O.Z. v. M.Z. Date:, 2016 BCPC 416

Citation: O.Z. v. M.Z. Date: 20161221 2016 BCPC 416 File No: F16869 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: O.Z. APPLICANT AND: M.Z. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Appearing in person: The Applicant, O.Z.

Counsel for the Respondent: D. Solimano Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: June 16, July 20 and December 16, 2016 Date of Judgment: December 21, 2016 INTRODUCTION [ 1 ] In this case, the Applicant mother (“O.Z.”) seeks an order requiring the Respondent (“M.Z.”) to pay her child support, in his capacity as an alleged stepfather, for the benefit of twin boys who are now 12 years of age (collectively, the “Twins”).

M.Z. opposes the application raising, inter alia , arguments that invoke two agreements between the parties — one entered into in Russia on January 5, 2004 (the “First Agreement”) and the other entered into in Canada on May 23, 2012 (the “Second Agreement”). Both agreements were prepared with the assistance of notaries public — the first being a notary practising in Russia and the second being one practising in British Columbia.

M.Z. contends that in both Agreements, O.Z. expressly waived any entitlement to child support from him for the benefit of the Twins and that her Application should, accordingly, be dismissed. [ 2 ] These Reasons for Judgment are concerned solely with the question of whether, in all the circumstances (and particularly, in the face of the two agreements), O.Z. can establish an entitlement to an order requiring that M.Z. pay her child support for the benefit of the Twins. [ 3 ] The background to O.Z.’s Application and to M.Z.’s opposition to it is both complex and unusual.

The parties were married, and divorced, in Russia before emigrating to Canada in 2004. Their marriage took place in 1990 and they were divorced on October 27, 2003 (see Exhibit 4, tab 3). During the course of their married life, they had a daughter together who was born in 1994, is now 22 years old and has lived on her own in British Columbia since November of 2014 (“Youth-P.Z.”). Unlike the Twins, she is not the subject of these proceedings. [ 4 ] The Twins were born to O.Z. as the result of an extramarital affair she had with another man (“S.S.”).

S.S. is thus the biological father of the Twins and O.Z. is their biological mother. (O.Z. has never pursued S.S. to pay child support for the Twins and nothing in that regard has been received by her from him.) [ 5 ] O.Z. contends that the affair between O.Z. and S.S. was a symptom of the breakdown of her relationship with M.Z.; M.Z. says, to the contrary, that the affair was the cause of the breakdown. In any event, despite that history, in 2004 O.Z. and M.Z. emigrated to Canada at the same time, accompanied by Youth-P.Z. and the Twins.

They resided together in Port Coquitlam for the first five months after their arrival, but following that, once he had established himself in the work force and had the necessary funds, M.Z. found his own accommodation. That brief period of initial cohabitation did not reflect an attempt by the parties at that time to revive their relationship; rather, it was an interim, temporary arrangement made necessary by limited financial resources. [ 6 ] An attempt by the parties to revive their relationship did however occur eventually. O.Z. and M.Z. resumed cohabiting in June of 2012.

They bought a townhouse in Port Coquitlam (the “Townhouse”) and they reunited under its roof as a family. Before spousal relations and cohabitation resumed, however, M.Z. sought to reinforce the position he had taken while still living in Russia that he must not be burdened with any financial obligations relating to the Twins—the living legacy of the liaison that had occurred between O.Z. and S.S.

That had been the subject of the First Agreement and M.Z. made similar stipulations in the Second Agreement as a condition precedent to his participation in the purchase of the Townhouse and to the resumption of spousal relations and cohabitation with O.Z., the Twins and Youth-P.Z. [ 7 ] The parties’ time together during this phase lasted 36 months, commencing in June of 2012. Youth-P.Z. moved out of the Townhouse in November of 2014, in part due to conflict within the family, but the Twins continued to reside with O.Z. and M.Z. throughout. Eventually, the reconciliation experiment failed.

It came fully to a close at the end of June of 2015. The parties sold the Townhouse and separated permanently. M.Z. found a new place to live, as did O.Z., and the Twins accompanied O.Z. to her new home where they continue to reside to this day. [ 8 ] As can be seen, broadly, the question raised by O.Z.’s Application is whether in these highly unusual circumstances and despite the contrary terms of the First Agreement and the Second Agreement, M.Z. is nevertheless obliged as a stepparent to pay child support to O.Z. for the benefit of the Twins. THE GOVERNING LEGISLATION [ 9 ]

Part 7 of the Family Law Act , S.B.C. 2011, c. 24 , deals with (among other subjects) the subject of child support and generally governs the matters in controversy in this proceeding. [ 10 ]

Section 146 sets out, inter alia , the following

definitions: ‘parent ’ includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child]; ‘ stepparent ’ means a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life. [ 11 ] While it falls outside

Part 7, s. 3 of the Family Law Act has application generally throughout the statute and it defines “spouses” and the relationships between spouses as follows:

(1) A person is a spouse for the purposes of this Act if the person (

a) is married to another person, or (

b) has lived with another person in a marriage-like relationship, and (

i) has done so for a continuous period of at least 2 years, or (ii) except in Parts 5 [Property Division] and 6 [Pension Division] , has a child with the other person.

(2) A spouse includes a former spouse.

(3) A relationship between spouses begins on the earlier of the following: (

a) the date on which they began to live together in a marriage-like relationship; (

b) the date of their marriage.

(4) For the purposes of this Act , (

a) spouses may be separated despite continuing to live in the same residence, and (

b) the court may consider, as evidence of separation, (

i) communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. [ 12 ] Subsections (4) and (5) of s. 147 address the duties of stepparents particularly. Those subss. provide as follows:

(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.

