IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The issue for the Court to resolve is child support. The parties began a relationship in approximately August of 2011, married on December 31 of that year and separated in July 2016. T.L.M.S. (formerly T.L.M.F.) had two children at the time of the start of the relationship, and D.J.F. had one child. The new household comprised four persons, with D.J.F.’s daughter living in the home each month for two weeks in a shared parenting arrangement with his former wife.

[2]           The child support issue is centered on the circumstance of stepchildren and the financial obligations of the stepparent.

[3]           An interim application for child support was dismissed in November 27, 2017. Judge Mengering made findings of fact which out of comity I will rely on, with additional findings that I have made on the evidence that has been presented to me in our hearing, which commenced in July 2019. I will not make an order regarding D.J.F.’s daughter, as this claim was not strenuously pursued. Any outstanding application in that regard I now dismiss.

[4]           The parents both work as professionals, T.L.M.S. is a teacher and D.J.F. is a building inspector. They had the similar income of about $70,000 to $78,000 in 2018. Since that time, T.L.M.S. has been on a reduced salary with disability income due to medical issues. I accept the evidence that under her benefits she has qualified for support by terms of her extended health plans. She is expecting to return to work with reduced hours in March 2020; however, this has been interrupted by the current school shutdown. D.J.F. too has a reduced working environment because of the ongoing health directives from the provincial government. The work pattern and income levels will not change for the foreseeable future, presumably re-establishing a more normal pattern in September 2020. I will rely on the financial information that I obtained in the exhibits and the testimony, and address this issue in my analysis.

[5]           In 2011, T.L.M.S.’s children were 6 and 11. The son, M.K., was born [omitted for publication], and the daughter, R.F., was born [omitted for publication]. The biological fathers have not contributed in a consistent pattern and T.L.M.S. has had difficulty pursuing the two fathers. M.K.’s father resides in the Lower Mainland. The father of R.F. resides in Nicaragua.

[6]           A court order was obtained in 2004 for support from M.K.’s father, who now lives in the Surrey area. The order also included a protection term. T.L.M.S. is reluctant to pursue enforcement for a number of reasons, primarily she does not want the person to have ongoing contact with M.K. She believes that he is unstable, has limited resources and abuses drugs. T.L.M.S. also had concerns that enforcement may jeopardize his status in Canada as he was formerly from Uganda. Despite the limited contact, this father attended M.K.’s high school graduation ceremony in [omitted for publication].

[7]           T.L.M.S. stated that the father in the Vancouver area was on reduced income, some form of a disability income. A copy of a 2017 welfare receipt was made as an exhibit. She did not have current information of his finances.

[8]           T.L.M.S.’s mother has maintained some contact with M.K.’s father and there has been some visits in the Vancouver area between M.K. and his biological father. There continues to be cell phone contact as well.

[9]           The father of R.F., according to T.L.M.S., was working in Nicaragua as a bus driver and may have been self-employed. T.L.M.S. obtained a court order in 2011 which did not include any child support but simply restrained Mr. F. from removing the child from British Columbia. At the time there had been threats to remove the child from T.L.M.S.’s care. T.L.M.S. understands that R.F.’s father has cancer.

[10]        T.L.M.S. has not pursued enforcement of this court order either, as she believes that it is not practical and the effort and perhaps legal expense would be extensive. Mr. F. sends money irregularly and also on special occasions. The daughter maintains sporadic contact using the cell phone and social media.

[11]        T.L.M.S. testified that she currently resides in a half-duplex with the two children. This property is encumbered with a mortgage in the approximate sum of the $130,000. D.J.F. has his own residence and following separation he was able to borrow funds from friends and together with financing he purchased this property. After the separation in 2016, family assets were divided in a judicial conference in the B.C. Supreme Court on October 5, 2018. In that settlement, T.L.M.S. received an equalization payment of $30,000.00.

[12]        T.L.M.S. testified in detail about the financial matters of the relationship. She stated that she resided in the duplex at the time that she met D.J.F. and that this property was used to finance the purchase property at [omitted for publication], the family home. D.J.F. contributed to the purchase of the property as well, but as T.L.M.S. stated, during the five-year relationship the parties spent excessively and utilized the equity in the family home. At different times, the parties would rely on lines of credit to meet family expenses.

