D.J. & K.J. v. C.K. & T.K. Date:, 2013 BCPC 197

Citation: D.J. & K.J. v. C.K. & T.K. Date: 20130722 2013 BCPC 0197 File No: 14462 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: DJ and KJ APPLICANT AND: CK and TK RESPONDENT RULING OF THE HONOURABLE JUDGE BIRNIE Counsel for the Applicant: J. Yuen Counsel for the Respondent: K. Pollack Place of Hearing: Smithers , B.C.

Date of Hearing: March 27, 28 and April 30, 2013 Date of Judgment: July 22, 2013 [ 1 ] This is a “pre-hearing” application to address the effect of the Family Law Act on the J’s application under the Family Relations Act to vary the child maintenance payable for the support of the child JJ by her step father Mr. K.

The question to be answered is whether the Family Law Act has removed the court’s authority to vary a valid child support order made prior to its enactment when the court no longer has authority to make the same order after its enactment. [ 2 ] The Family Law Act repealed and replaced the Family Relations Act on March 18 th 2013. Any proceedings commenced under the Family Relations Act continue under the new legislation. Under the Family Relations Act it was possible to seek an order for child support from a step-parent, (Mr. K.), who was living with the biological parent , (Mrs. K.).

This was the basis for the consent Order of January 6, 2011 whereby Mr. K. is required to pay maintenance in the amount of $150.00 per month to Mr. J. for the child JJ. [ 3 ] Under the Family Law Act , (s. 149(3)), a child support order may be made against a step-parent only if that person is separated from the biological parent .

The Respondent’s Argument: [ 4 ] The Respondent argues that as of March 18, 2013 when the Family Relations Act was repealed and replaced by the Family Law Act no child support order, including any variation of an existing order, may be made against a step-parent if that person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. [ 5 ] They rely on s. 259 of the Family Law Act which provides for the repeal of the Family Relations Act and section 4 (2) of the

Interpretation Act which states: An enactment that is repealed and replaced ceases to have effect at the time the new enactment commences. [ 6 ] The repeal of the Family Relations Act in conjunction with: (

a) the transitional provisions in

Part 13, ( ss. 250 – 256) of the Family Law Act which set out that the only applications brought prior to March 18, 2013 which may continue under the Family Relations Act are those relating to division of property, (

b) the new Family Law Act provisions exempting a step-parent living with a parent from the obligation to pay child support, and (

c) The structure, object and remedial purpose of these Family Law Act provisions, establishes that the plain meaning of the Family Law Act is that a court may not make any order after March 18, 2013, either going forward or retroactively, to vary an existing order which requires a step-parent living with a parent (“SPLWP”), to pay child support. This is because such a variation, whether upward or downward, would be a new order and the Court no longer has any jurisdiction to make such orders against a SPLWP. An existing order could be affirmed or cancelled only. [ 7 ] If the statutory intention is not plain then the principles of statutory

interpretation must be applied and in particular:

a) the presumption against interference with vested rights, and

b) the principle against retroactivity. An application of these principles would result in the same conclusion. [ 8 ] In relation to “plain meaning” the Respondent argues that s. 149(3) of the FLA which states: An order under subsection 1 [ an order for child support ] may only be made against a stepparent if (

a) the stepparent has a duty to support the child under s. 147(4), and (

b) the stepparent and the child’s parent are separated. is remedial in nature. [ 9 ] Prior to its enactment the first reported decision in which support was ordered against a SPLWP under the Family Relations Act was in 2011. This was followed by a second decision in 2012 out of the Supreme Court of British Columbia.

These decisions were clearly anomalies in the history of child support orders and the object of s. 149(3) was to correct this and to clarify that a SPLWP does not have an obligation to pay child support. [ 10 ] When s. 149(3) is considered in the context of the repeal of the Family Relations Act and the immediate effect as of March 18, 2013 of the Family Law Act it only makes sense that the clear intention of the legislature was that no further orders could be made requiring a step parent to pay support for a child if he or she is a SPLWP.

The intention was not for the Family Relations Act to continue to have effect through ongoing variations to pre-existing support orders against a SPLWP.

