If your child’s co-parent has claimed that they cannot afford to pay their child support obligations, what are your options? Under these circumstances, it is important to remember that child support is the right of the child, not the receiving parent. This means that parents cannot negotiate a lower monthly rate than the minimums prescribed by the Federal Child Support Guidelines. Any such agreement would be considered invalid by the courts.  Instead, there are two primary avenues for enforcing a child support order.

First, the recipient parent’s best avenue to enforce a support order is to register their separation agreement or court order with the Family Maintenance Enforcement Program (FMEP). This is a public organization that assists parents with enforcing both child and spousal support orders. The FMEP can enforce the orders by “attaching” it to the debtor’s income, including wages, tax returns, rental revenues, etcetera. The organization’s Director may also seek a court order to direct the payment of security for future support obligations from larger sources of funds, e.g. an inheritance. If the debtor parent refuses to pay, the FMEP Director may, among other remedies, report them to the credit bureau, seek a seize-and-sell court order, or instruct ICBC to refuse their license and vehicle registration issuance or renewal.

To enroll in the FMEP, you must submit an application which provides details about the paying parent and a copy of your support agreement or court order. The application can be found here. Upon completion, the EMEP will provide a Notice of Enrollment to the paying parent. The key advantage of the FMEP is that it is free. The disadvantage is that the receiving parent cannot undertake any enforcement proceedings themselves while they are registered in the program.

The recipient parent’s second enforcement avenue is to privately seek court enforcement remedies under section 230 of the Family Law Act. Specifically, they may request that the debtor parent pay security for future support obligations, plus legal expenses, up to $5,000 dollars in damages for the delayed payments, and a fine of up to $5,000.  If the debtor further fails to comply with these payments, the court may make an order for their imprisonment for up to 30 days. Importantly, this imprisonment will not discharge the debtor’s support obligations; it is simply an enforcement mechanism. Of course, this is a draconian option that the courts will rarely apply.

For debtor parents experiencing genuine financial difficulty that is impeding their ability to meet their support obligations, they may respond to enforcement action by applying to the courts for a variation order under section 152 of the Family Law Act or section 17 of the Divorce Act. On proof of a material change that renders the original order inappropriate, the court may vary the obligation amount, suspend enforcement proceedings, or make an order it deems otherwise appropriate.

For more information regard child support and their enforcement, please contract our office at (250) 753-2202.

What happens to spousal support when the person making the payments (the “Payor”) passes away?  Does the spousal support die along with the Payor or does the obligation survive, binding the estate of the Payor?

When married or common-law couples end their relationship, sometimes spousal support arises.  Spousal support is payment from one spouse to the other in recognition that one of the parties to the relationship may have sacrificed their own financial independence to help the overall landscape of the relationship whether that was providing care to the children of the marriage or giving up opportunities they would have otherwise been able to pursue had they not been supporting their partner.  Spousal support is usually paid pursuant to a separation agreement or a Court order.

Pursuant to s. 170(1)(g) of the Family Law Act of British Columbia (the “Act”), an order respecting spousal support can provide for payment after the death of the Payor.  S. 171(1) of the Act provides the elements that have to be present before a Court will order spousal support after the death of the Payor:

  • that the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;
  • that the estate of the person paying child support or spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all claims on the estate, including those of creditors and beneficiaries; and
  • that no other practical means exist to meet the need referred to in paragraph (a).

If there was an agreement or order in place that provides for spousal support after death, then those provisions will have full force and effect and will bind the Payor’s estate until the period of payment provided for in the agreement or order expires.  To end the spousal support payments before the agreement or order expires, the Personal Representative of the Payor’s estate can apply under s.171(2) of the Act to set aside the agreement or order.

If the agreement or order for spousal support is silent as to whether spousal support survives death, the person receiving support can apply under s.171(3) of the Act to get an order requiring the Payor’s estate to continue to pay spousal support.

What about spousal support payments that are in arrears at the time of the Payor’s death?  Any spousal support payments in arrears at the time of the Payor’s death, will constitute a debt of the Estate: L.S.M.K. v. J.W.K., 2019 BCSC 2025.