(5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty (

a) is secondary to that of the child's parents and guardians, and (

b) extends only as appropriate on consideration of (

i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and (ii) the length of time during which the child lived with the stepparent. [ 13 ]

Section 6 of the Family Law Act is concerned generally with agreements respecting family law disputes and subs. (3) provides that “[s]ubject to this Act , an agreement respecting a family law dispute is binding on the parties”. [ 14 ]

Section 148 of the Family Law Act governs agreements respecting child support in particular and it provides as follows: 148

(1) An agreement respecting child support is binding only if the agreement is made (

a) after separation, or (

b) when the parties are about to separate, for the purpose of being effective on separation.

(2) A written agreement respecting child support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

(3) On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in

section 150 [determining child support] . [ 15 ] Lastly, s. 150 of the Family Law Act prescribes the considerations that a court must entertain, in addition to those set out in the Federal Child Support Guidelines , SOR/97-175 as amended to SOR/2011-267, when determining what child support is properly payable by those persons who are obliged to pay it. That

section provides as follows: 150

(1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines.

(2) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if (

a) the parties consent under

section 219 [persons may consent to order being made] or have an agreement respecting child support,

and (

b) the court is satisfied that reasonable arrangements have been made for the support of the child.

(3) The court must consider the child support guidelines for the purposes of subsection (2), but must not consider arrangements made for the support of the child to be unreasonable only because the amount required under the child support guidelines differs from those arrangements.

(4) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if satisfied that (

a) an agreement or order respecting the financial duties of the parents or guardians or the division or transfer of property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and (

b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions.

(5) If a court makes an order respecting child support in an amount different from that required under the child support guidelines, it must give reasons for doing so. THE GOVERNING LEGISLATION APPLIED TO THE RELEVANT FACTS Was M.Z. a “Stepparent” of the Twins at the Material Time? [ 16 ] The evidence establishes that after purchasing the Townhouse in May of 2012, M.Z. and O.Z. resumed cohabiting there in June of 2012. Youth-P.Z. and the Twins lived with them.

M.Z. agreed on cross-examination that this reuniting was intended to give the relationship between him and O.Z. another chance at success, and that the intention was that they, Youth-P.Z. and the Twins would try again to live together “as a happy family” ( Trans. , July 20, 2016, p. 18). (In this respect, the case at bar differs markedly from the case of Sampaio v. Christianson , [2015] B.C.J. No. 2044 (S.C.) in which G.C.

Weatherill J. found, at paras. 21 and 74-77, that the subject children and putative stepparent “lived in the Matrimonial Home but did so as a separate family”.) Conflict did eventually creep back into the relationship between O.Z. and M.Z. but, nevertheless, they remained together and under the same roof for 36 months, accompanied by the Twins throughout and by Youth-P.Z. for 29 months. [ 17 ] By the definition given in s. 146 of the Family Law Act , a “stepparent” is “a person who is a spouse of the child’s parent and lived with the child’s parent and the child during the child’s life”.

As can be seen, buried in that definition of stepparent is the term, “spouse,” which in turn is defined in

section 3. [ 18 ] There is no doubt that from June of 2012 until the end of June of 2015, M.Z. was O.Z.’s “spouse”. [ 19 ] M.Z. was her spouse by dint of the fact that he had been her spouse before (see subs. 3(2)) and had had a child — Youth-P.Z. — with her (see subpara. 3(1)(b)(ii)).

He was also O.Z.’s spouse by dint of the fact that, from June 2012 to July 2015, he lived with her in the Townhouse in a marriage-like relationship continuously for over two years (see subpara. 3(1)(b)(i)). [ 20 ] That the parties’ relationship was intended, at the time of reconciliation and reuniting in June of 2012, to be “marriage-like” is confirmed by M.Z.’s admission during cross-examination quoted above and by some of the language of the Second Agreement that he drafted (Exhibit 4, tab 6) — an Agreement that, regardless of its enforceability, nevertheless stands as powerful evidence of the parties’ intentions at the time they resumed cohabitation.

The relevant language in the Agreement reads as follows: We, the undersigned [M.Z.] and [O.Z.], hereby confirm our agreement to the resumption of cohabitation and intimate relationships. We will always love, respect and care for each other.

We also commit ourselves to always be considerate, and take into account the views and interests of each other, to discuss and resolve family issues and problems only in our family circle (such as any relationship between us, child upbringing, financial affairs, recreation, vacation, medical treatment) and never to do the same with outsiders … We believe that all the personal shortcomings that each of us has at present time, apart from those mentioned in this document, are acceptable … … [O.Z.] agrees to cease all previous relationships with [N.V.], and refrain from having any love or sexual relations with other men except M.Z. … [ 21 ] Moreover, I find as a fact that the relationship remained “marriage-like” until at least November of 2014 — some 29 months after the experiment began — at which point Youth-P.Z. moved out to live on her own.

M.Z.’s evidence in this regard was that it was then that O.Z. began to press him to agree to sell the Townhouse. He testified that O.Z. began to apply unrelenting pressure in that respect, saying that he believed her purpose was to create an environment within the Townhouse that was so “unbearable” that he would yield to her wishes and agree to sell it. [ 22 ] The foregoing facts bring M.Z. squarely within the definition of “stepparent” under s. 146 of the Family Law Act . Does M.Z.

