K.A.L. v. J.P.R. Date:, 2011 BCPC 183

Citation: K.A.L. v. J.P.R. Date: 20110722 2011 BCPC 0183 File No: F11531 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: K.A.L. APPLICANT AND: J.P.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Appearing on their own behalf: The Applicant Counsel for the Respondent: N.J. Harold Place of Hearing: Chilliwack , B.C.

Date of Hearing: May 4 and June 10, 2011 Date of Judgment: July 22, 2011 [ 1 ] The self-represented father applies for child support in an amount as set out in the Federal Child Support Guidelines , SOR/97- 175 [ Guidelines ], and for special or extraordinary expenses. The applicant also claims undue hardship. The application is made against the respondent stepfather of the child. Issues [ 2 ] The parties agree that the court needs to first decide the issue of whether the stepfather is obligated to pay child support when the mother already pays support for the child by court order.

The circumstance that makes this application unique, or at least unusual, is that the mother and stepfather continue to reside together. The respondent stepfather claims that the court has no jurisdiction to make a support order in these circumstances. There is a dearth of case law directly on point. Neither side has provided me with any authorities directly on point on this narrow issue.

The applicant father argues that it would only be fair for the stepfather to pay child support payments. [ 3 ] The applicant also argues that he will suffer undue hardship if the court orders the amount provided for in the tables of the Guidelines and, therefore, seeks a higher amount. The respondent argues that an undue hardship claim is only available to a payor to lessen the Guideline amount and not to the payee to increase the Guideline amount.

The second issue, therefore, is whether a claim for undue hardship is available to the father, the payee, to increase the Guideline amount. [ 4 ] The issue of what the amount of child support would be has not been addressed at this stage, as it is only required if I find that a child support order can be made against the respondent stepfather. Facts as agreed by the Parties [ 5 ] The applicant is the father and primary caregiver of the 10-year-old child. The applicant and the mother of the child have joint

custody and guardianship. The mother has access to the child a minimum of three days per week; and, on alternating weeks, five days per week. I understand the child began living with the father in August 2009. The child, prior to living with the father, lived from the date of his birth with the mother and respondent stepfather. The respondent stepfather is married to the mother.

The stepfather admits that he falls within the definition of “parent” as set out in the Family Relations Act , R.S.B.C. 1996, c. 128 [ FRA ]. [ 6 ] An order of this court was made on July 13, 2010, in which, among other things, the mother was ordered to pay child support in the amount of $326.00 per month. 1. Is the Stepfather Obligated to Pay Child Support? Law [ 7 ] The analysis of this issue must start with the legislated obligation to provide child support. This obligation is found in s. 88 of the FRA : 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. [ 8 ] Parent is defined in s. 1(1) of the FRA : "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; [ 9 ] Section 1(2) of the FRA defines “stepparent”, for purposes of the definition of “parent”, as follows: 1

(2) For the purpose of paragraph (

b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child (

a) are or were married, or (

b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender. [ 10 ] The FRA also sets out in s. 93 that the amount of the child support payments is to be determined by reference to the Guidelines : 93

(1) Subject to the Divorce Act (Canada), a court may make an order on application, or if the court makes or refuses an order for judicial separation or dissolution of marriage or a declaration that a marriage is null and void, requiring a party to the proceeding to discharge his or her liability (

a) under

section 88 by paying to the person designated in the order the amount the court ascertains, using the child support guidelines, and …

(2) Despite subsection (1)(a), a court may make an order to discharge a liability under

section 88 by paying to the person designated in the order an amount that differs from the amount the court ascertains, using the child support guidelines, if the court is satisfied that (

a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and (

b) the application of the child support Guidelines would be inequitable in the circumstances of the provisions to which paragraph (

a) refers. [ 11 ] There are regulations to the FRA (the Child Support Guidelines Regulation , B.C. Reg. 61/98 [ Regulation ]) that refer to the Federal Child Support Guidelines and define how the FRA and the Guidelines are to work together. The relevant

section of the Regulation is as follows: 1

(2) For the purposes of sections 1(1) and 129(2) , (3) and (4) of the Family Relations Act , the Federal Child Support Guidelines , except sections 2(1), 21(5), 26 and 27 of those guidelines, are adopted and established as child support guidelines in accordance with this regulation.

