A.E.F. v. J.B., 2018 BCPC 286

Citation: A.E.F. v. J.B. 2018 BCPC 286 Date: 20181106 File No: 17211 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.E.F. APPLICANT AND: J.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: A.E.F. Appearing on their own behalf: J.B. Place of Hearing: Kamloops , B.C. Date of Hearing: October 11, 2018

Date of Judgment: November 6, 2018 [ 1 ] This is an application by A.E.F. for retroactive child support dating back to the date of the birth of the child, C.A.B., born September 21, 2017. The parties are agreed that they did not live together during their relationship. They also agree the date of separation was April 3, 2018. Finally, there is no dispute that the appropriate income to be used for J.B. is the same as was used to fix ongoing child support, being $42,971 per annum.

The original order for child support does not provide for an annual exchange of financial disclosure, but does allow for child support to be subject to a further order of the court. This is not an issue before me, although J.B.’s actual income was a subject of some dispute. [ 2 ] The issue that is before me is whether A.E.F. can claim child support for the period of time when she was in a relationship with J.B., but not living together, following the birth of their child. Both the Family Law Act and the Federal Child support Guidelines govern when child support is payable.

In order to determine whether child support can be claimed in the circumstances before me, it is important to look at the wording as well as the purpose of the legislation.

Section 1 of the Federal Child Support Guidelines identifies its objectives as: 1 The objectives of these Guidelines are (

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation … [ 3 ] Section 149(2) identifies those who may make an application for child support. Under s. 149(2)(

a) such an application may be made by a child’s parent or guardian. There is no specific requirement stated that the parent or guardian be separated from the person from whom payment is sought. However, guardians are often persons, other than a parent, who have the charge of the child. Presumably this is to permit guardians who are not residing with parents to seek child support from the parents. Where the parents are concerned, the overarching purpose of the Act and Guidelines must be considered. [ 4 ] There are other sections of the Family Law Act which also assist in

interpretation. Under s. 148, agreements respecting child support are only enforceable if made after separation or when the parties are about to separate. Section 149(3) specifically bars a person from suing a step-parent for child support unless the step-parent is separated from the child’s parent. This means that parents seeking child support for a child must be separated in order to make that claim.

It is a logical and plain reading of the section. [ 5 ] When the specific wording of the Guidelines is viewed in conjunction with the plain meaning of ss. 148 and 149, I can only conclude that this claim for retroactive child support for a period of time while the parents were in a relationship but living separately cannot be made. As a result, A.E.F.’s application for retroactive child support is dismissed. __________________________ S.D. Frame Provincial Court Judge