When does a BC StepParent Have to Pay Child Support?
An important stepparent child support decision appeal involving competing obligations between a biological father and a step parent was recently won by Lorne MacLean Q.C., and James Cudmore. Stepparents are routinely liable for support under either of the Divorce Act (if married) or the Family Relations Act of BC. While biological parents have been held to have the primary duty to support their child, stepparents will also be called upon to contribute. A stepparent’s contribution is often less than a full guideline support payment and often for a shorter duration than that of the biological parent.
Our case involved a good samaritan stepparent who supported the step child as his own and a biological father who had a limited role in the child’s life before the litigation started between our step parent father and the child’s mother. In response to the claim for support against our client we claimed support from the biological father arguing that there was no “free pass” to a biological parent and that he should pay his fair share after years of paying no child support. We also sought a paternity test which confirmed the biological father was in fact Mr. Kovacs.
As a result of our strategy, the wife agreed to drop her support claim against our client and we proposed an agreement whereby our client would be absolved of any further liability because the biological father would now fully meet the child’s support needs with the mother. The biological father claimed our client was wrong to make any claim against him after the tentative settlement with his wife which had not yet been finalized. At trial the Judge felt our claim against the biological father was without merit and dismissed our client’s claim and made an unusual order of special costs. Knowing there was appellate case law which supported our position and that our position was at all times correct and appropriate we appealed for our client. The BC Court of Appeal fully agreed with our position and reinstated our claim as proper and held the judge was wrong to dismiss our client’s claim and clearly wrong in awarding special costs. Contact us if you face a similar child support situation.
Here is a shortened extract of our winning result:
b) Did the trial judge err by dismissing Mr. Embree’s claim against Mr. Kovacs?
[36] It is useful to begin by setting out the legislative framework that governs the child support obligations of Mr. Kovacs as R.’s biological father, and Mr. Embree as his stepfather.
[37] The Family Relations Act, R.S.B.C. 1996, C. 128,and the Divorce Act, R.S.C. 1985, c. 3, both impose an obligation on a non-custodial parent to pay child support …
[39] Because Mr. Embree and Ms. Johnston were married, his potential liability to pay child support for R. arose under the Divorce Act. R. was a “child of the marriage” under that Act, and Mr. Embree, was a person standing in the place of a parent to R. under s. 2(2). He was therefore potentially liable to pay Guideline support for R. under s. 15.1.
[40] As well, both Mr. Embree and Mr. Kovacs were potentially liable to pay child support for R. under the Family Relations Act,
[41] Section 88 of the Family Relations Act, which imposes the obligation to pay child support, provides that an order for child support may be made against more than one parent:
88 (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.
[42] Section 91 of the Family Relations Act provides that any person may apply for an order for child support on his own behalf, or on behalf of a child. This right has been interpreted as limited to those who have a connection with or interest in the child’s welfare: Kasper v. Mundy (1993), 81 B.C.L.R. (2d) 256 at para. 15 (S.C.).
[43] Thus, if Mr. Embree was liable to pay support for R., and fell within the definition of a stepparent under s. 1(1)(b) of the Family Relations Act, he was entitled to apply for an order under ss. 88(2) and 91 that Mr. Kovacs also pay child support for R.
[45] Mr. Embree argues the chambers judge erred in finding there was no basis in fact or law for his claim against Mr. Kovacs. He says Ms. Johnston, in her notice of family claim, clearly sought an order against him for child support and, in issuing a counterclaim against Mr. Kovacs, he followed the accepted procedure for a stepparent to bring a biological parent into proceedings in which child support is in issue. In support, Mr. Embree points to H. (U.V.) v. H. (M.W.), 2008 BCCA 177, 86 B.C.L.R. (4th) 199, a case in which this Court, at paras. 38-40, endorsed the view that when support is sought from a stepparent the natural parents should be before the court as well. Newbury J.A., writing for the Court, found that a natural parent bears the primary obligation for child support under s. 3 of the Guidelines, and a stepparent’s obligation under s. 5 should only be considered after the responsibility of the biological parent has been determined.
[47] In response, Mr. Kovacs concedes he was initially a proper party to the counterclaim, but submits that by the time he brought his application for dismissal Mr. Embree had no remaining claim against him. Once Ms. Johnston agreed to abandon her claim for child support for R., Mr. Embree’s claim against him was limited to retroactive support. His standing to make that claim as a stepparent under s. 1(1)(b) of the Family Relations Act had expired, however, because he had not contributed to R.’s maintenance and support in the year before Ms. Johnston commenced her claim. Thus the chambers judge properly found there was no basis in fact or law for Mr. Embree’s claim against Mr. Kovacs.
[48] For the following reasons I am persuaded the circumstances before the chambers judge did not support her view that Mr. Embree had no remaining claim against Mr. Kovacs.
… at the time of the hearing Mr. Kovacs remained potentially liable as R.’s biological father for a re-examination of his obligations under the Family Relations Act and s. 3 of the Guidelines,and Mr. Embree similarly had potential obligations as a stepparent under the Divorce Act and s. 5 of the Guidelines. It was therefore incumbent on the court, before dismissing Mr. Embree’s claim against Mr. Kovacs, to conduct the inquiry envisioned in H. (U.V.), and determine whether the arrangements reached by the parties for R.’s support complied with the Guidelines. If they did not, the settlement could not be approved.
[55] I am therefore satisfied the chambers judge erred in finding there was no basis in law or fact for Mr. Embree’s counterclaim against Mr. Kovacs after August 17, 2011, and in dismissing that claim. Until the court found that R.’s right to child support under the Guidelines was met by the arrangements reached by the parties, both Mr. Embree and Mr. Kovacs remained potentially liable for child support.
[56] I would therefore set aside the chambers judge’s dismissal of Mr. Embree’s counterclaim and reinstate it to permit review of any agreement on child support.
57] It follows from that conclusion that I would also accede to this ground of appeal, and set aside the order for special costs. While I appreciate it was a discretionary order, it would be clearly wrong to let it stand: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 at paras. 26-27, [2004] 1 S.C.R. 303. By September 26, 2011 the parties had apparently reached an agreement on child support. It remained to formalize it by submitting a consent order to the court for consideration and approval, or placing it before the chambers judge for that purpose, in accord with the principles established in H. (U.V.). Instead, Mr. Kovacs sought and obtained an order for special costs in circumstances that did not merit it.
[58] I conclude the trial judge erred in finding Mr. Embree’s conduct justified an order for special costs.Conclusion
[59] I would allow the appeal, and set aside the order dismissing Mr. Embree’s counterclaim against Mr. Kovacs and awarding special costs to Mr. Kovacs.
[60] I would dismiss the cross appeal.
If you have a step parent and biological parent child support dispute in BC or Alberta call us toll free now at 1 877 602 9900.
