replaced by the Family Law Act no child support order, including any variation of an existing order, may be made against a step-parent if that person continues to reside with the biological parent. On an application to vary an existing order the Court may only affirm the order or cancel it. A variation is not permitted."
The respondent's argument was of course much more complicated and nuanced than this brief summary suggests; the argument is set out in detail at paragraphs 5 to 15 of this decision and it seems that the respondent's lawyer did a very good job indeed.

Ultimately, however, the respondent did not succeed. The court held that the right to vary an order is intrinsic to the order itself and cannot be separated from it:
"[17] At the heart of the respondent’s argument is the characterization of child support and the variation of child support as two separate rights. This approach fails to acknowledge the reality that the latter flows necessarily from the former. The right to claim maintenance is the essential right. The right to vary [support] in relation to the circumstances of the child or the payor parent, (and on behalf of either of them), is a right which flows from and cannot exist apart from the underlying support claim. ...
"[19] A [support] order is the key that opens the door to support payments. Applications to vary are, in essence, a means to ensure that an appropriate amount of support flows through the door – an amount which is fair to both the payor and the recipient. The right to vary is an essential component of the right to receive or the obligation to pay child support."
Unfortunately, because of s. 35(1)(c) of the Interpretation Act, the respondent could not argue that the original consent order was void as a result of the repeal of the Family Relations Act. The court further held that in absence of an express provision in the act that prohibited the variation of valid orders made under the former act, such orders can be varied where fairness so requires:
"[25] While the Family Relations Act is repealed effective March 18, 2013, the Family Law Act does not state that any rights or vested interests acquired under the Family Relations Act are extinguished. [The provision] that the coming into force of the Family Law Act is not a change in circumstances for the purpose of changing, suspending or terminating existing orders, suggests the contrary. It is an indication of a legislative intent that the new provisions are prospective only and not intended to disrupt existing rights. 
"[26] The fact that as of March 18, 2013 a [stepparent living with a parent] has no obligation to pay child support does not erase an obligation imposed prior to that date and this is so regardless of whether the legislature’s intent was to narrow what they considered to be an over-broad application of child support obligations in relation to step parents. 
"[27] The Family Law Act does not expressly state that a pre-existing order requiring a [stepparent living with a parent] to pay child support may not be varied and can only be understood to do so implicitly if the right to vary a support order is a right separate and distinct from the right to support which underlies it. ... 
"[28] This interpretation of legislative intent avoids the unfairness to both payor and recipient, of a child support order which cannot be varied in accordance with the circumstances of the parties, but can only be affirmed or terminated. It does not undermine the policy implemented by the Family Law Act toward a step parent’s obligation to pay child support. It simply means that the very few [stepparent living with a parent] who were bound by valid maintenance orders prior to March 18, 2013 continue to be bound to pay maintenance in accordance with their ability to earn income and the child’s needs and subject to the other factors which a court may consider in determining a step parent’s obligations."
My thanks to Michelle for bringing this case to my attention.