M.T.M. v. M.D.M. Date:, 2015 BCPC 166

Citation: M.T.M. v. M.D.M. Date: 20150611 2015 BCPC 0166 File No: 1445147 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M. T. M. APPLICANT AND: M. D. M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Appearing on their own behalf: M. T. M. Appearing on their own behalf: M. D. M. Place of Hearing: Prince George , B.C.

Date of Hearing: December 8, 2014 Date of Judgment: June 11, 2015 [ 1 ] The Applicant, Ms. M., seeks child support for her daughter S. M., born [omitted for publishing], who is currently 15 years old. S. is the step-child of Mr. M. Mr. M. says that such an Application is out of time because it is made more than one year after the last date on which he contributed to the support of S., which is, he says, when the parties separated in 2011. Ms. M. says he was in fact paying a small amount of child support for S. ever since separation. BACKGROUND [ 2 ] Mr. M. and Ms. M. moved in together in 2001. Ms.

M. already had three children, including S., from previous relationships. When they began residing together, S. was 14 months old. Thereafter, Mr. and Ms. M. had two children together, H. and J. The parties separated in May 2011, commenced divorce proceedings in 2013, and were finally divorced on February 5, 2014. Throughout the relationship, S. lived partly with her biological father and partly with her mother. Her biological father paid child support for S.

In the spring of 2014, S. decided that she did not want to continue going back and forth between her father and her mother and came to live full time with her mother. I understand that in the spring of 2014, Mr. M(2), S.’s biological father, retired and as a result had a reduced income and therefore began paying a lesser amount of child support for S. Ms. M. filed her Application for child support for S. from Mr. M. on June 16, 2014. [ 3 ] The parties entered into a Separation Agreement dated June 30, 2011. That Agreement declared H. and J. to be the children of the marriage and provided that Mr.

M. would pay the sum of $800.00 per month in child support for H. and J. S. was not named in the Separation Agreement nor was any amount designated for her support. The parties entered into another Separation Agreement on October 26, 2012 which also named only H. and J. as the children and provided the same sum for their support. The Joint Family Claim for divorce signed by the parties June 19, 2013, which was appended to Ms. M.’s Affidavit filed June 18, 2014, also provides that H. and J. are the children of the marriage and provides that Mr. M. pay $800.00 per month for their support.

The Final Order of divorce has the same provisions. There is no dispute that Mr. M. has paid the child support as provided. In September 2013, J. moved in with his father and the parties adjusted the child support payable by Mr. M. to reflect that fact. [ 4 ] There was no mention of support for S. in any of the documents provided in evidence in this matter until April 29, 2014. On that day, by email, Mr. M. informed Ms. M. that he had obtained employment at higher pay and unilaterally increased the child support he was paying for H. to $460.00 per month. Ms.

M. then requested that he pay $500.00, referring to “a little extra for S.” When Mr. M. declined to do so, Ms. M. informed him that the child support she was receiving for S. from her biological father was reduced due to his retirement. She wrote that she would “seek advice” if he did not agree. The matter then found its way before the Court. POSITION OF THE PARTIES [ 5 ] Ms. M. says that Mr. M. did in fact pay child support for S., because the $800.00 amount included, she says, a portion “in lieu” of paying child support for S. in the amount of $124.00. She arrives at that figure on the basis that Mr.

M.’s obligations under the Federal Child Support Guidelines for two children would in fact have been less than $800.00 and that it was “tacitly understood” that the difference was for S. [ 6 ] Ms.

M. says she had mental difficulties since 2005 and that she really did not know what she was doing when she signed the Separation Agreements - she claims not to even recall the June 2011 one, although she does admit her signature appears on it; neither of them got legal advice regarding their Separation Agreement or their divorce, although she has obtained legal advice in the past regarding other legal matters including those involving S.’s father. Ms. M. did not say that she did not understand the Agreements (which were limited to the other two children only); she just says that “in his heart” Mr.