[13]        In particular, T.L.M.S. indicated that D.J.F. purchased numerous motor vehicles incurring greater and greater debt as he did so. T.L.M.S. gave as an example that a 2013 Jeep Wrangler was purchased for $68,900 and was placed in her name because of restrictions on D.J.F.’s credit.

[14]        D.J.F. had completed a consumer proposal prior to the relationship and in that proceeding, he was able to keep his house and the equity from this home, some $15,000, was used in the purchase of the [omitted for publication] house.

[15]        T.L.M.S. recognized that issues surrounding family assets had been concluded in the court on October 5, 2018, but she wished to emphasize the fact that her current circumstance has her residing in the duplex with her two children which she owned prior to meeting D.J.F. At that time the duplex was debt-free but now she has a mortgage on the property.

[16]        T.L.M.S.’s medical condition is complicated because of several medical issues. She had a ruptured disc in her neck which required treatment and in 2016 she was off work for three months. In May 2019, she had qualified for long term disability support because of a speech disability in which she lost her voice. The specialists in Vancouver have attributed this difficulty to stress. She noted that the speech impairment started in September 2018. There is a return to work plan which included T.L.M.S. starting limited employment in March 2020. As noted above this plan was interrupted because of the recent public health orders.

[17]        T.L.M.S. stated that in 2016, medical benefits that she could have obtained under D.J.F.’s plans were unavailable as he had her removed as a beneficiary. She was unable to work for three months.

[18]        T.L.M.S. indicated that she had to deal with D.J.F.’s financial spending and general carelessness over the course of the relationship and gave as an example that her own student loan which she had been paying on since she had graduated in 2002 went into default as D.J.F. stopped payments. She had been paying $100 a month, and once in default the loan was due in the full amount of $19,000 and she had to obtain a line of credit to fully pay out this debt. D.J.F. would not assist in repaying the line of credit.

[19]        Financial problems plagued the relationship and were a constant source of dispute. T.L.M.S. believed she had no role in the decisions being made. She was upset to the point of sobbing when they bought yet another car. There were also recreational vehicles the family purchased that she did not agree with. All purchases were financed and they never paid with cash as there were limited savings. She stated it was a financially abusive relationship.

[20]        In the home, T.L.M.S. stated that D.J.F. acted as a parent and set certain rules. He determined when the children were signed up for extra-curricular activities. He would monitor food, and secured a cupboard with a lock so the children could not take snacks and treats at any time.

[21]        In cross-examination, T.L.M.S. agreed that she preserved an education savings plan for M.K. This sum was continued during the relationship.

[22]        T.L.M.S. described the relationship of her children with D.J.F. D.J.F. was active in the family home and he helps with the chores including assisting at bedtime and homework. Beyond his decision-making role with household finances he decided activities including camping and fishing excursions. He also was involved in organizing vacation times throughout British Columbia. She stated that she would arrange medical and dental appointments for her children and D.J.F. would do the same for his daughter as he relied on his former partner to set the schedule.

[23]        D.J.F. had a role in discipline and attended parent teacher interviews as well as speaking with the school when there were any behavioural issues with the children. In particular a complaint about M.K.’s interference with another student’s cell phone became an issue for which D.J.F. felt the child should be responsible and deal with consequences.

[24]        The family shared the daily chores and all three children assisted. There were recreational activities such as basketball, gymnastics, hockey, and archery. The family attended the sport tournaments the children participated in and time was spent in outdoor recreation including camping, hunting and fishing.

[25]        There were family vacations to parts of Alberta and British Columbia and visits to family relatives in Calgary and Vancouver.

[26]        T.L.M.S. noted that M.K. as a teenager was challenging—he was inquisitive and would ask questions. During the marriage there was a gradual deterioration in the relationship between M.K. and D.J.F. M.K. would object to D.J.F. having the final say in matters and often asked “why”. D.J.F. had difficulty reacting to what he felt was disrespect.

[27]        T.L.M.S. stated that she maintained the education fund and that it was currently in the amount of approximately $28,700. She continued to make payments during the marriage of about $2,145 annually or about $10,725 in the five years leading up to August 2016.

[28]        T.L.M.S. remains under doctor’s care to remedy her medical ailments and a specialist is assisting in “voice recovery” which she has been told is progressing. In addition, T.L.M.S. has seen counsellors for guidance as a result of the troubled relationship with D.J.F.

