A recent BC Supreme Court common law trust and property claim and step parent child support case Hall v. Becker explains nicely how a common law trust claim and property claim work. It also analyses the duty at BC law of a BC step parent to pay BC child support and considers the duty of both the natural father and step parent to pay child support in a case where the mother has re-partnered. A step parent is liable if married to the natural parent OR if the parties lived in a marriage like relationship for a period in excess of two years and if the step parent has made any contribution to that child for more than 1 year and the claim is brought within 1 year of the last contribution for the benefit of the child.
BC constructive trust claims require the claimant to prove, enrichment to one spouse, deprivation to the other ands an absence of a legitimate reason why no award should be made for this enrichment. I often tell my clients it is a cost benefit analysis which requires the claiming party to prove they gave more than they got. Awards in common law relationships are commonly less than a married person would receive upon marriage breakdown.
To read more see the extracts I provided below and if you have any questions call me Lorne MacLean at 604 602 9000.
THE TRUST CLAIM SUMMARY
The issue of unjust enrichment
[30] The plaintiff bases her claim for a declaration of a constructive trust, on the allegation that the defendant has been unjustly enriched by her contributions to the property, both direct and indirect. Accordingly, the main issue is whether the plaintiff has established a cause of action for unjust enrichment. The plaintiff relies on proof of unjust enrichment in order to rebut the presumption created in favour of the defendant by s. 23(2) of the Land Title Act. That statute creates the presumption that the defendant, as the sole registered owner, owns the whole of the legal and beneficial interest in the property.
[31] A claimant may prevent the application of the statutory presumption by proving that it would be contrary to an agreement between the parties or the intentions of the parties to uphold the registered title, and that if the title is upheld, there would be unjust enrichment to the other party at the claimant’s expense. See Lindquist v. Waring 2007 BCSC 205 (Bruce J.) at para 49.
[32] It is well known that, in order to establish a cause of action for unjust enrichment, the plaintiff must prove three essential elements, namely:
a) That she conferred benefits on the defendant by making contributions to his real or personal property, which amounted to an enrichment;
b) That she incurred a corresponding deprivation in the sense that she was not compensated (or not adequately compensated) for her contributions; and
c) That there is no juristic reason why the plaintiff should not be compensated.
See generally Peter v. Beblow, [1993] 1 S.C.R. 980.
[33] It is the intention of the parties at the time the property was purchased that is generally most relevant. See Skender v. Skender 2005 BCSC 418 (Dorgan J.) at paras. 12 – 17; Lindquist v. Waring at para 52. Both monetary and non-monetary contributions of a claimant towards the acquisition, maintenance and improvement of the property in question must be assessed in deciding whether the claimant has established entitlement to a share of the equity in the property. See Lindquist v. Waring at para. 60.
THE STEP PARENT CHILD SUPPORT SUMMARY
Should the defendant be required to pay child support to the plaintiff for Kaitlyn, and if so in what amount and from what commencement date?
[97] The plaintiff never sought child support from Kaitlyn’s father who deserted her and the children in 1997. She explained that she did not know where he went and that she had never seen or heard from him since.
[98] The plaintiff lived in a common-law relationship with another man in Rocky Mountain House for about four years. That relationship ended approximately two years before she commenced her relationship with the defendant in November 2004. The plaintiff never sought child support for either of her daughters, from that man.
[99] As mentioned, the defendant concedes that he was a parent‚Äù to Kaitlyn so that the plaintiff is entitled to apply for a child support order against him under the Family Relations Act. The defendant’s first position is that his income is not quite $9,000, and so the child support guidelines do not require him to pay anything for the support of Kaitlyn. In effect he says that his guideline income is only about $4,400.
[100] In his financial statement sworn September 22, 2009, the defendant also claims that his monthly expenses are $1,897 ($22,764 annually). He testified that he has had to cash in some of his RRSPs in order to make ends meet. According to his financial statement, he cashed in a total of $42,111 in RRSPs. I would describe his claimed expenses as being conservative, except for the $700 per month payment on a line of credit bank debt. That debt was not explained in the evidence.