M. knows he was paying to support S. also. [ 7 ] Mr. M. acknowledges that although Ms. M. had been diagnosed with a mental disability, he had no concerns about her ability to understand legal documents and processes and says that she did so very competently, getting legal advice as needed on other matters, and representing herself well also. She agrees with that assessment. [ 8 ] Mr. M. says that the Agreements entered into between the parties represent exactly what the parties agreed to: child support for H. and J.

He says the difference between the Federal Child Support Guideline amount and the agreed upon sum of $800.00, was to cover various sundries that Ms. M. may have had to pay (school lunches, activity fees, etc.) for H. and J. Mr. M. says that he has not paid any child support for S. since he and Ms. M. separated in 2011. Moreover, when Ms. M. was embroiled in litigation over support payable by the biological father for S., she asked Mr. M. to write a letter saying he paid no support for S. and he did so. He says that letter is true. That letter is appended as Exhibit “E” to the Affidavit of Ms.

M. filed June 18, 2014. [ 9 ] The issue to be decided is whether Mr. M. has in fact contributed to the support of S. within one year prior to the filing of the Application before the Court. Mr. M. is clearly S.’s stepparent. [ 10 ] With respect to the obligations of stepparents, s. 147(4) provides that:

(4) A child's stepparent does not have a duty to provide support for the child unless (

a) the stepparent contributed to the support of the child for at least one year, and

(

b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child. [ 11 ] There are many legally binding documents existing between the parties, including Separation Agreements and Court Orders.

Both Separation Agreements provided that the agreement is intended to be: “a final settlement of the issues of custody, access, guardianship and support” and “This agreement and everything contained within shall continue to govern the relationship between the husband and the wife notwithstanding subsequent divorce, dissolution or annulment of the marriage, by any order or instrument.” [ 12 ] There is no mention in any of the Separation Agreements of S. as a child of the marriage, or child support for S., or indeed any mention of S. at all. [ 13 ] There is a letter from Mr.

M., dated May 30, 2013, confirming that Mr. M. does not provide any child support for S. or for any of Ms. M.’s biological children. This letter was prepared at the request of Ms. M. for use in her claim for child support from S.’s father. [ 14 ] It was not until S. moved in with her mother full time and the child support paid for her from her biological father was reduced that there is any suggestion from Ms. M. that Mr. M. pay support for S. Ms. M.’s assertion that Mr.

M. “knew in his heart” that the child support he was paying tacitly included an amount for S. stands in stark contradiction to all of the legally binding documents prepared between and relied on by the parties. [ 15 ] I do not accept that Ms. M. did not understand the Separation Agreements nor the Divorce Order, nor does she make that claim. I am of the view that if there had been an intention by the parties that Mr. M. pay child support for S., it would have been mentioned in those documents. It was not and there is no other evidence before me that supports Ms. M.’s contention to the contrary. The fact that Mr.

M. has paid a round number of child support for H. and J. that was slightly higher than the minimum required by the Federal Child Support Guidelines does not support, in my view, the contention that the additional amount was support for another child. I note the difference of $123.00 per month is far below the guideline designated amount which would have seen an additional $868.00 payable for the third child (subject to a reduction for the support payable by S.’s father). It makes no sense to me that Mr. M. and Ms.

M. would have agreed that he pay support for S., but then agree to an amount far lower than the Guidelines provide and say nothing about it in any of their Agreements. [ 16 ] I prefer the explanation given by Mr. M.: that it was an additional amount intended to cover school lunches, activity fees and such sundries. That explanation accords with the common sense and experience of any parent who has been drained of all the cash in their wallet by the time the children have gathered their lunches and book bags and headed out the door to school. [ 17 ] It follows that I am not persuaded that Ms.

M. has not met the burden of satisfying me that Mr. M. has contributed to the support of S. in the year previous to this Application, as required by s. 147 of the Family law Act . I find that he has not contributed to her support since the parties separated. [ 18 ] It follows that Ms. M.’s Application for child support for S. is dismissed. ________________________ S. K. Keyes Provincial Court Judge Province of British Columbia