[29]        The child of D.J.F., T.F., was in the home for two weeks of every four weeks, and T.L.M.S. treated her as a step child. She was the care giver for all the three children and of course, when D.J.F. was at work, she was the adult watching over his child. T.F. would join them for excursions and she was an active member of the family who had extra-curricular activities that T.L.M.S. and D.J.F. supported. Conflict did arise because T.L.M.S. saw that this child would get more attention and provision than her two children. As she viewed it, T.F. had more opportunities and D.J.F. and T.F.’s mother were able to provide the activities yet her own children did not get the same treatment or financial support. This created friction in the household and the children were aware of the disparity.

[30]        D.J.F. testified and in large measure confirmed the relationships that persisted in the household. He said that he and M.K. had difficulties from the beginning as this young man was not wanting his mother to get married, and he resented the presence of D.J.F. Unlike T.L.M.S. who described the child as challenging, he saw M.K. as confrontational and a teenager who was given too much leniency by his mother.

[31]        He commented that the relationship was trying. M.K. would avoid him, and as an example, once he went to the other side of the road to avoid him. On another occasion, he spat in D.J.F.’s coffee and said “there, you want it now.” He agreed that he locked a kitchen cupboard that not only had treat and snacks which were meant for lunches, but also alcohol.

[32]        Further difficulties arose as M.K. was found to have broken school rules. D.J.F. stated that there were meetings with the school and he thought M.K. should have been grounded, but T.L.M.S. did not take any steps and D.J.F. said generally T.L.M.S. did not discipline.

[33]        D.J.F. saw the arrangements as accommodating the two sets of children and that the care responsibilities rested with the biological parent. He described that discipline and decisions about outside activities were made by the biological parent. D.J.F. viewed T.L.M.S. as an active stepparent in as much as she and T.F. got along fairly well. This child was in French Immersion so neither adult could assist to any great extent with her studies.

[34]        He refuted the claim that T.F. received any special treatment. This daughter’s mother would select programs or activities for the child and tell D.J.F. what his share of the expense was. He did not pay child support but he shared equally any special expense.

[35]        D.J.F. agreed that there was sharing of tasks for the children. When T.F. was in their home, he would be the one to take her to medical appointments but they both took up the travel required for any extra-curricular activities. His daughter suffers from the celiac disease and he was responsible for any appointments, blood tests and medication, and he shared all such expenses with T.F.’s mother under their arrangement for support. He estimated his share of these medical expenses to be about $1000 annually.

[36]        D.J.F. stated that finances were a point of conflict. They did share a joint account but they had separate charge cards. D.J.F. deposited part of his salary each month into the joint account. He did come into the relationship having completed a consumer proposal, and had few assets, but he did contribute all his equity from his house to buy the family home.

[37]        D.J.F. did describe in some detail the finances during the marriage, in part to respond to questions raised by T.L.M.S. He claimed that the spending was poorly controlled and money was spent until the next pay cheque. There were numerous purchases of trucks and cars and also recreational vehicles. Loans were obtained and rolled into the next vehicle. They did have a line of credit and at one point had three mortgages.

[38]        In cross-examination, he disputed that he was the spend thrift. All the motor vehicle purchases were made together. The upgrade from the duplex to a larger family home made sense as it was a new, blended family. He did not have extravagant expenses, and his outdoor recreation of archery and hunting was also a family activity. He coached the local archery club and was able to teach the children. The family enjoyed the camping and outdoor experience.

[39]        He explained that the difficulties he experienced with M.K. did not come about because he was demanding or authoritarian. He never had the final say. D.J.F. stated that there were differences in the parenting style, and he would have exacted more discipline of M.K. considering his behaviour. There had been instances of the use of alcohol, and also school complaints of spitting on a girl by a group which included M.K. He would not agree that M.K. should be then allowed to go on a trip to Cuba; he wanted to see some punishment.

[40]        D.J.F. disagreed that T.F. received preferential treatment. She did play basketball and went to tournaments. This expense was shared with T.F.’s mother. She also was in band and had some piano lessons. The two other children did not have the same advantage, but for D.J.F. that was no reason not to provide these opportunities. He said that he would do anything he could for his child, but there were limitations of finances.

[41]        D.J.F. wants to assist his daughter in university training. He does not have any education fund to provide and recognizes expenses can mount up if the child wishes to attend university in Vancouver. He is hopeful that he can assist but expects the child will have to seek other support, possibly through student loans.