(3) For the purposes of subsection (2), a reference in the Federal Child Support Guidelines (

a) to the "Act" is to be read as a reference to the Family Relations Act ,

(

b) to "age of majority" is to be read as a reference to age 19, (

c) to "child" is to be read as a reference to "child" as defined by the Family Relations Act, (

d) to "child support order" is to be read as a reference to a maintenance order as defined in

section 87 of the Family Relations Actrespecting the obligation under

section 88 of that Act to support and maintain children, including interim orders to support and maintainchildren, ... (

h) to "spouse" is, except in

section 5 of the Federal guidelines, to be read as a reference to "parent", as defined by the FamilyRelations Act and, in

section 5 of the Federal guidelines, is to be read as a reference to "person". [12] The relevant Federal Child Support Guidelines are set out below: Objectives 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 bothspouses after separation; (

b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (

c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support ordersand encouraging settlement; and (

d) to ensure consistent treatment of spouses and children who are in similar circumstances. ... Presumptive rule 3(1) Unless otherwise provided under these - Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the orderrelates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7. ... Spouse in place of a parent 5. Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a childsupport order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and anyother parent’s legal duty to support the child. [13] The courts have found that the Guidelines have a “’children first’ perspective” in child support matters [D.B.S. v. S.R.G., [2006]2 SCC 37, at para. 43]; and, therefore, “primacy should be given to the children’s standard of living”, [U.V.H. v. M.W.H., 2008 BCCA177 , [2008] B.C.J. No. 717 (C.A), at para. 41]. Statutory

Interpretation [14] The present day principle of statutory

interpretation is found in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 SCC 42, atparas. 26 and 27: 26 In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory

interpretation across a widerange of interpretive settings. ... 27 The preferred approach recognizes the important role that context must inevitably play when a court construes the written wordsof a statute: as Professor John Willis incisively noted in his seminal

article "Statute

Interpretation in a Nutshell" (1938), 16 Can. BarRev. 1, at p. 6, "words, like people, take their colour from their surroundings". This being the case, where the provision underconsideration is found in

an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and thescheme of the Act are more expansive. In such an instance, the application of Driedger's principle gives rise to what was described in R.v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as "the principle of

interpretation that presumes a harmony,coherence, and consistency between statutes dealing with the same subject matter". Analysis

[ 15 ] The respondent stepfather argues that the “Objectives” of the Guidelines should guide me in my

interpretation of the legislation.

Section 1 (

a) of the Guidelines states that one of its objectives is to provide a “fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation.” The respondent argues that the reference to “after separation” should influence and restrict my

interpretation and result in a finding that a stepparent is only liable for child support if he is separated from the parent. In this case of course, the mother and the respondent stepfather continue to be married and live as husband and wife.

The respondent argues, therefore, that he should not have an obligation to pay child support because his situation does not fall within the objectives of the Guidelines . [ 16 ] The respondent also argues that nowhere in the FRA and the Guidelines is there specific allowance for a child support order to be made against both a parent and a cohabitating stepparent. [ 17 ] The self-represented father argues that it is only fair to order child support payments from the stepfather.

He argues that when the child lived with the mother and stepfather that the father paid child support payments and, therefore, the child was supported by three parents. He argues that the child is now only supported by the two parents of the child; I note that although the stepfather has not been ordered to pay child support, he presently provides financial support to the child through his role as stepparent. [ 18 ] In analyzing the issue of whether the “Objectives” of the Guidelines should guide the

interpretation of the FRA , it must be remembered that this is an application under the FRA and not under the Divorce Act and Guidelines . The Divorce Act and Guidelines apply to persons who are, or were, married to each other. The FRA is much broader in scope in that it applies to persons married to one another, persons in a marriage-like relationship, and stepparents. The “Objectives” of the Guidelines relate to the more restrictive Divorce Act . The Regulation broadens the scope of the Guidelines by adopting them, and then expanding their application by broadening the

definitions; see s. 1(3) (

h) of the Regulation , in which reference to “spouse” in the Guidelines is to be read as a reference to “parent” as defined in the FRA , except for s. 5, in which it is to be read as a reference to “person”. I also find that the “children first perspective” [ D.B.S v. S.R.G. , supra ] of the Guidelines should be used as an

interpretation guide to broaden and not narrow the obligation to provide child support, unless the obligation is clearly limited. I find, therefore, that the restrictive nature of the “Objectives” of the Guidelines does not limit the child support obligations as found in the FRA . [ 19 ] The respondent argues that for a stepparent to be obligated to pay child support when the stepparent is living as husband and wife with a parent of the child, and the parent is paying child support, would require legislation that clearly sets out that both the stepparent and parent are obligated to make such payments.

The respondent further argues that the definition of “parent” as found in s. 1(1) (b)(ii) of the FRA , implies that for a stepparent to be obligated to pay child support then a separation must have occurred between the stepparent and parent. The respondent argues this implication comes from the reference to “within one year after the date the stepparent last contributed to the support and maintenance of the child.” A stepparent, however, is defined further, in s. 1(2) of the FRA, as a person who is or was married to a parent of the child.