Have a Prima Facie Obligation to Provide Child Support for the Twins? [ 23 ] Before coming to matters of substance under this heading, I will first pause briefly to address a technical/procedural point. [ 24 ] M.Z. takes the position, in argument, that O.Z.’s Application has not been brought in compliance with the time limitation prescribed by s. 147(4)(

b) of the Family Law Act . It is common ground that: (

a) M.Z. and O.Z. ceased cohabiting at the end of June, 2015; (

b) O.Z. filed her Application seeking child support from him on April 14, 2015; and

(

c) O.Z. served her Application on M.Z. on July 3, 2016. [ 25 ] It is clear from that chronology that, somewhat unusually, O.Z. took the step of filing her Application seeking a child support order against M.Z. for the benefit of the Twins (and, thus, “starting” this proceeding) before the parties actually separated. She testified that she did so on the advice of her then legal counsel. [ 26 ] This unusual timing should not, in my judgment, deprive O.Z. of the ability to pursue her claim. That is to say, I do not consider that para. 147(2)(

b) can justly be given a reading under which O.Z.’s ability to pursue M.Z. as a stepparent for child support would be lost to her because the present proceeding, for the purposes of the language of para. 147(2)(b), was not “started within one year after [M.Z.] last contributed to the support of the [Twins]” (emphasis added) but, rather, was started shortly before M.Z. ceased contributing to the Twins’ support. To give effect to such an argument would be to yield to an exceedingly technical reading of para. 147(2)(

b) that does not withstand scrutiny when proper regard is had to policy. To his credit, counsel for M.Z. does not press this consummately technical point with overmuch vigour. [ 27 ] The policy that lies behind the wording of that paragraph within s. 147 is plainly aimed at, inter alia , ensuring that stepparents are not prejudiced by having child support claims brought against them more than a year after their involvement in the lives of the subject children has ceased. With the passage of time, memories fade, documents are lost and the process of recapturing history becomes progressively more difficult.

These considerations inform the enactment of limitation periods generally: see, for example, the discussion in Shamrock Fencing

(1982) Ltd. v. Walker , [2015] B.C.J. No. 2265 (Prov. Ct.) at para 18 . [ 28 ] No prejudice owing to the effluxion of time can be said to befall someone in M.Z.’s position as a result of an applicant, like O.Z., having taken the precaution of formally “starting” her proceeding for child support shortly before separation has occurred and while the contribution of the Respondent is still ongoing.

Indeed, the absence of any such prejudice is conceded, on instructions, by M.Z.’s counsel. [ 29 ] I now turn away from the procedural and technical and come to the substance of what subs. 147(4) brings into issue in a case of this kind.

That is the requirement, prescribed in para. 147(4)(a), that to be bound by a duty (albeit a secondary one) to provide child support, a stepparent must be proven to have “contributed to the support of the child for at least one year”. [ 30 ] Most of the evidence at the trial of O.Z.’s Application was focused upon this issue. [ 31 ] Given the nature of the evidence led at trial by both parties, there is no question that M.Z. and O.Z. strove to keep their finances somewhat separate.

More importantly, that evidence also shows that M.Z. isolated himself, to a degree, from the day-to-day costs of making provision for the Twins’ needs particularly. For example, the parties agree that while he covered some of Youth-P.Z.’s sporting expenses, M.Z. did not pay for any sporting expenses for the Twins.

Neither did he give the Twins an allowance, pay for their school tutoring or buy their clothing. [ 32 ] However, M.Z. conceded that he did pay half of the mortgage and the strata fees for the townhouse in which he, O.Z., the Twins and Youth-P.Z. (until November, 2014), resided together as a family for three years. He also acknowledged that he bought some of the food that the family consumed over that period. [ 33 ] M.Z. and O.Z.’s reconstituted family took a number of vacations together — two to Hawaii, one to San Francisco, one to San Diego, one to Penticton and one or two to Manning Park.

M.Z. paid half of the hotel expenses on at least some of those vacations. M.Z., O.Z. and the children also went boating together as a family from time to time — an activity that is not cost-neutral. [ 34 ] What this evidence reveals is that M.Z. made expenditures from his funds that met, in part, the Twins’ most basic needs — their needs for shelter and food.

He also made expenditures from his funds that covered part of the cost of entertainment and domestic and international travel for the entire family, including the Twins. [ 35 ] Despite his attempts to minimise or diminish the significance of his role in the lives of the Twins, M.Z. also acknowledged that he (for example) sometimes walked them to school. M.Z. did not say anything during the course of his testimony to contradict O.Z.’s assertion, during hers, that he “tried his best” to serve as the Twins’ stepfather ( Trans. , June 17, 2016, pp. 15-16).

Neither was O.Z.’s testimony in this regard challenged on cross-examination. [ 36 ] M.Z. and O.Z. were not mere “housemates” as M.Z. contends, rather harshly and unsentimentally, in argument. M.Z.’s participation in making provision for the Twins was, in almost all respects, consistent with his having stood in loco parentis to them during the three-year period between June 2012 and June 2015 when he and O.Z. gave their spousal relationship another try — a period during which he contributed financially, in kind, and emotionally and psychologically to their upbringing.

This resonates in perfect harmony with some of the early language of the Second Agreement — an agreement that M.Z. drafted and in which he purported to set consensual ground rules for reengagement with O.Z. in 2012. It will be recalled that in the third sentence of that agreement, M.Z. stipulated that he and O.Z. would “discuss and resolve family issues and problems” including, among other issues and problems, “child upbringing, financial affairs, recreation, vacation …”. Mere “housemates” do not stipulate for exclusivity in intimate relations with one another.

Neither do they involve themselves in one another’s lives (or in the lives of the children of one of them) in the ways contemplated by the above-quoted language taken from the Second Agreement. [ 37 ] I pause here to acknowledge the argument advanced on M.Z.’s behalf to the effect that the reference in the above-quoted passage from the Second Agreement to the parties’ pledge to each other to discuss and resolve “family issues and problems” including “ child upbringing” (emphasis added) must be read as referring to the upbringing of Youth-P.Z. (then 18 years of age) only.

I have no hesitation in rejecting that argument. M.Z. gave no evidence to support that strained reading of the words he used in drafting the Second Agreement; beyond that, however, the preponderance of the evidence cuts directly against that strained reading. While M.Z. may have negotiated a way of isolating himself partially from the economic responsibilities that he would otherwise have assumed when he and O.Z. decided to resume cohabitation as spouses, his actual involvement in the lives of the Twins, on the evidence I have canvassed in these Reasons, was nevertheless consistent with that of a stepparent.

