L.W. v. J.W., 2018 BCPC 197 (CanLII)
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2018 BCPC 197 |
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Date: |
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File No: |
F71347 |
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Registry: |
Nanaimo |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
L.W.
APPLICANT
AND:
J.W.
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
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Appearing in person: |
Ms. W |
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Counsel for the Respondent: |
N. Ross |
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Place of Hearing: |
Nanaimo, B.C. |
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Dates of Hearing: |
March 23, 2016, October 26, 2017, December 4, 2017 |
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Date of Judgment: |
July 31, 2018 |
The Issue
[1] Ms. W is the mother of three boys, ages 18, 11 and 4, each of whom has a different biological father. Ms. W alleges that Mr. W is the biological father of the youngest child, but has abandoned any claim for child support for that child. Instead, she seeks an order that Mr. W pay child support for the eldest child, on the ground that Mr. W stands in loco parentis to that child. She says that Mr. W is the only father whom that child has ever known.
The Facts
[2] Ms. W’s middle child is in the care of the Ministry of Children & Family Development (“MCFD”). Ms. W says that the child was removed from her care because MCFD considered that Ms. W was unable to protect him from family violence from Mr. W. She has not seen the middle child in the past 18 months, and says that MCFD has denied her request for access visits with him. MCFD has placed the middle child with his biological father, to whom Ms. W pays $75 per month in child support. Ms. W’s eldest and youngest sons live with her. The biological father of the eldest son has not paid child support consistently in the past, but, recently has been paying $207 per month.
[3] Ms. W is a registered nurse. She earns about $33,000 per year. She is not able to work full-time because her youngest son has a severe intellectual deficit and severe autism, and requires constant care.
[4] Mr. W is 28 years of age. Ms. W is 43. They married on July 30, 2010, when he was 20 and she was 35. She says that he expressed a Christian resolve to remain celibate until their wedding night, and that that resolve was one of the things which attracted her to him. He says that they entered into a sexual relationship, which he characterizes as predatory, when he was 17. He says that she was physically and emotionally abusive toward him throughout their relationship. Mr. and Ms W separated on January 17, 2013.
[5] Mr. W’s family doctor and treating psychiatrist gave evidence. They agree on a compound diagnosis of depression and post-traumatic stress disorder, for which they have prescribed medication. Mr. W has not responded well to the medication. He complains of side effects, and says that he does not find that the medication improves his mood. Each of the treating physicians expressed the opinion that Mr. W’s mental health is a significant impediment to regular employment. They say that he will do well at a job for a period of time when he is feeling reasonably well, but that he will suffer from chronic and persistent lack of motivation when he is not feeling well. During the latter periods, his attendance at work will be sporadic, which will often cause employers to dispense with his services. The doctors opine that this pattern of behaviour is not mere sloth, but rather a manifestation of his mental illness.
[6] Mr. W attributes his poor mental health to abusive behaviour on the part of Ms. W. There is no medical evidence to support that assertion.
[7] There is no evidence that Mr. W was gainfully employed at any time during his marriage to Ms. W. He did some janitorial work during the marriage, but does not appear to have been paid for it.
[8] Mr. W now works as a roofer when he is able to work. His hourly wage depends on the job. In 2017, he worked for about 5 months at an hourly wage of $21. If it were necessary to assess his income-earning capacity, I would assess it at about $22,000 annually.
Legal Principles
[9] The governing provision of the Family Law Act SBC 2011, c. 25 is section 147(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.
[10] In Smart v. Wiewior [1990] BCJ No. 1991; 1990 CanLII 1673 (BC CA), 28 RFL (3d) 225, Justice Lambert said (underlining added):
The decision of Mr. Justice Anderson in Goodin v. Pawliw … illustrates that any contribution of any kind made by the spouse in relation to the children of the other spouse is sufficient to count as the contribution which will make the definition of parent apply.
The question is whether, when he used the phrase “… contribution of any kind …”, Justice Lambert meant to include non-pecuniary contributions. If not, Mr. W is not liable to pay child support for the middle child. For the reasons which follow, I think that Justice Lambert did not intend to say that non-monetary contributions by a step-parent would justify an order for child support under s. 147(4).
[11] Justice Lambert’s dictum must be understood by reference to the factual matrices before the Court in each of Goodin v. Pawliw and Smart v. Wiewior. In Goodin v. Pawliw [1982] BCJ No. 2311; 1982 CanLII 444 (BC CA), [1982] 4 WWR 751; 30 BCLR 369; 28 RFL (2d) 179, Justice Anderson described the issue in the following terms:
In 1970, the appellant advised his employer that he desired to have the two children covered under his medical and dental insurance plan. They have been covered ever since. In obtaining coverage for the children he also advised his employer that the children were his dependants. The appellant was not required to pay any premiums as these were taken care of by his employer. Counsel for the appellant submits that the conduct of the appellant in obtaining coverage for the children does not constitute support and maintenance because:
(a) the appellant only acted once, namely, when he took the step to have the children covered as his dependants,
(b) the coverage of the children was without cost to the appellant.
(c) all payments under the scheme are made by a third party.
He also submits that such coverage does not fall within the meaning of s. 56 of the Act.
There is not, in my opinion, any merit to these arguments. The act of covering the children over a continuous period of 10 years is indeed a positive contribution to support and maintenance. It is not correct to say that the coverage was without cost to the appellant. Such coverage is a fringe benefit obtained as the result of collective bargaining and it may be presumed that such benefit was not obtained without some cost to the appellant (for example, the acceptance of a lower wage scale which would not have been accepted but for the fringe benefits offered by the employer).
Justice Lambert described the circumstances before the Court in Smart v. Wiewior as follows:
The child lived with Mr. Wiewior and Mrs. Smart from 1977 to 1984 and over that period the finances of the couple were shared and there was a contribution made of $100 a month in relation to the child. I am satisfied, without the necessity of delving any further, and on the basis that Mr. Wiewior was paying off the mortgage on the house and earning the bulk of the money that was spent for the whole family unit, that the only possible conclusion is that Mr. Wiewior was a person who contributed to the support and maintenance of the child throughout the period from 1977 to 1984 and again in the first six months of 1986.
It is apparent from these passages that the question considered by the Court of Appeal in each case was what kind of pecuniary contributions are sufficient to impose a child support obligation under section 147(4). The Court was not asked to consider non-pecuniary contributions.
[12] The word “support” appears three times in section 147(4) [quoted in paragraph 9, above]. When it first appears, it clearly means financial support - one does not apply for an order for emotional support. The governing principle of statutory interpretation was stated by Justice Cory in Thompson v Canada 1992 CanLII 121 (SCC), [1992] 1 SCR 385 @ paragraph 27:
Unless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an act.
[13] Ms. W asserts that Mr. W provided emotional support and parenting to her eldest child during the marriage, and found her application for child support (i.e. financial support) on that assertion. The simple answer to her application is that the Legislature has expressly provided that a stepparent who has never provided financial support to a child is not liable to pay child support for that child. It necessarily follows that Mr. W is not liable to pay child support for the eldest child.
Disposition
[14] The application is dismissed.
[15] On October 26, 2017, I made an order that Mr. W make interim payments on account of his child support obligation for the eldest child in the amount of $350 per month. I have not been told whether he has made any of those payments. If he has, he may wish to apply to have them refunded.
July 31, 2018
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T. Gouge, PCJ