On a clear reading of the definition of both parent and stepparent, a parent would include a stepparent who is married, and continues to reside with a parent of the child and provide support to the child, as in the case at bar. [ 20 ] Section 88(1) of the FRA specifically states that “each parent” is responsible and liable for child support payments. Section 88(2) sets out that the making of an order for support against one parent does not affect the liability of another parent. Section 93(1)(

a) of the Act states that the court may make an order under s. 88 by using the Guidelines . The Guidelines set out in s. 3 that the amount to be paid for child support is the amount set out in the applicable table according to the number of children and income of the spouse against whom the order is sought.

Section 5 of the Guidelines , however, makes an exception where the “spouse against whom a child support order is sought stands in the place of a parent for a child.” In this situation, the amount to be paid for child support is an amount the “court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.” It must be remembered that the Regulation defines spouse in the Guidelines , for the purposes of the FRA , as a “person” [ s. 1(3) (h)] and not as defined in the Guidelines .

The Regulation also defines the phrase “child support order” as found in the Guidelines , as referring to the obligation for child support under s. 88 of the FRA [ s. 1(3) (d)]. [ 21 ] The more restrictive

interpretation that the respondent asks me to make would be inconsistent with s. 88 of the Act .

I also find that s. 5 of the Guidelines contemplates the circumstances of this case and provides for child support in an amount not as set out by the Guidelines , but as considered appropriate considering another “parent’s legal duty to support the child.” I, therefore, find that when one reads the legislated scheme for child support as a whole, and give the wording its “grammatical and ordinary sense”, a stepparent who satisfies the definition of “parent” and lives with a parent of a child, is still obligated to make child support payments.

This obligation occurs despite the fact that the parent of the child is also obligated to make child support payments. [ 22 ] The respondent stepparent’s obligation will be determined in this case by the application of s. 5 of the Guidelines ; I refer to U.V.H. v. M.W.H. , supra . 2. Can the Recipient of Child Support Claim Undue Hardship? [ 23 ] The applicant argues that the amount he would receive under the Guidelines will result in undue hardship to himself or the child and, therefore, seeks an amount higher than the Guideline amount.

The respondent argues that undue hardship cannot be claimed by the recipient of child support payments, only by the payor. Law [ 24 ] The legislation that is applicable to the issue of whether a recipient can claim undue hardship is found under s. 10 of the Guidelines , which reads as follows: Undue hardship 10

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5 , 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

[25] On my review of the case law, it’s clear that a recipient’s claim for undue hardship is uncommon but not prohibited. Prowse J.A.in Van Gool v. Van Gool, (BC CA), [1998] B.C.J. No. 2513 (C.A.), stated the following at para. 51: 51 Although s.10 can be used by either the payor or the payee spouse to seek a level of maintenance other than that provided underthe basic guideline table, thus far the applications have been almost entirely by payors for a reduction in the table amount. [26] In Saby v. MacIntosh, [2002] B.C.J.

No. 1813 (S.C.), Macaulay J. states that the circumstances set out in s. 10(2) suggest a“defensive rather than offensive use of the section” and warned of the potential risk of increasing child support based solely on personalneeds [para. 23]. Macaulay J. was only able to find three cases, [Van Gool; Scharf v. Scharf, [1998] O.J. No. 199 (Gen. Div.)[Scharf];and Schaan v. Schaan, [2000] B.C.J. No. 61 (S.C.)], in which the recipient successfully claimed undue hardship.

The court concludedthat because of the wording of s.10, and the cases referred to, a recipient spouse could claim undue hardship but “as a practical matter”successful applications would be rare [para. 30]. In the case of E.L.C. v. L.A.C., [2003] B.C.J. No. 2640 (S.C.), Satanove J. found thatsuch an application can be successful. She then referred to Van Gool and Scharf, and qualified her position by stating that the test has ahigh threshold; “Hardship is not sufficient; the hardship must be exceptional, excessive or disproportionate in all the circumstances”,[para. 39].

She stated that it was not good enough that the applicant’s household income was lower than that of the other spouse [para.39]. Analysis [27] Based on the cases referred to above I find that an undue hardship application by the father may be appropriate once adetermination under s. 5 of the Guidelines is determined. I note, however, that a claim under s.10 has a high threshold and will onlyoccur in rare occasions.

Conclusion [28] The applicant is entitled to bring a claim against the respondent stepfather for child support pursuant to s. 5 of the Guidelines.The applicant is also free to claim undue hardship pursuant to s. 10. ______________________ R.C. Dickey Provincial Court Judge