[38] Altogether, M.Z.’s words and his actions leading up to and during most of the parties’ three-year experiment at reconciliationbetoken meaningful engagement on his part with the parenting of the Twins — including the aspects that called for money and in-kindcontributions from him. While they may have been lesser financial and in-kind contributions than what might be expected in moreconventional circumstances, M.Z.’s contributions were nevertheless far from insignificant.

His economic contributions, as outlinedabove, extended well beyond the “trivial” and the “sporadic”; what he provided, either through money or in-kind, were not mere“gestures of occasional generosity” of the sort that the cases show will not attract a duty to support: see, for example, Smart v. Wiewior(1990), (BC CA), 28 R.F.L. (3d) 225 (B.C.C.A.), McConnell v. McConnell, 2007 BCSC 748 and, more recently,D.C.D. v. R.J.P.C., [2014] B.C.J. No. 3155 (S.C.).

Rather, M.Z.’s contributions to the cost of, inter alia, shelter, food, vacations and thelike for the Twins were substantial, consistent and regular. [39] For all of the foregoing reasons, I find that the nature of M.Z.’s role in the lives of the Twins from June of 2012 to June of 2015— both financially and otherwise — was such that it triggered a prima facie duty on his part under s. 147(4) of the Family Law Act toprovide support for the Twins, as their stepfather, following his break-up with O.Z. and their separation at the end of June of 2015.

Stated slightly differently, based on the findings I have outlined above, I conclude that M.Z. bears a prima facie obligation to pay childsupport to O.Z. for the benefit of the Twins, subject to any arguments that he might successfully raise to persuade me that that primafacie obligation is displaced or altered by terms in the First Agreement and/or the Second Agreement that purport to foreclose liability onhis part for child support. [40] Before concluding on this point, I feel compelled to say that I found it saddening to watch M.Z. struggle, while giving hisevidence, to downplay the extent and importance of his role in the lives of the Twins.

One can only hope that those efforts atminimisation never come to the Twins’ attention. [41] Certainly, it is understandable that finding a place in one’s heart and life for children who are the product of a liaison betweenone’s spouse and another man during the currency of the marriage would present challenges to anyone in M.Z.’s position.

But theevidence here amply persuades me that M.Z. met and overcame those challenges and did not permit his grievances with O.Z. regardingher involvement with the Twins’ father to get in the way of playing an important, fatherly role in the Twins’ lives after he and O.Z.decided to try to reconcile. Obviously, the Twins themselves are in no way answerable for the predicament in which O.Z. and M.Z.found themselves. The caring and hopeful attitude M.Z. brought to the attempt he and O.Z. made at reconciliation is writ large in theterms of the Second Agreement — terms that M.Z. drafted himself.

It is appropriate that I set them out here again: We, the undersigned [M.Z.] and [O.Z.], hereby confirm our agreement to the resumption of cohabitation and intimate relationships. Wewill always love, respect and care for each other.

We also commit ourselves to always be considerate, and take into account the viewsand interests of each other, to discuss and resolve family issues and problems only in our family circle (such as any relationship betweenus, child upbringing, financial affairs, recreation, vacation, medical treatment) and never to do the same with outsiders … We believethat all the personal shortcomings that each of us has at present time, apart from those mentioned in this document, are acceptable … [42] The evidence shows that M.Z.’s actions for a period of years after he and O.Z. reunited with the Twins, as a family, wereconsistent with the outlook on reconciliation that is reflected in those hopeful and optimistic words.

Neither the above sentences fromthe Second Agreement, nor M.Z.’s behaviours that reflect them, are of course congenial to the position he now takes in this litigation(where success in resisting liability for child support depends in part on minimising his relationship with the Twins at the relevant time tothe point of insignificance).

But M.Z.’s words and actions at the relevant time — and not his attempts to re-write history for thepurposes of vindicating his position in this Application — are what govern and those words and actions bespeak a kinder, gentler manwho undoubtedly wished to limit his financial responsibilities for the Twins but nevertheless stepped hopefully and caringly into the roleof stepfather for them.

Do the Exhibited Agreements Negative M.Z.’s Prima Facie Obligation to Support the Twins? [43] As I have explained above, M.Z. raises two agreements as shields to deflect O.Z.’s claims against him, as a stepparent, for childsupport to benefit the Twins.

I shall first, in this regard, consider whether the documents tendered in evidence by M.Z. are indeedauthentic copies of agreements into which he and O.Z. actually entered in 2004 (as to the First Agreement) and then in 2012 (as to theSecond Agreement). [44] Following that, I shall determine whether those agreements are provisionally “binding” for the purposes of subs. 6(3) and s. 148of the Family Law Act. [45] Finally, I shall consider whether the terms within those agreements that purport to relieve M.Z. of his duty to pay child supportto O.Z. for the benefit of the Twins are enforceable.

Authenticity of the Agreements [46] I will not spend much time on this threshold topic. While O.Z. clearly does not now wish to be held to some of the termsrecorded in Exhibit 4, tab 4 (the First Agreement) or in Exhibit 2 and Exhibit 4, tab 6[1] (the Second Agreement), I am neverthelesspersuaded that those exhibited documents do indeed accurately record two related bargains that she entered into with M.Z. In bothinstances O.Z. identified her own signature and confirmed that she had signed the originals of the documents.

In one (the SecondAgreement) she initialled a handwritten change to the text. [47] O.Z. gave some, frankly, rather incoherent evidence about the content of the agreements differing in some ways from the termsto which she believed she had acceded. However, I observe again that O.Z. could not deny that her signatures on both, and her initialledchanges on one, were genuine.

