M.C.P. v. W.C.F.M.C.P. v. W.C.F. Date:, 2015 BCPC 6

Citation: M.C.P. v. W.C.F.M.C.P. v. W.C.F. Date: 20150119 2015 BCPC 0006 File No: F009998 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.C.P. APPLICANT AND: W.C.F. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Applicant: S.E. Morse Counsel for the Respondents: K.W. Wince Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: May 16 and September 26, 2014 Written Submissions of the Applicant: October 20, 2014 Written Submissions of the Respondent: November 14, 2014 Written Reply Submissions of the Applicant: December 22, 2014 Date of Judgment: January 19, 2015 [ 1 ] The applicant M.C.P. (“Mr. P”) and the respondent W.C.F. (“Ms. F”) were parties to a common law spousal relationship of a decade’s, more or less, duration. It ended, by Ms. F’s recollection, on February 1, 2005. By Mr. P’s recollection the disengagement was more gradual and was not complete until the beginning of March, 2007.

Whichever of the parties’ recollections is correct in this latter regard, they do not disagree that at the latest the parties were living separate and apart, permanently, by March 1, 2007. [ 2 ] Ms. F brought two children into the relationship with Mr. P from a previous marriage—a son born in 1989 (“Child M.F.”) and a daughter born in 1991 (“Child J.F.”) (collectively, the “Stepchildren”). A third child, a son, was born to Mr. P and Ms. F in 1996 (“Child M.P.”). [ 3 ] In other, earlier proceedings the biological father of the Stepchildren had been ordered, as long ago as April of 1993, to pay child support to Ms.

F for the benefit of the Stepchildren. The latest child support order in that regard that was placed before the court was pronounced in 1998, well into the time of Ms. F and Mr. P’s cohabitation. That order stipulated that the Stepchildren’s biological father continue to pay child support for them in the amount of $614 per month. [ 4 ] In these proceedings Ms. F asserts, inter alia , a cross-claim against Mr. P for retroactive child support regarding the Stepchildren. Mr. P however argues that, as a threshold point, the court must first consider whether Ms.

F’s cross-claim was brought within the time prescribed therefor under the governing family law legislation. He contends it was not and that this ends the inquiry, arguing that Ms. F has brought her cross-claim too late for it to be maintainable. Counsel for both Mr. P and Ms. F have filed written submissions so that the court might address that threshold issue first. [ 5 ] It is common ground that Mr. P has paid no child support for the Stepchildren since the parties separated permanently, at the latest by March 1, 2007 (although he has paid some child support to Ms.

F for Child M.P.). [ 6 ] The chronology relevant to the threshold limitation issue is as follows: (

a) Mr. P and Ms. F lived together for over 10 years and during that period they made provision together for the daily needs of the Stepchildren (and, from and after his birth in 1996, for Child M.P. as well); (

b) Mr. P stopped supporting and maintaining the Stepchildren when he and Ms. F ceased living together permanently—at the latest, on March 1, 2007; and (

c) Ms. F first asserted a claim against Mr. P seeking, inter alia , child support for the Stepchildren by way of a cross-claim she filed on July 16, 2010. That cross-claim appears in the Reply she filed to an Application that Mr. P brought on June 24, 2010 seeking to remove her as a beneficiary under his dental and extended health coverage. [ 7 ] Years passed between the filing in 2010 of Ms. F’s cross-claim for child support for the Stepchildren and the taking of any steps to pursue it. The cross-claim finally came before the court for scrutiny as a result of a Notice of Motion that Mr.

P filed on November 26, 2013, not long after he became aware that Ms. F had registered one of two separation agreements with the Family Maintenance Enforcement Program and his discovery that that program considered him liable to her for arrears of child support dating back to 2007 for not only Child M.P. but also for the Stepchildren. (Unusually, one of the subject separation agreements creates child support obligations and the other does not. The authenticity of those documents is a matter of controversy between the parties.) In his motion—the one currently before the court—Mr.

P has accordingly sought a determination as to whether arrears of child support for the Stepchildren are, indeed, owing by him to Ms. F. The first issue that has arisen is, as I have noted, the issue of whether Mr. P has a defence to Ms. F’s cross-claim based upon a limitation provision found in the relevant legislation. [ 8 ] Under s. 147 of the family law statute now in force—the Family Law Act , S.B.C. 2011, c. 25—any claim for child support made against a stepparent must be brought within a one-year time window. Subsection 147(4) provides: “

(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 .” (emphasis added) [ 9 ] The same requirement existed under the predecessor legislation, the Family Relations Act , R.S.B.C. 1996, c. 128 (now repealed), in which the definition of a “parent” potentially liable to pay child support read as follows: “‘parent’ includes (

a) a guardian or guardian of the person of a child, or

(

b) a stepparent of a child if (

i) the stepparent contributed to the support and maintenance of the child for at least one year, and (ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child;” (emphasis added) [10] It is not disputed that Mr. P contributed to the support and maintenance of the Stepchildren over the course of the decade or soduring which he cohabited with Ms. F. That all came to an end, at the latest, on March 1, 2007 when the parties separated permanently.

Similarly, it cannot be gainsaid, nor is it, that the first assertion by Ms. F of any claim against Mr. P for child support came more thanthree years (at the least) after the parties’ separation, namely, on July 16, 2010, when she filed her Reply to Mr. P’s motion to have herremoved as a beneficiary under his employee benefits plan. [11] Was the filing by Ms. F of her cross-claim for child support on July 16, 2010 the event that marks the time when a “proceeding”was “started” against Mr. P seeking child support for the Stepchildren as those words are employed in s. 147?