Please contact Heath Law LLP at 250-753-2202 if you have any questions regarding spousal support or have any other Family Law related concerns.

 

Child Support Obligations Even if not Married?

Is there potential for child support obligations even if you are not the child’s biological parent.  Yes. Similarly, can there be child support obligations even if you are not living with the child? Yes.

For a stepparent to have support obligations the following must be true:

  1. You must be considered a stepparent under the Family Law Act (FLA);
  2. The stepparent contributed to the support of the child for at least one year; and
  3. 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.

 

  1. Being a Stepparent

A stepparent under the FLA 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. Being a stepparent is therefore incumbent on the definition of “spouse” as well as “lived with”.

Spouse

A spouse under the FLA is a person who has lived with another person in a marriage-like relationship, and has done so for a continuous period of at least 2 years. There is no checkbox list to determine when there is a marriage like relationship. But here are some indicia:

  • Whether the parties lived in the same residence and, if so, what were the sleeping arrangements in the shared residence;
  • Whether the parties prepared and ate their meals together;
  • Whether the parties performed domestic chores, tasks and services together;
  • Whether the parties had sexual relations, maintained an attitude of fidelity, and communicated on a personal level with one another;
  • Whether the parties bought each other gifts and celebrated special occasions together;
  • Whether the parties shared financial arrangements and supported each other financially;
  • Whether the parties conducted themselves socially and in public as a married couple.

The presence or absence of any one of these factors is not determinative of a marriage-like relationship. The relationship must be taken in its entirety to determine whether a marriage-like relationship exists.

Lived With

As a matter of law, it is well established that parties can maintain two residences and still be in a marriage-like relationship: W. (S.L.M.) v. W. (M.R.G.), 2016 BCSC 272. “Lived with” can involve parties living under different roofs for extended periods of time.  Staying over several times per week could be found to be “cohabitation”.

  1. Contributed to the Child for at Least One Year

Expenditures by the stepparent on behalf of the stepchild that are trivial in nature or are sporadic or in the character of gestures of occasional generosity or kindness may not qualify as contributions that attract a duty to support: McConnell v. McConnell, 2007 BCSC 748 (B.C. S.C.) and D. (D.C.) v. C. (R.J.P.) 2014 BCSC 2420. The support contributions must be of a more significant nature. Examples from the case law include contributions made by the stepparent to shelter, food or vacations: Z. (O.) v. Z. (M.), 2016 BCPC 416.

Conclusion

It is very important to know your legal rights and obligations when you enter into a relationship with another person, especially when that other person has a child from a previous relationship. If you are unaware of your legal position in relation to the child, you may end up subject to unwanted support obligations.

If you are concerned about potential child support obligations or if you have any other family law concerns please contact Heath Law LLP 250-753-2202.    

The recent decision AL v. LW, 2017 BCSC 964 [“AL”] illustrates how the court might apply the factors for determining the best interests of the child under BC’s Family Law Act [“FLA”], and also illustrates how a “section 211” report may assist the court in determining the best interests of a child.

A section 211 report refers to section 211 of the FLA which authorizes the court to appoint a person to assess the needs of a child, the view of a child or the ability and willingness of a party to satisfy the needs of a child.  These reports were sometimes called “custody and access reports” or “parenting reports”.

In AL, the father sought increased parenting time with a child. The parties had never married but had lived in a marriage-like relationship. The parties had executed a Separation Agreement which addressed guardianship and parenting responsibilities.

The court also had the benefit of a section 211 report prepared by Dr. England.

The court noted that the key legislative provisions of the FLA that relate to increasing parenting time are sections 37 and 40, which are reproduced below:

37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(a)  the child’s health and emotional well-being;

(b)  the child’s views, unless it would be inappropriate to consider them;

(c)  the nature and strength of the relationships between the child and significant persons in the child’s life;

(d)  the history of the child’s care;

(e)  the child’s need for stability, given the child’s age and stage of development;

(f)   the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g)  the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h)  whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

(i)   the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j)   any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

40 (4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(a)  that parental responsibilities should be allocated equally among guardians;

(b)  that parenting time should be shared equally among guardians;

(c)  that decisions among guardians should be made separately or together.