She tendered no evidence that raised the spectre of coercion, duress, inequality of bargaining power ormaterial non-disclosure; neither did any of her testimony or documentary evidence suggest any basis upon which she could invoke thelaw of mistake or the doctrine of non est factum. [48] Accordingly, I find that the documents situated under tabs 4 and 6 of Exhibit 4[2] are authentic copies of agreements truly madebetween M.Z. and O.Z. — the First Agreement having been executed in Perm, Russia, on January 5, 2004 and the Second Agreement

having been executed in North Vancouver on May 23, 2012. Status of the Agreements as “Binding” Under the Family Law Act [49] The issue of what kinds of agreements respecting child support are “binding” is addressed indirectly by subs. 6(3) and directlyby subs. 148(1) of the Family Law Act. What does “binding” mean in this legislative context?

I consider that the word must mean“conclusive” or “determinative,” subject of course to the jurisdiction to set aside or vary even provisionally binding agreements conferredby, inter alia, subs. 148(3).[3] [50] M.Z. and O.Z. entered into the First Agreement in Russia on January 5, 2004 — that is, after they were separated and divorcedin 2003, but before the Twins were born in 2004. That agreement contains the following language, raised by M.Z. in defence of O.Z.’sApplication: At the moment, I’m pregnant not by [M.Z.].

Therefore, I undertake not to make any material or property claims to [M.Z.] in connectionwith the birth … upkeep, medical treatment and education of children born of the present pregnancy, neither in Russia nor in anothercountry, even if … any official documents or the law of that country would allow to make such claims.” (Exhibit 4, tab 4) [51] While there was plainly a separation that preceded their divorce in 2004, for the purposes of subs. 148(1) of the Family Law Actand this Application concerning M.Z.’s possible liability as a stepparent to pay child support for the benefit of the Twins, the“separation” of interest for present purposes is the separation that came at the end of June, 2015, after the parties’ failed attempt toreunite as a family concluded. [52] The First Agreement was not made “after” the separation that came at the end of June, 2015.

Neither was it made shortlybefore June, 2015 “when [M.Z. and O.Z. were] about to separate, for the purpose of being effective” at the time of their separation at theend of June, 2015. [53] It follows that, according to subs. 148(1) — which requires that one of the above-referenced preconditions to be satisfied for anagreement respecting child support to be “binding” — the First Agreement is not binding in the sense of being even provisionallyconclusive or determinative of M.Z.’s obligation, as the Twins’ stepparent, to pay child support to O.Z. for the Twins’ benefit. [54] M.Z. and O.Z. entered into the Second Agreement in North Vancouver on May 23, 2012 — that is, shortly before they resumedcohabiting as a family consisting of themselves, Youth-P.Z. and the Twins.

That agreement contains the following language, also raisedby M.Z. in defence of O.Z.’s Application: Since [O.Z.] has two children, [the Twins], who are not children of [M.Z.], she alone bears full material, financial and legal responsibilityfor them, as well as: - pays all fines and bills incurred by [the Twins] through their interactions with third parties; - Repairs or pays for restoration of any movable or immovable property, harmed or destroyed by [the Twins]. [55] Like the First Agreement, the Second Agreement was also not made “after” the separation that came at the end of June, 2015.

It was made three years earlier, a week before the parties’ attempt at reconciliation commenced. Neither was it made shortly beforeJune, 2015 “when [M.Z. and O.Z. were] about to separate, for the purpose of being effective” at the time of their separation at the end ofJune, 2015.

Again, it was made three years earlier. [56] It follows once again that, according subs. 148(1) — which requires that one of the above-referenced preconditions to besatisfied for an agreement respecting child support to be “binding” — the Second Agreement is also not binding in the sense of beingeven provisionally conclusive or determinative of M.Z.’s obligation, as the Twins’ stepparent, to pay child support to O.Z. for the Twins’benefit.

Enforceability of the Agreements [57] It is often said that the right to child support belongs to children and that the adults who are responsible for those children arenot free to barter away that right: see, generally, Richardson v. Richardson, (SCC), [1987] 1 S.C.R. 857 at 869-870;Lambright v. Brown, 2003 BCCA 621; Black v. Black (1995), (BC CA), 19 R.F.L. (4th) 442 (B.C.C.A.) and Willickv. Willick, (SCC), [1994] 3 S.C.R. 670.

This does not mean, however, that freedom of contract is a stranger to familylaw and that agreements that purport to define the parties’ entitlement to be paid child support for the benefit of children are treateddismissively and routinely disregarded. To the contrary, such agreements can in some circumstances be shown considerable deference,particularly where there is a case to be made that, at the time the parties to them entered into their agreements, they reasonably believedthat their bargains regarding child support provided adequately for their children: Willick.

As the analysis above has shown, suchagreements — provided they were arrived at in accordance with the requirements of subss. 6(3) and 148(1) of the Family Law Act — areat least provisionally binding in British Columbia. [58] In the case at bar, however, I am not called upon to conduct a nuanced assessment as to whether, within the broader context ofother provisions either directly or indirectly affecting the Twins, the parties arrived at a fair and defensible child support arrangement forthe Twins that is adequate to meet their needs.

This is not a case concerned with subtleties; it is a case concerned with sweepingabsolutes.

In this proceeding M.Z. argues that he and O.Z. have expressly agreed to rule out absolutely, pre-emptively and for all time(regardless of possible changes in circumstances), payment of child support in any amount by M.Z. to O.Z. for the benefit of the Twins,even though on the applicable law M.Z. qualifies as a stepparent who has a duty (albeit a secondary one) to pay such child support. [59] To begin, for the reasons given earlier, both the First Agreement and the Second Agreement are not even provisionally bindingunder subs. 6(3) or s. 148 of the Family Law Act.