[101] The defendant testified that he has been working part time as a school bus driver and has the status of spare driver. He said that as of the time of trial in early October, he had only worked about 46 hours in this employment, since school started in September 2009. In his income tax return for 2008, the defendant reported employment income of $32,574.31 (he worked at the mine until May 14, 2008), other income of $1,784.52 and RRSP income of $8,631.66. He reported gross business income of $36,928.04, but reported a net business loss of $4,374.35. With the inclusion of his Workers‚Äô Compensation Board pension payments of $961.75, the defendant’s total income was reported as being $39,577.89 for 2008. He claimed a refund on taxes of $2,741.81.
[102] It was submitted on behalf of the plaintiff that the defendant is intentionally under-employed, and that substantial income should be imputed to him. The defendant testified that he was unable to continue operating heavy equipment for more than a few hours at a time. He further stated that he could not work at other employment during the summer months because all of his time was required to operate the business of Sunny Bluffs. In view of the defendant’s work history, I accept his evidence on these points.
[103] I am not satisfied that the defendant is intentionally under-employed. However, I do not accept that $9,000 is a fair estimate of the defendant’s income which is available to pay child support. It must be remembered that the defendant obtains considerable financial benefit from the revenue received from operating the Sunny Bluffs business. In all of the circumstances, I find that the defendant’s guideline income for child support purposes should be set at $20,000. If the guidelines are strictly applied, that would require a monthly payment of $180 for child support.
[104] In his alternative position, the defendant relies on s. 5 of the Guidelines which, when applied to British Columbia, states:
5. Where the person against whom a maintenance order is sought stands in the place of a parent for a child, the amount of a maintenance order is, in respect of that person, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.
[105] The defendant pointed to the facts that the plaintiff had never claimed child support for Kaitlyn from her natural father or from her previous step-father, that the parent-child relationship between him and Kaitlyn was relatively short and that there has been no relationship between them since the separation on July 2, 2008. As a consequence, it is argued that the presumptive rule (i.e. that the amount of a child support order will be the amount set out in the Child Support Table) should not be applied to the defendant. Counsel for the defendant relied on the case of H. (U.V.) v. H. (M.W.) 2008 BCCA 177, and argued that the court had a broad discretion to reduce the amount of child support payable by a step parent, even down to zero. It was further argued (I think correctly) that this case established or reaffirmed the following principles:
a) The biological father of a child has a continuing obligation to support that child by paying the amount required by the guidelines, notwithstanding the availability of support from a step father (see paragraph 34); and
b) The natural father’s child support obligation is primary, and not secondary to the obligation of a step father (see paragraph 38).
[106] Based on paragraph 33 of H. (U.V.) v. H. (M.W.), counsel for the defendant further argued that the plaintiff should not be permitted to shift the burden of child support from Kaitlyn’s biological father onto the defendant. Although this point was not clearly developed, I understood counsel to mean that the plaintiff is required to prove that Kaitlyn’s natural father is unable to pay child support to the plaintiff in the full amount required by the guidelines, before the court should order the defendant to pay support in the guideline amount. It was further contended (by implication) that the plaintiff should be required to justify her failure to pursue Kaitlyn’s previous step-father.
[107] The plaintiff testified that Kaitlyn’s father deserted the family and disappeared. It is true that she did not claim that she had searched for him or tried to obtain child support from him, but I accept her evidence that she does not know where he is, and I infer that it would be very difficult to locate him or to subject him to the jurisdiction of this court. No adequate explanation was given by the plaintiff for failing to seek child support against her previous common-law partner (and it is now too late to do so). The plaintiff did not suggest that he was incapable of paying child support. But due to the passage of time, and the plaintiff’s failure to make a claim against him, Kaitlyn’s previous step father no longer has a legal duty to support her.
[108] At paragraph 41 of H. (U.V.) v. H. (M.W.), Newbury J.A. was discussing the possibility that children might obtain a windfall‚Äù if more than one person was required to pay the full table amount required by the guidelines. It was said that a child’s standard of living might, in some cases, result in child support orders that collectively exceeded the full table amount. Madam Justice Newbury also made this statement:
Or, where one of the natural or adoptive parents is not present or is unable to pay any support, the step parent may well have to pay his or her full table amount.
[109] Kaitlyn’s natural father is not present‚Äù in this action, but his absence is explained. I conclude that no good reason has been shown to depart from the guideline amount of child support.
