Thursday, May 1, 2008

Child Support Obligations of Step Parent

How do the child support guidelines apply when there is a support paying parent and a support paying step-parent? Does the child get double support? Support from the richer parent/step-parent? Do the parent and step-parent divide up their obligations?

Oh my!

The British Columbia Court of Appeal ruled Monday in H.(U.V.) v. H.(M.W.), 2008 BCCA 177 that the parent pays in full first and if there is a shortfall in the amounts necessary to provide the child with an appropriate level of support the step-parent must make up the difference. The decision is lengthy, detailed and nuanced.

A brief excerpt follows:

[38] As should be clear from the foregoing, although the broad principles of law relating to the existence of child support obligations on the part of stepparents are clear, Canadian courts have differed as to how those obligations, as stated in the Guidelines, are to be determined in practice. I read s. 5 as requiring that the legal duties of support of the other parent(s) in this case, the natural parents be considered when support is sought from a stepparent. If such duties are to be considered, it seems obvious that they must be quantified if possible. For this purpose, the other parent(s) should be before the court, or other evidence satisfactory to the court relating to that parent's status should be adduced, as occurred in Dutrisac and Kobe (but not in Chartier.) Unless that other parent is a stepparent, s. 3 requires that his or her support be the applicable table amount unless custody is being shared, the child is over age 19, or one of the other 'discretionary' provisions applies. (In the case at bar, the daughter had reached 19 by the time of the hearing below, but was still dependant on parental support, and no argument was advanced invoking s. 3(2)(b) of the Regulation. None of the other discretionary provisions applied.) At this stage, the process is not one of balancing or even apportionment: it appears that the natural parent's obligation can be determined only in accordance with the non-discretionary presumptive rule of s. 3.

[39] Thus the chambers judge below did err, in my respectful view, in failing to determine whether the father was in fact contributing an amount at least equal to what he would have been required to pay under s. 3 had he been making regular monthly payments in accordance with the Guidelines. Whether or not the father was doing so, the chambers judge should then have ordered him to pay his table amount although if the mother was content to accept support in the form of the payment of tuition fees or other expenses, she could enter an agreement with him to that effect. She could not, however, choose to give the father a pass in favour of pursuing the stepfather for all the support the children required.

[40] Once the duty of the other parent had been determined, the chambers judge could proceed to determine the stepfather's obligation, having regard to that duty and these Guidelines. I agree with the Court in Kobe that the chambers judge's discretion under s. 5 was not unfettered, but certainly the phrase these Guidelines would include the objectives stated in s. 1, which I repeat here for convenience:

(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;

(b) to reduce conflict and tension between parents by making the calculation of maintenance orders more objective;

(c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of maintenance orders and encouraging settlement; and

(d) to ensure consistent treatment of parents and children who are in similar circumstances.

Thus a fair standard of support, objectivity of calculation, and reduction of conflict between parents are relevant to the determination of appropriate support by the stepparent. On the other hand, s. 5 does not, in my view, confer a discretion that is so broad as to encompass all the circumstances of a case (as was suggested in Russenberger) or fairness to the father arising from a kind of promissory estoppel against the stepparent (as was suggested by the chambers judge in this case).

[41] Given the children-first perspective of the Guidelines (see D.B.S., supra, at para. 43), primacy should be given to the children's standard of living. Where for example the stepparent provided a standard to the children during the period of cohabitation that was materially higher than that which the natural parents can provide by means of their Guidelines amounts, a court might find it appropriate to make an order against the stepparent that is designed to provide the higher standard, or something approximating it, on top of the other parents' support. However, where the 'piling' of Guidelines amounts would result in a standard beyond one that is reasonable in the context of the standard the children have previously enjoyed, such a 'windfall' or wealth transfer (see Francis v. Baker, supra, at para. 41) is unlikely to be appropriate. At the other end of the spectrum, where the three (or more) parents' Guidelines contributions together are needed to provide the children with a reasonable standard of living, then both the stepparent and the non-custodial parent(s) may well be required to pay full Guidelines amounts. Or, where one of the natural or adoptive parents is not present or is unable to pay any support, the stepparent may well have to pay his or her full table amount. The Legislature has left it to the judgment of trial and chambers judges in the first instance to fashion orders that are appropriate under s. 5. At the same time, the Guidelines system is not thereby jettisoned in favour of a 'wide open' discretion. The inquiry must, like the Guidelines themselves, focus on the children and their needs.

[42] In this case, the income levels of the father and stepfather were not very different. When the stepfather was supporting the children, the father was sharing custody and was therefore not expected to contribute funds to the mother for the children's care. Now, the natural parents are able to provide a quite comfortable standard of support the father by paying his Guidelines amount and the mother by providing her presumed contribution as custodial parent. The chambers judge reasoned that the mother's expenses were slightly more than her Form 89 had indicated about $2,570 per month from May 1, 2006. In this, he has not been shown to be wrong. Where he erred was in approaching the natural father's obligation as a secondary one, losing sight of the non-discretionary obligation created by s. 3. If the chambers judge had factored in the Guidelines obligations of the natural parents, which come to a total of $2,210 per month, he would have been left with a shortfall of $360 per month. If the stepfather had been ordered to top up this amount, the children would have a more than a fair standard of support and the other requirements and objectives of the Guidelines would have been met.

[43] I would allow the appeal on the basis that the chambers judge erred in his approach to the determination of the stepfather's obligation under s. 5 of the Regulation and the father's obligation under s. 3, and in considering factors that do not come within the wording of s. 5.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4


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