That is, they were not entered into on the point of, or after, separation for the purposeof giving proper definition to M.Z.’s obligation at law to make his proper contribution to the cost of raising the Twins thereafter. Rather,

both were entered into long before any intention to separate after the attempted (and ultimately failed) reconciliation in June of 2012 had entered the parties’ minds. This makes the enforceability of those agreements tenuous at best, and for good reason. M.Z. and O.Z. entered into both the First and Second Agreements without knowledge of, or regard for, the requirements of the Family Law Act , the Federal Child Support Guidelines or what would constitute “reasonable arrangements” for the Twins.

Both agreements were intended, as regards child support for the Twins, to serve M.Z.’s economic interests exclusively by isolating him from any and all such claims and without consideration of how that isolation would affect the Twins. In these circumstances the court’s jurisdiction to intervene for the Twins’ benefit, pursuant to subs. 6(3) and 148(3), and s. 150, of the Family Law Act , is immediately and obviously engaged. [ 60 ]

Section 150 of the Family Law Act prescribes a regime under which the amount of child support payable for the benefit of children is presumptively that which is dictated by the Federal Child Support Guidelines , having regard to the payor’s guideline annual income. That presumption can give way and a different amount can be enforceable if, for example, that different amount — as prescribed by an agreement reached between the parties — constitutes a “reasonable arrangement … for the support of the child[ren]”: subs. 150(2).

The statutory presumption that the Guidelines dictate the amount of child support can also give way if other aspects of the parties’ dealings as reflected in a court order or agreement benefit the subject children, directly or indirectly, and if a straight application of the Guidelines would therefore be inequitable: see subs. 150(4).

With respect to stepparents particularly, s. 147 requires that, in fixing the amount of child support properly payable by them (as payors with a secondary duty), consideration must be given to the primary obligations of the subject children’s biological parents, as well as the standard of living the children experienced throughout the duration of the relationship between the payor stepparent and his or her spouse and the duration of that relationship: see subs. 147(5) of the Family Law Act . [ 61 ] It is plainly evident in the case at bar that no thought was given by M.Z. and O.Z. to any of these factors in formalising the bargains that are reduced to writing in either the First Agreement or the Second Agreement.

The wellbeing of the Twins is, and must be, at the centre of the court’s attention in a matter of this kind.

I cannot accept that giving effect to M.Z.’s arguments that the provisions within those agreements which would wholly extinguish his obligation to pay child support to O.Z. for the Twins’ benefit would result in “reasonable arrangements” for their support (to track the language of para. 150(2)(b)). [ 62 ] I consider that there is scant need for the court in the instant case to appeal to authority to justify the self-evident proposition that courts will decline to enforce provisions in family law agreements between parties which manifestly fail to make reasonable arrangements for the support of children following separation.

However, I will advert to a few cases that demonstrate that in this regard (as is usually the case), where common sense points, the law is generally found. [ 63 ] In Ferguson v. Ferguson , [2008] B.C.J. 199 (S.C.) , a father sought enforcement of a separation agreement that did not make proper provision for child support for the parties’ two daughters. Hinkson J. (as he then was) noted, at para. 33, that “… inadequacies in the agreement concerning child support cannot deprive the parties’ daughters of such support,” citing the often-quoted reference in Richardson v.

Richardson to child maintenance being a right of the child which cannot be bartered away. In other cases where parties have purported to negotiate terms of separation in which no provision whatsoever has been made for child support, courts have refused to give effect to the parties’ agreements on grounds of unfairness: see, for example, B.R.A. v. R.W.A. , [2015] B.C.J. No. 1417 (S.C.) at paras. 73 ff . In M.L. v. S.L. , [2015] N.B.J.

No. 106 (Q.B.) , Cyr J. refused to give effect to a separation agreement that made no provision for, inter alia , child support on the ground that to do so would be contrary to the best interests of the children: see paras. 66 ff. [ 64 ] That, I believe, should suffice as to authority. A provision in an agreement between family law litigants that forecloses any payment of any amount of child support, ever, by a stepfather, like M.Z., to a mother, like O.Z., for the benefit of children, like the Twins, is on its face, manifestly unenforceable.

Such provisions, being in no way calibrated to ensure “reasonable arrangements” for the subject children (after account is taken of all of the relevant factors and considerations addressed in ss. 147-150 of the Family Law Act ), cannot be said properly to serve the best interests of the subject children and so this court must decline to uphold them. [ 65 ] It follows from all of the foregoing that nothing in either the First Agreement or the Second Agreement is enforceable at the instance of M.Z. to bar O.Z. from pursuing a claim of child support against him for the benefit of the Twins.

THE CONFLICT OF LAWS ISSUE [ 66 ] Everything I have said to this point about the First Agreement and its enforceability has implicitly been said from the perspective that — although O.Z. and M.Z. entered into it in Russia — that agreement is governed, substantively, by the law of the province of British Columbia. This reflects the conclusion I have reached regarding what constitutes the proper law of the First Agreement.

However, it is essential that I now set down here, in the paragraphs that follow, the logical and legal pathway I took in arriving at that conclusion regarding the proper law. [ 67 ] The First Agreement was, on the evidence led before me, prepared with the assistance of a Russian notary public and entered into by M.Z. and O.Z. in Russia in 2004 when they still resided there. It is now proffered (as to its child support-related provisions) as a defence by M.Z. to O.Z.’s Application seeking an Order that he pay child support to her for the benefit of the Twins.

A question naturally arises as to how that First Agreement should be treated from a conflict of laws perspective. [ 68 ] The First Agreement is silent as to choice of law but, having regard to the evidence as a whole and the manner in which the substantive law that should govern family law agreements is normally determined, I am satisfied that the parties intended that the proper law of the First Agreement would be the law of British Columbia.

To put it slightly differently, I am satisfied that an implied choice of law provision regarding the First Agreement can be gathered from its terms and from the circumstances of this case as a whole — most particularly the evidence that M.Z. and O.Z. gave at trial about their contractual intentions. It is that assessment that has led me to conclude that the parties’ implied choice of law points to the law of the Province of British Columbia. [ 69 ] In Star Shipping A.S. v.