[42]        The Application and Reply were brought pursuant to the provisions of the Family Law Act. The relevant provisions are Section 146 and 147:

[43]        I have reviewed the following cases:

[44]        Counsel on behalf of D.J.F. have provided the following cases:

[45]        A duty arises for a stepparent if the relationship lasted one year and the Application was commenced within one year after the last contribution to the child’s support. This duty is modified depending on the circumstances surrounding the relationship between parent and child or children.

[46]        In Section 147 (5) the Court is to exercise a discretion based on consideration of the standard of living experience by the child during the relationship and the length of time during which the child lived with the stepparent.

[47]        An assessment of the parental relationship will include (from D. (D.C. v. C. (R.J. P.) above at Para 130):

[48]        And at Para 131 of D (D.C.) above:

[49]        The Court assesses the standard of living of the child, both before the last contribution and after contribution or in some cases, separation. (Henderson see above at Para 85)

[50]        The Court is empowered to exercise a reasonable discretion to determine the level of support that may be appropriate considering the differences with standards of living, both ‘pre’ and ‘post’ termination of financial contribution. (See Duncan at Para 110)

[51]        Under Section 150, the Court may make an order that is different from Child Support Guidelines if the Court determines that applying the Child Support Guidelines would be inequitable on consideration of the agreement, order or special provisions. The courts have determined that the section gives the Court the ability to make a retroactive order as there is not explicit restriction stopping the Court from determining the date from which the order may take effect. (See Brown v. Kucher 2015 BCSC 1258 (CanLII), 2015 BCSC1258 and 2015 BCCA 267)

[52]        Section 5 of the Guidelines specifically deals with the responsibility of a stepparent and sets out that reasonable discretion of the court is exercised having regard to the “appropriate” amount of support in light of the Guidelines and the other parent’s duty of support.

[53]        The Sections of the FLA incorporate the principles set out in the earlier BC Court of Appeal case H. (U.) v. H. (M.W.) 2008 BCCA 177 and this decision provides detail about how to assess “appropriate” and to determine ultimately a reasonable support amount recognizing principles from Section 1 of the Guidelines, including finding a fair standard of support for the child/children and also to ensure consistent treatment of parents and children who are in similar circumstances (see Para 40).

[54]        T.L.M.S. in her application is responsible to prove her claim on the balance of probabilities. In other words, is it more likely than not that she is entitled to obtain child support from D.J.F., the stepparent?

[55]        Both T.L.M.S. and D.J.F. provided candid answers in their testimony. T.L.M.S., representing herself, was able to question D.J.F. and although, as she noted, not as extensively as she was cross-examined, I was satisfied that she was able to present evidence and obtain testimony on the key factors that are required for the Court to properly assess a stepparent's responsibilities. She dwelt on some historic points relating to family assets and how the family fortune and equity was dissipated. There are limitations on how much use the court can make up such information, but I am satisfied that details about spending in the family household does assist me to understand financial circumstances at the time of separation.

[56]        T.L.M.S. was nervous to be presenting her case and it was apparent that she was frustrated by the court process and having to discuss personal matters in detail. She perhaps did not fully accept the principles the law has developed concerning stepparent responsibilities and this may have conditioned how she conducted her case. I find T.L.M.S. to be a credible witness. She forthrightly spoke of her own poor spending habits. She recognized that she had difficulty now remembering dates and some details. T.L.M.S. may not have been as reliable on specific details, but I accept her evidence on the major points.

[57]        D.J.F. was also a credible and reliable witness. He acknowledged his insolvency that occurred just prior to the relationship. He disputed some of the amounts and details of the various assets that were bought in the relationship but also accepted that the financial circumstances as related by T.L.M.S. were in large part accurate.

[58]        In assessing the reliability of both parents it is my conclusion that T.L.M.S. would tend to exaggerate or embellish and D.J.F. would tend to minimize. I have taken those characteristics into account as I assessed the testimony. There is no substantive difference certainly on the main points of the relationship.

[59]        T.L.M.S. described the family activities and the spending habits of the two adults during the relationship. I find that this relationship of five years functioned as blended families do. Each parent brought into the relationship habits and obligations that added to difficulties of all adults as they begin a new household. Friction developed in short order about the financing of a new family home, and at the same time as expensive motor vehicles were bought and sold. T.L.M.S. had medical illnesses that hampered the family income. On top of all of that, there were three young adults who had to be related to, with guidance and discipline dispensed in satisfactory measure.