In my respectful opinionit was. [12] Dictionary

definitions for the noun “proceeding”—both general in nature and specific to the law—abound. Most if not all ofthem carry the same thread of meaning, namely, that a “proceeding” constitutes an action, claim, cross-claim, petition, application, cross-application, motion or other such originating process taken in a court or other dispute resolution tribunal aimed at securing a resolution oradjudication of a dispute. Ms. F did not seek a court order compelling Mr.

P to pay child support for the Stepchildren until she filed hercross-claim in July 16, 2010, more than three years at least after the parties separated permanently (and Mr. P ceased providing for theStepchildren). The statutory scheme that has prevailed in this province at all material times has always required that such a step be takenwithin one year of when a stepparent like Mr. P last contributed to the support and maintenance of the stepparent’s stepchildren. [13] I note, parenthetically, that in approaching the relative timing of when Mr.

P stopped providing for the Stepchildren and thecommencement of a proceeding by Ms. F to assert a claim against him for child support for them, I have—given the uncertainty—usedthe date regarding when Mr. P stopped supporting and maintaining the Stepchildren (March 1, 2007) that is most generous to Ms. F forthe purposes of this motion. The use of that date establishes that Ms. F’s cross-claim was brought two years and five months late. Had Iaccepted Ms. F’s recollection that Mr.

P stopped supporting and maintaining the Stepchildren on February 1, 2005, I would haveconcluded that her cross-claim was brought even more significantly out of time, that is, four years and six months late. [14] I am aware that both of the separation agreements which have surfaced in the course of this dispute have been filed with thecourt. The earlier one, dated March 15, 2006, purports to cast no child support obligations upon Mr. P at all. It was filed on April 26,2006. However, the later separation agreement, dated September 27, 2006, does purport to cast an obligation upon Mr.

P to support theStepchildren (and Child M.P.). It was filed on May 28, 2008. [15] The mere filing of a separation agreement with the court cannot, in my opinion, constitute the “starting” of a proceeding. Onthe language of s. 148(2) of the Family Law Act such filing makes the terms of such an agreement “enforceable” and nothing more. Abowl of pasta may be described as being edible. One can imagine that a previously unread poem by Rod McKuen might be said, bysome, to be readable.

However, until someone actually eats the pasta or reads the poem, the benefits of both to the eater and the reader,respectively, remain unrealised potential. Similarly, rights conferred by a filed and therefore enforceable separation agreement remainfunctionally dormant if no enforcement action is taken against the allegedly defaulting party.

Steps must be taken to enforce those terms—that is, a “proceeding” must be “started”—in order that the unrealised potential within the separation agreement might be actualisedand made into something of material benefit to the party who claims to be a beneficiary, directly or indirectly, of the obligation owed bythe party in default. No such steps were taken by Ms.

F until she initiated her cross-claim on July 16, 2010. [16] If I am wrong in this analysis and the mere filing of a separation agreement can be said to constitute the “starting” or“commencement” of a “proceeding” for the purposes of s. 147(2), I note that even that would not avail Ms. F here. The separationagreement in this case that purports to cast child support obligations upon Mr. P was filed on May 28, 2008. That date, too, falls severalmonths past the one year time window for commencing proceedings to recover child support from Mr.

P, as a stepparent, that opened atthe latest on March 1, 2007 and closed on March 1, 2008. [17] In the result, because Ms. F’s cross-claim has been brought against Mr. P outside the one-year time window prescribed underthe Family Law Act and its predecessor legislation for claims for child support against stepparents, that cross-claim must be, and ishereby, dismissed. For similar dispositions in other cases see, for example, Ruiterman v. Ruiterman, (1994) (BC SC),5 R.F.L. (4th) 192 (B.C.S.C.) and, more recently, D.C.D. v. R.J.P.C., [2014] B.C.J. No. 3155 (S.C.).

All arrears, interest and penaltiesthat have accrued in respect of child support obligations that have been purportedly established against Mr. P and recognised by theFamily Maintenance Enforcement Program in respect of the Stepchildren are, consequently, cancelled. [18] To some, this might appear to be a draconian result. However, as Savage J. (as he then was) noted in a different context inCamp Development Corp. v. Greater Vancouver Transit Authority, [2009] B.C.J. No. 1224 (S.C.), aff’d. [2010] B.C.J.

No. 1072(C.A.), “Of course any limitation period it can be argued has a draconian aspect as it forecloses rights” (at para. 77). The casesrepeatedly acknowledge that limitation periods imposed by statute are a reflection of duly considered public policy as expressed throughlegislation: see, for example, Rogers v. Lalonde, [2013] S.J. No. 738 at para. 17ff (C.A.) and Bank of Montreal v. Ricketts, (1990), (BC CA), 44 B.C.L.R. (2d) 95 (C.A.). This is no different in the family law realm than in any other realm of the law.

Stepparents have, at most, a secondary obligation with regard to paying child support for their stepchildren—see U.V.H. v. M.W.H.,2008 BCCA 177 , [2008] B.C.J.

No. 717 (C.A.)—and, beyond the policy rationale of encouraging timely action to vindicaterights that is manifest in all limitation periods, it is a reasonable inference that the policy rationale underlying the one-year limitationfound in s. 147(4) of the Family Law Act regarding child support claims brought against stepparents shares something with theconstraining factors governing retroactive child support claims that were articulated by Bastarache J. in his majority decision in D.B.S. v.S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231 at paras. 100-104 and 114-116.

[ 19 ] In light of the conclusion I have reached on this dispositive threshold issue I do not find it necessary to consider the other preliminary arguments that have been advanced by counsel on behalf of Mr. P and Ms. F in this matter. [ 20 ] Order accordingly. ______________________________ Thomas S. Woods, P.C.J.