Foster Richmond LLP Blog

H.(U.V.) v. H. (M.W) (2008) BCCA 177: (CHILD SUPPORT)

http://www.canlii.org/en/bc/bcca/doc/2008/2008bcca177/2008bcca177.html

This is the leading case on the obligations of stepparents.  The issue before the court was whether it is “appropriate” as the term is used in s. 5 of the Guidelines, for a stepfather, who now has no contact with the children, to bear the primary support obligation, leaving the natural father, whose income is greater than that of the stepfather, with only a secondary obligation.

In a careful analysis of the Guidelines, the British Columbia Court of Appeal concluded that the natural parent, the father in this case, cannot escape his obligation under the Guidelines to pay the table amount of support, thus the stepparent’s obligation is to top-up that amount of support to give the child a reasonable lifestyle, commensurate with that of the mother, the father and the stepfather. Along the way, the Court of Appeal sets out a roadmap for the determination of child support in these not uncommon situations.

There are two important factors to consider which may differentiate this case from others:

1. When the stepfather and mother moved in together, the stepfather was anxious to assume full responsibility as the child’s stepparent, and he actually insisted that the natural father pay no child support.
2. The mother and stepfather separated as a result of the mother discovering that the stepfather had sexually assaulted the stepdaughter. The stepfather pleaded guilty to sexual assault and to making child pornography.

The Court stated that pursuant to s. 3 of the Guidelines, there is no discretion to depart from the Guidelines amount where the payor is a parent, but for the case of undue hardship. On the other hand, where the payor is not a parent (i.e. a step-parent), pursuant to s. 5 of the Guidelines, the court does have discretion to order an amount less than that provided in the Guidelines by examining what is “appropriate” having regard to the Guidelines and any other parent’s legal duty to support the child. The Court stressed that a recipient parent should not receive double the base amount of child support from both the natural parent and the step-parent – it should not be a windfall.

In describing the obligations of natural parents, the Court of Appeal noted:

Whether or not the father was doing so, the chambers judge should then have ordered him to pay his table amount… She could not, however, choose to give the father a “pass” in favour of pursuing the stepfather for all the support the children required.

In the end, the father was ordered to pay table support of $1,581 a month and the stepfather was ordered to pay $360 a month, as top-up child support.

The steps therefore are as follows:

1. Natural parent obligation (no discretion unless there is an undue hardship claim):
2. Determine the S.3 base child support obligation of the natural parent
3. Step-parent obligation (discretion)

The Court of Appeal determined that primacy should be afforded to the children’s standard of living, thus the obligation of the step-parent would be to top-up the support of the natural parent to bring the child’s standard of living to the same level as the natural parents as well as the step-parents.