[60]        I note that following separation T.L.M.S. instigated conflict at D.J.F.’s residence when, shortly after the separation, she attended to retrieve personal items belonging to her daughter. In the argument, she grabbed and pushed D.J.F. This occurred in front of the child T.F. After this encounter, T.F. refused to have any further contact with T.L.M.S. The police attended and the matter was resolved.

[61]        This argument and interaction took place, obviously, shortly after a difficult separation. In Falvai v Falvai 2008 BCCA 503, the Court of Appeal at paragraph 12 reproduced comments of the trial judge:

[62]        I view this incident as an example of just the type as noted by the trial judge. T.L.M.S. has a number of medical issues with which she is contending and aftermath of the five year relationship and a time of great stress. The parties discussed separating after about a year of being together, and even though they reconciled, the situation did not change and simply deteriorated further.

[63]        Beyond the financial detail presented in the trial, I conclude that the two adults carried on spending and accumulating more and more debt. They shared a joint account, to which D.J.F. contributed a portion of his income. They did separate the benefit plans for each child: D.J.F. carried only his daughter on his employer’s plan. None of that changes my assessment that they both were stepparents in this blended family:

[64]        I do not accept that D.J.F. is the stepparent to M.K. as the evidence clearly shows that relationship never developed to a stage of shared reliance and support. D.J.F. did not reach a level of a participating parent. T.L.M.S. remained the primary caregiver. It is my view that M.K.’s father had a secondary role and has met with this child on occasion and provided limited financial support. T.L.M.S. had a duty to pursue this issue and therefore D.J.F. obligation is to provide child support is reduced. In my view, this obligation never truly arose.

[65]        I reject the claim for support for T.F. on a similar basis. D.J.F. and T.F.’s mother had a shared care arrangement. T.L.M.S. only saw this child for two weeks of each month. Decisions regarding school, music classes, and outside activities were organized and funded by T.F.’s mother and father. T.L.M.S. had no role in this arrangement and in fact resented the extra opportunities that T.F. enjoyed in contrast to her children.

[66]        I do accept that R.F. is a stepchild for which D.J.F. has responsibilities. This child has a father residing in a distant nation. It is my view that T.L.M.S. made a reasonable, practical decision not to pursue this person. Some financial support has been forwarded sporadically but to take any additional steps would be problematic and unlikely to achieve substantial results. D.J.F. should contribute support for the care of this child.

[67]        D.J.F.’s obligation is diminished however due to the legal principles established by the courts that the biological father has the primary responsibility. The fact that T.L.M.S. does not pursue legal claims and chooses to rely on a more generous relationship with Mr. F. should not create for D.J.F.’s a long-term responsibility. In addition, the parties in 2018 resolved the division of family assets and T.L.M.S. received a substantial payment.

[68]        I take into account a number of circumstances to assess the appropriate amount of support:

[69]        It is not appropriate that any amount should be awarded for extraordinary expenses. As the parties separated with restricted means, such expenses would not be reasonable considering the means, needs and circumstances of both parties.

[70]        It is unfortunate that T.L.M.S. now has a mortgage on the half-duplex when before the marriage, this property had no financial encumbrance. Although she remained convinced that she has been impoverished and a fair balance can be struck with monthly child support, it is my determination that the two adults incurred large debt that only was resolved with disposal of the family home. The financed life style of those five years was never fully funded or paid for until the real estate was liquidated. It is not appropriate to make child support orders based on those circumstances.

[71]        D.J.F.’s obligation to pay support should end at the time of the Supreme Court order of October 5, 2018. At that point T.L.M.S. received the equalization payment. I am bound by Section 150 to take into account this agreement and adjust D.J.F.’s obligation as appropriate in the circumstances.

[72]        It is my assessment that an appropriate amount of child support is the sum of $250.00 monthly. I have reached this conclusion on the basis that a standard support of about $700.00, given D.J.F.’s income, should be reduced because of the failure to pursue the biological father. I also reduce the sum to a level of support that reflects the limited financial means of D.J.F. at the time of separation. He continued to pay household debts after the separation.

[73]        Counsel for D.J.F. will draft the order and the signature of T.L.M.S. to the draft order is dispensed with, provided T.L.M.S. receives a copy of the draft order at the time it is submitted to the Registry for entry.