China National Foreign Trade Transportation Corporation (The "Star Texas") , [1993] 2 Lloyd's L.R. 445 at 451 (C.A.), Steyn L.J. (concurring with Lloyd and Mann, L.JJ.) stated the following: In the absence of an express choice of law, the first question is whether an appropriate implied intention can be gathered from the terms of the contract and the circumstances of the case . If no such implied intention is established, the contract is governed by the system of

law with which the transaction has its closest connection.” (emphasis added) [70] This passage was recently cited with approval by Grey J. in Sangi v. Sangi, [2011] B.C.J. No. 779 (S.C.) at para. 213 and itclearly permits a court to consider, inter alia, evidence extrinsic to the agreement under consideration (i.e., “the circumstances of thecase” in the words of Steyn L.J.) in order to divine the parties’ intentions regarding choice of law where those intentions are notexpressed on the face of their agreement.

Further, in my respectful view, M.Z.’s parol evidence regarding his intentions when enteringinto the First Agreement, and O.Z.’s more oblique evidence regarding hers, is admissible on the authority of Star Shipping as well onthe authority of cases like Hawrish v.

Bank of Montreal, (SCC), [1969] S.C.R. 515 to explain the First Agreement as anincomplete document and to assist the court in ascertaining the intentions of the parties with regard to choice of law. [71] Recall that M.Z. and O.Z. entered into the First Agreement a few months after the parties’ divorce in Russia and a few monthsbefore they emigrated from Russia to Canada.

In coming to the conclusion I have reached about their implied choice of law being thelaw of British Columbia, I have carefully considered the testimony M.Z. gave, during his direct examination, in which he explained thatat the time he and O.Z. entered into the First Agreement, he had some awareness that under Canadian law he may bear some financialresponsibility for the Twins that he believed he would not bear under the law of Russia.

M.Z. testified that he feared that Canadian lawcould open a door such that O.Z. could pursue a child support claim against him in Canada with respect to the Twins once they emigratedto Canada. It was M.Z.’s evidence that he required that O.Z. enter into the First Agreement because he believed that in doing so hewould be able to raise its financial terms as a defence to any such claim that might be brought against him in Canada. [72] None of that testimony from M.Z. was either challenged or called into doubt in any way by O.Z.’s evidence.

Indeed, O.Z. wasclear in her testimony that she felt no hesitation to waive any claim to child support from M.Z. for the (then unborn) Twins at the timeshe entered into the First Agreement with M.Z. because she had no thought then that she and M.Z. would ever reconcile.

Her testimonywas clear that it was only because of their attempt at reconciliation which commenced eight years later that she revisited the question ofchild support for the Twins and came to consider M.Z. to be properly liable to pay it, given that he had served as their stepfatherthroughout the three years (from June 2012 to June 2015) during which their ultimately failed attempt at reconciliation was underway. [73] The evidence was also clear that upon emigrating to Canada, M.Z. and O.Z. first took up residence in an apartment in PortCoquitlam and that they remained there, together with Youth-P.Z. and the Twins, for reasons of convenience, until M.Z. establishedhimself sufficiently as to employment and income to move into his own residence.

The evidence further bears out that the parties haveresided in Port Coquitlam ever since.

I believe it is a fair inference from these proven facts that — a community in British Columbiahaving been their destination upon emigrating from Russia to Canada in 2004 — the law of British Columbia in particular was, bynecessary implication, the substantive law that the parties implicitly chose to govern the First Agreement. [74] It is of course now clear that to the extent that he believed, or perhaps was led to believe, that with the First Agreement he coulderect an insurmountable barrier that would protect him against any claim of child support that might be brought against him by O.Z. forthe benefit of the Twins in any and all circumstances, M.Z. was sorely mistaken.

As I have found based on all of the evidence led beforeme, circumstances as they unfolded ultimately cast M.Z. in the role of the Twins’ stepfather. That is a role he filled for three years(between June 2012 and June 2015) while the parties sought to overcome their differences.

Having stepped into that role, and havingimplicitly chosen the substantive family law of British Columbia as the law that governs the First Agreement, M.Z. must now accept theway that that law responds to agreements which purport to create absolute bars to claims for child support asserted against stepfathers incircumstances like those in this case.

As I have stated earlier, given inter alia that the First Agreement would wholly oust any claims byO.Z. against M.Z. for child support for the Twins’ benefit — even in circumstances in which M.Z. subsequently became their stepfatherfor three years — the First Agreement runs afoul of the fundamental requirement that it make “reasonable arrangements … for thesupport of the [Twins]” as prescribed by subs. 150(2) of the British Columbia Family Law Act.

The First Agreement is, accordingly,unenforceable as a defence to O.Z.’s Application and O.Z.’s entitlement to claim child support against M.Z. for the benefit of the Twinsis established according to the substantive law that the parties implicitly chose to govern and apply to the First Agreement. [75] Before leaving the subject of the conflict of laws, I will add that no expert evidence regarding the law of Russia has beenadduced before me—either to suggest that the financial terms of the First Agreement would be enforceable by M.Z. as a defence toO.Z.’s child support claim under Russian law in the circumstances of this case or otherwise.

Had that not been so, and had I notconcluded that the proper law of the First Agreement was, by necessary implication, the law of British Columbia, then I would have hadto turn my mind to whether the First Agreement might be enforceable by M.Z. against O.Z. under Russian law. However, the state of theevidence in the case at bar leaves me with nothing to turn to in that hypothetical scenario.

There was simply no expert evidence placedbefore me to prove, as a fact, what the Russian law applicable to this case would either prescribe or proscribe. [76] In such circumstances, the authorities are clear that I must treat the law of Russia as being the same as that of British Columbiaon the point and, on that view (as can be seen from what I have addressed above in these Reasons), M.Z.’s contractual defence to O.Z.’sApplication for child support cannot avail him.

