WILL YOU HAVE TO PAY CHILD SUPPORT FOR YOUR BC SEPARATED SPOUSE’S CHILDREN FROM A PRIOR RELATIONSHIP? WHAT IS BC “TOP UP SUPPORT”?
A “parent” has the obligation to support their children, and after separation if the children live with one parent (the recipient) then the other parent must pay child support (the payor) based on the Divorce Act and Family Relations Act and the CHILD SUPPORT GUIDELINES.
It’s obvious that the payor must pay support for his or her biological children, but in certain circumstances that parent is obligated to pay child support for children who are not “theirs”, biologically. What the court will look at is:
1) the length of the relationship
2) whether the parties are or were married
3) the relationship between the children and the payor parent
4) whether the payor parent contributed to the support of the children during the relationship
5) when the application is made for child support
Child support can be ordered based on two pieces of legislation: the Divorce Act and the Family Relations Act. The Divorce Act obviously only applies to married couples.
Under the Divorce Act, a person is liable for child support if he or she “stands in the place of the parent”. It is a finding of fact specific to each case, with some considerations for a court being:
-whether the child participates in the extended family in the same way as would a biological child;
-whether the person provides financially for the child (depending on ability to pay);
-whether the person disciplines the child as a parent;
-whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child;
-the nature or existence of the child’s relationship with the absent biological parent
Under the Family Relations Act, the issue is much more straightforward, and it is easier to be ordered responsible for child support. If a person is a “stepparent”, as defined by the Act, then he or she is presumptively obligated to pay child support, as soon as two hurdles are met. A person is a “stepparent” if:
a) the person and the parent of a child are or were married; or
b) the person and the parent of a child lived together in a marriage-like relationship for a period of 2 years
If one is a “stepparent” as defined above, then that person will be presumptively obligated to pay child support if both of the following conditions are met:
1) the stepparent contributed to the support and maintenance of the child for at least one year, and
2) the proceeding seeking child support against that stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child
Therefore, there is a “limitation period” of one year when seeking child support against a stepparent under the FRA. It is crucial that if you are in a relationship that could fit into the “stepparent” category that you consult a lawyer quickly upon the breakdown of the relationship, because you could easily run out of time.
Remember- the natural parent’s obligation is never extinguished by the appearance on the scene of a new “step-parent” but a step parent’s obligation may be reduced or abrogated entirely by the liability of the natural parent. Frequently, a “top up” award is made where both (or more!) “parents” share the liability where the amount might equal or exceed the CSG mandated amount based on the “parent’s” incomes. A recent 2008 BC Court of Appeal case called U.V.H. states that the natural parent cannot give the other natural parent “a free pass” in solely focusing on suing the step-parent for full child support. Often the new step-parent may wish the natural parent excluded from a child’s life while the they are in the relationship with one of the natural parents, however upon the relationship ending they will often seek a contribution from the natural parent. WE POINT OUT THAT A STEPPARENT CAN CLAIM SUPPORT FROM THE NATURAL PARENT IF THEIR EX-SPOUSE FAILS TO DO SO AND COMES SOLELY AFTER THEM OR THE NATURAL PARENT DOES NOT OBTAIN PROPER SUPPORT FROM THE NATURAL PARENT BEFORE COMING AFTER THE STEPPARENT!
The issue of liability to pay stepparent child support and what the amount should be is a complex one. Call us toll free at 1-877-602-9900. We have offices in Vancouver, Surrey and Fort St John BC and we routinely act throughout the province.
I hope this article article helps -James Cudmore, Associate at MFLG. firstname.lastname@example.org