The Court placed the above provisions in context by adopting KDP v. ARK2011 BCSC 1085 (CanLII):

[1]        No parents are perfect. All have flaws of one kind or another. If families stay together, except in those rare circumstances in which a child is found to be in need of protection, the state and the courts allow imperfect parents to raise their children as best they can. The children, in most cases, are no worse for wear for the experience.

[2]        If families separate, however, and issues of custody and access arise, in the guise of determining the best interests of the child, a parent’s flaws of character and conduct are put under a microscope. In such circumstances, care must be taken not to lose sight of the strengths that a party brings to the challenge of raising a child.

As an illustration of how the courts will consider the individual subsections of section 37 of the FLA, refer to the below paragraphs from AL, as drafted by Mr. Justice Funt:

[65]        With respect to s. 37(2)(a), … the daughter’s health and emotional well-being would benefit from far greater time with her father. The mother and father each has the qualities of a good parent as does the mother’s common-law partner. I agree with Dr. England’s statement: “There is no reason to deprive [the daughter] of the benefit of having her father as fully involved in her life as possible”.

[66]        With respect to s. 37(2)(b) and (c), it is apparent that once settled with her father, the daughter enjoys a caring, nurturing, and loving relationship. The daughter enjoys being with her father. I find that it would be in the daughter’s best interests to have far greater contact with her father.

[67]        With respect to s. 37(2)(d), the predominant history of the child’s care has been with her mother. For this reason, the transition as Dr. England recommends is a prudent course which I adopt as appropriate in the case at bar. I also adopt Dr. England’s recommendation that the daughter have individual therapy sessions with a copy of Dr. England’s report given to the therapist. I will also order that a copy of these Reasons be given to the therapist.

[68]        With respect to s. 37(2)(e), the parenting time Dr. England recommends will provide the needed stability. The parents share the view that the current schooling arrangements are appropriate and there are no plans of either of the parties to move from the Victoria/North Saanich area.

[69]        With respect to s. 37(2)(f), I am satisfied that each of the mother, the father, and the mother’s common-law partner has the ability to exercise appropriately his or her responsibilities.

[70]        With respect to s. 37(2)(i), the Separation Agreement addresses most aspects of guardianship and parenting responsibilities. Although I will not order the appointment of a parenting co-ordinator, I would encourage the parties to retain a parenting co-ordinator. Although the costs associated with a parent co-ordinator are significant, the costs are likely less than those associated with mediation or returning to court. A parenting co-ordinator can also make decisions quickly as the need arises.

The Court ultimately permitted the father to have increased parenting time in accordance with the schedule and transition periods set out in Dr. England’s section 211 report.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

 

 

Effective November 22, 2017, the Federal Child Support Guidelines Child Support Table has been updated to account for tax and other changes since the previous Child Support Table came into effect on December 31, 2011.

The minimum gross annual income at which the Child Support Table applies has been increased from $10,820.00 under the 2011 Table to $12,000.00 under the 2017 Table.  As a result, the Table no longer specifies a child support amount for payors living in British Columbia with an annual income of $11,999.00 or less.

For child support payors living in British Columbia with an annual income of between $12,100.00 and approximately $27,000.00 (depending on the number of children for which support is being paid), specified child support has decreased under the 2017 Table.

For child support payors living in British Columbia with an annual income exceeding approximately $27,000.00, specified child support has increased under the 2017 Table.

The maximum annual income for which child support is specified for remains unchanged at $150,000.00.  Beyond that income, there is a formula upon which child support is based.

For example, a payor living in British Columbia with an annual income of $17,000.00 paying child support for one child will now pay $111.00 per month under the 2017 Table as opposed to $133.00 per month under the 2011 Table. A payor living in British Columbia with an annual income of $75,000.00 paying child support for 3 children will now pay $1,522.00 per month under the 2017 Table as opposed to $1,483.00 per month under the 2011 Table.

The changes to the Table are relatively minor, however, over a number of months or years may add up. If you are required to pay child support, or receive child support as a result of an order made prior to November 22, 2017, we would encourage you to consult with a lawyer to ensure that a child support underpayment, or overpayment does not accumulate.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law at 250-753-2202.