In this regard, the requirement that I apply the lex loci in the present evidentiary vacuumregarding Russian law is aptly expressed by Marceau J.A. (Lacombe and Huggeson, JJ.A., concurring) in Amosin v. Mercury Bell(The), [1986] F.C. 454 (C.A.): “It is well known that in countries governed by the English law, a court is not entitled to inquire proprio motu as to the content of theforeign law on the basis of which an action brought before it should be disposed of.

The court will not in principle take judicial notice offoreign law; it will not even consider foreign law as an ordinary fact (which it is not, in any event) about which it may require the partiesto adduce satisfactory evidence. If the parties, wilfully or inadvertently, fail to bring expert evidence of the foreign law, the court willact as if the foreign law is the same as its own law, it will apply the lex fori.” (at para. 6) [77] See also, in this regard, Royal Trust Corp. of Canada v. A.S (W.)S., [2004] A.J. No. 421 (Q.B.) at paras. 24ff, applied in BritishColumbia in Minera Aquiline Argentina SA v.

IMA Exploration Inc., 2006 BCSC 1102 , [2006] B.C.J. No. 1626 (S.C.) atpara. 189, Castcraft Industries Inc. v. Hunter Brown Ltd., [1988] O.J. No. 808 (D.C.); and, in a family law context, Azam v. Jan,[2013] A.J. No. 501 (Q.B.) at para. 45ff. and Ruck v. Ruck, [1980] A.J. No. 975 (Q.B.). [78] Finally, I will say that if I am wrong in this respect and the proper law of the First Agreement is not presumptively and

necessarily the law of British Columbia, to the extent its financial terms might be interpreted to create an absolute bar to O.Z.’s claimagainst M.Z. for child support to benefit the Twins in the circumstances of this case under the laws of Russia, I am satisfied that the FirstAgreement would remain unenforceable in this province on the ground that to give effect to those financial terms would be contrary topublic policy. [79] I stress here that I am now dealing in the hypothetical only; I repeat that there was no expert evidence called before me to saythat, under Russian law, a person in M.Z.’s shoes could, by contract, create an insurmountable obstacle to a claim for child supportbrought against him in his role as a stepfather by a former spouse (a person in O.Z.’s shoes), in circumstances where he had contributedto their support and otherwise stood in loco parentis relative to the subject children for some three years and where, as well, without thepayment by him of child support there would be no “reasonable arrangement made for the support” for the subject children (to track thelanguage of subs. 150(2) of the Family Law Act).

If, hypothetically, Russian law would permit such a Draconian result (which would besurprising indeed), I would consider that result to be “repugnant to ideas of substantial justice in this province” and, as mentioned, Iwould accordingly decline to enforce the First Agreement on public policy grounds: Vladi v. Vladi, (NS SC), [1987]N.S.J. No. 204 (S.C.-T.D.). UNFINISHED BUSINESS AND NEXT STEPS [80] The evidence at the hearing that is the subject of these Reasons for judgment was concerned with the question of entitlement. Ihave answered that question by determining that: (

a) M.Z. was the Twins’ stepfather for the purposes of O.Z.’s claim seeking child support for their benefit; and (

b) the language found in the First Agreement and the Second Agreement which M.Z. raises in defence of O.Z.’s claim against him forchild support to benefit the Twins is neither binding nor enforceable, thus, that language confers upon M.Z. no defences to O.Z.’s claim. [81] O.Z. is entitled to seek and recover child support from M.Z. for the benefit of the Twins and, accordingly, the next step in theseproceedings is to determine the quantum of his obligation and the time from which it should run, having due regard to, inter alia, theconsiderations mandated under subs. 147(5) and 150 of the Family Law Act and the evidence that O.Z. has already given to the effectthat she has not made any efforts to pursue S.S. — the biological father of the Twins — to pay child support for their benefit. [82] I consider that a one-day continuation (a “Quantum Continuation”) should suffice to permit the court to hear further evidenceand render a decision with respect to the appropriate quantum of M.Z.’s monthly child support obligation and the time from which itshould run.

In order to ensure that when that hearing ultimately proceeds, it proceeds efficiently and coherently, I make the following,further orders: (

a) The parties shall attend at the office of the Judicial Case Managers at the Port Coquitlam Provincial Court and

schedule a one-day Quantification Continuation before me for the first available, mutually convenient date but not sooner than six weeks following thedate of issue of these Reasons for Judgment; (

b) Not later than 14 days prior to the date of the Quantification Continuation, M.Z. must file with the court updated financialdisclosure materials in Form 4, with all attachments including evidence of income, benefits and the like from all sources and jurisdictionsfor 2016 and 2017 up to the date of filing, such that his financial disclosure is thereby made fully compliant with his obligations underthe Family Law Act and the Provincial Court (Family) Rules (the “Updated Financial Disclosure Materials”). M.Z. must deliver a filedcopy of his Updated Financial Disclosure Materials to O.Z. at her address for delivery by 4:00 p.m. on the same deadline; and (

c) The parties must each prepare four identical binders containing legible copies of any documentary evidence upon which theyintend to rely at the Quantification Continuation that has not previously been received into evidence and marked to date. Those bindersshall be indexed and tabbed and the documents contained in them shall be arranged in a convenient order. All of the pages of thosedocuments shall be numbered consecutively in the top right corner of each page.

Two copies of each of the parties’ binders containingadditional documentary materials (the exhibit copy and the judge’s copy) shall be filed with the court seven days prior to the date fixedfor the hearing of the Quantification Continuation. The parties shall each deliver one copy of their respective binders containing theabove-noted additional documentary materials to each other by 4:00 p.m. on the same deadline (i.e., seven days prior to theQuantification Continuation) and they shall each retain their respective fourth copies of their own binders for their own use. Thomas S. Woods, P.C.J.