One of the issues that can arise on the breakdown of a marriage or a common law relationship is whether or not there should be child support paid by the non-custodial parent. While these matters are generally fairly straightforward when it comes to the biological children of the parties, when there are step-children involved, discussions often ensue about whether or not child support obligations exist.
The Divorce Act provides that child support can be payable for “children of the marriage”. A “child of the marriage” is defined as the child of either or both spouses, so step-children can be “children of the marriage.” If one party stood in the place of a parent to the other party’s children during the marriage, he or she may be found by the Court to have an obligation to support those children. The amount of support is not necessarily just based on the Federal Child Support Guidelines. The Court will look at what existing arrangements are in place to support the child. Section 5 of the Federal Child Support Guidelines provides that “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 child support Order is, in respect of that spouse, such amount as the Court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.”
Recently, in the case of H. (U.V.) v. H. (M.W.) 2008 B.C.C.A. 177, the British Columbia Court of Appeal looked at the issue of whether the natural parent’s obligations to pay the Guideline amount of child support for his biological child comprises a baseline level of support, and whether the step-parent’s obligation is limited to “topping up” that child support to some reasonable level, or whether both natural and step-parent must pay the full table amount of child support under the Guidelines, thus maximizing the benefit to the child by fully drawing on both paying parents’ income streams. In this case, the Court of Appeal found that the proper approach is to first require the biological parent to pay child support in the full Guideline table amount. The Court must then assess what a “reasonable” standard of living is for the child, having regard to the standard of living that the child had when in the care of the step-parent. If there is going to be a gap between the standard of living for the period of time that the child lived with the step-parent and the standard of living the child has on a go forward basis, the Court will require the step-parent to top up child support.
For more information on this topic, or to discuss the consequences of a breakdown of marriage, contact Pushor Mitchell.