[11] With regard to the presumption against interference with vested rights, and the principle against retroactivity, counsel for therespondent referred me to the following authorities: 1. Essentials of Canadian Law - “Statutory

Interpretation” by Professor Ruth Sullivan at pp. 191 - 194 2. London Drugs Ltd. v. British Columbia ,[1998]B.C.J. No. 1514(B.C.C.A.) 3. Gustavson Drilling(1964) Ltd. v. Canada (M.N.R.) ,[1977] S.C.R. 271 4. Bennett v. British Columbia,[2009] B.C.J. No. 1955 5. Dikranian v. Quebec ( Attorney General), 2005 SCC 73 , [2005] 3 S.C.R. 530 6. Yao v. Li, [2012] B.C.J. No. 1523 ( B.C.C.A.) [12] She relied on these authorities for the following propositions:

a) The presumption against interfering with vested rights, which finds a statutory expression in ss. 35 and 36 of the

Interpretation Act.R.S.B.C. 1996, c. 238 carries only modest weight,

b) The presumption can be set aside either implicitly or explicitly as long as the intention to do so is clear,

c) Courts must look at all relevant evidence of legislative intent and balance several factors including:

i) degree of unfairness the interference would create, ii) importance of policies implemented by the new legislation, iii) the impact of limiting or delaying the application, and iv) other evidence of legislative intent,

d) A right is vested when it has actually been acquired by a person in concrete form before the legislation at issue was enacted and mustbe: (

i) Tangible and concrete rather than general and abstract, and (ii) Sufficiently constituted at the time of the new statute’s commencement. [13] In this case, while JJ’s right to seek a variation of child support (through her father), was tangible and concrete as of March 18,2013, (since the application was filed prior to that date), it was not sufficiently constituted, since the amount or duration of a variedamount of support, or whether any support would be payable at all as a result of such an application is discretionary and thereforeuncertain. [14] In any event the Family Law Act is clear that no further support orders whether in the form of a variation of an existing order orotherwise may be made.

If the right had vested the legislation’s express intention is to interfere with the right and the presumption istherefore set aside. [15] This does not create a retroactive application of the new statute. The existing child support order is not affected – only theability to vary that order. Analysis: [16] In my view the real question underlying the issue on this application is whether the right to child support includes as a necessaryadjunct, the right of both the payor and the payee to vary that support in accordance with changing circumstances until such time as thesupport obligation ends.

In my view it does. [17] At the heart of the respondent’s argument is the characterization of child support and the variation of child support as twoseparate rights. This approach fails to acknowledge the reality that the latter flows necessarily from the former. The right to claimmaintenance is the essential right.

The right to vary that maintenance 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. [18] This approach to maintenance as a “layered” right or obligation finds support in the decision of the Supreme Court of Canada inD.B.S. v.

S.R.G. ,2006 SCC 37 , [2006] SCJ No. 37, where the Court pointed out that once a maintenance order is made theobligation of the paying parent is to pay support in accordance with his or her income, i.e. to vary the support upward if one’s incomeincreases and the ability to vary support downward either through consent or an application to the Court if one’s ability to earn incomehas been reduced. [19] A maintenance order is the key that opens the door to support payments.

Applications to vary are, in essence, a means to ensurethat an appropriate amount of support flows through the door – an amount which is fair to both the payor and the recipient. The right tovary is an essential component of the right to receive or the obligation to pay child support

[ 20 ] This is the framework within which the respondent’s argument must be considered. Presumption Against Interference with Vested Rights: [ 21 ] This principle of statutory

interpretation has been codified in s. 35 of the

Interpretation Act which states: 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, or (

e) affect an investigation, proceeding or remedy for the right, obligation, penalty, forfeiture or punishment. It applies in the absence of a contrary legislative intent. [ 22 ] The right in question must be a vested right, i.e. both 1) tangible and concrete, and 2) sufficiently constituted as of the date the new legislation was enacted and the old legislation repealed. [ 23 ] In this case JJ’s right to seek a variation of child support payable by Mr. K. met both these tests as of March 18, 2013. This is because there was a valid existing order for child support as of that date.

For the reasons set out above her right to that support includes as a necessary ancillary the right on the part of either party to seek a variation of such an order. Legislative Intent/Plain Meaning: [ 24 ] The legislature is entitled to remove, vary or limit vested rights. However such an intention must be clear either on the plain meaning of the statute or by necessary implication [ 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 language of s. 254, which provides 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 SPLWP 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 overbroad 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 SPLWP 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.

For the reasons set out above, it is not. [ 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 SPLWPs 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. [ 29 ] For these reasons I find the J’s application to vary the maintenance payable by Mr. K. is not barred by the Family Law Act and should proceed to hearing as scheduled.