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

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*H.(U.V.) v. H.(M.W.),*
	2008 BCCA 177

Date: 20080428

Docket: CA034388

Between:

H. (U.V.)

Respondent

(Plaintiff)

And

H. (M.W.)

Appellant

(Defendant)

H. (L.G.)

Respondent

(Defendant)

Subject to Criminal Code of canada, former S. 486(3); now s. 486.4(1)

Before:	The Honourable Madam Justice Newbury
	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Frankel
D.J. Manson		Counsel for the Appellant (Defendant)
G. Sherman		Counsel for the Respondent (Plaintiff)
H. (L.G.)		Acting on his own behalf
Place and Date of Hearing:		Vancouver, British Columbia
March 3, 2008
Place and Date of Judgment:		Vancouver, British Columbia
April 28, 2008

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Frankel

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1] This appeal illustrates with some acuity the challenges of applying the Child Support Guidelines (in this case, provincial Guidelines, which are adopted by regulation in virtually the same terms as the federal Guidelines), to a support dispute that arises not between the two parents of children, but between a stepfather on the one hand, and the natural parents on the other. Ultimately, the policy objectives behind the Guidelines must be addressed: are they intended to provide the children with a standard of living that is reasonable (given the standard enjoyed when the parents, or in this case, mother and stepfather, were cohabiting), such that the costs of providing that standard should be “apportioned” in some manner between the three parents; or should the Guidelines be interpreted so as to impose full “table” amount liability on all the parents so that support is maximized without regard to the living standard or other circumstances of the children? If the support obligations of a stepparent are to be treated as indistinguishable from those of a parent, is it “appropriate” (the term 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? Last, what significance, if any, is to be attached in this case to the fact that when he and the mother were cohabiting, the stepfather insisted on being primarily responsible for the support of the children and the father relied on that “undertaking” to organize his affairs and assume new family obligations?

Factual Background

[2] I will refer throughout these reasons to the respondent/plaintiff as the “mother”, to the appellant/defendant as the “stepfather”, and to the respondent/defendant as the “father”.

[3] The mother and father were married in 1983 and separated in 1992, by which time they had two children, a daughter and a son. The parents divorced in 1994 but got along amicably and shared custody successfully. As noted by Madam Justice Boyd in earlier proceedings (see 2002 BCSC 926), the children “circulated freely between the two homes” according to a schedule agreed upon by the parents, and it was not necessary for either of them to seek a support order against the other. Both devoted time and money to the children and both were fully employed.

[4] In mid-1994, the mother began living in a common-law relationship with the stepfather. He was, Boyd J. observed, “anxious to assume full responsibility as the children’s step-parent” and insisted that the father pay no child support. He purchased the father’s share in the family home from him; the father eventually remarried; and the “two household incomes became roughly equivalent to each other.”

[5] In September 1999, however, these civilized arrangements came to a sudden halt when it was discovered that the stepfather had sexually assaulted the daughter and had surreptitiously made videotapes of her when bathing and sleeping. The stepfather pleaded guilty to one count of sexual assault and one of “making child pornography, videotapes” and was sentenced to a term of imprisonment. (That sentence was later set aside by the Court of Appeal and a conditional sentence substituted therefor.)

[6] Needless to say, the mother separated permanently from the stepfather. She immediately sought interim child support for the children from him. In November 1999, the court below made an interim order that he pay her $750 per month, based on his then Guideline income of $92,600 per year and the mother’s Guideline income of $65,100 per year. He was also required to pay half the mortgage costs, property taxes and maintenance costs for the family home. The father, against whom a support order was never sought, began of his own accord to contribute $100 per month to the mother for the children.

[7] In June 2002, the mother applied for a permanent order of child support against the stepfather pursuant to the Child Support Guidelines Regulation (British Columbia) (B.C. Reg. 61/1998). The Regulation essentially incorporates the terms of the Federal Child Support Guidelines (S.O.R./1997-175 as amended), but does so in a rather “awkward” way. As Esson J.A. noted in Dutrisac v. Ulm, 2000 BCCA 334, 187 D.L.R. (4th) 461 (B.C.C.A.):

That [provincial] Regulation effectively incorporated the Federal Child Support Guidelines, SOR/97-175, into the Family Relations Act, although with a number of changes in wording to conform with certain terminology and provisions of the Family Relations Act which differ from those in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The method of incorporating those differences is an awkward one which requires the reader to go through the federal guidelines substituting the requisite provincial language for that in the guidelines. As one example, the word "spouse" must be deleted and replaced with the word "parent". [At para. 7.]

Thus, s. 5 of the federal Guidelines, “translated” in accordance with the Regulation, was what the mother invoked in this case. It reads:

Person in the Place of a Parent

5. Where the person against whom a maintenance order is sought stands in the place of a parent for a child, the amount of a maintenance order is, in respect of that person, such amount as the court considers appropriate, having regard to these Guidelines and any other parent's legal duty to support the child. [Emphasis added.]

(In these reasons, I will refer to s. 5 and other sections as sections of the Regulation for the sake of convenience, but in fact they are sections of the federal Guidelines amended in accordance with the Regulation and applicable to cases in which the Family Relations Act, R.S.B.C. 1996, c. 128, rather than the Divorce Act, applies.)

[8] The parties (including the father) came before Boyd J. She rejected the “formulaic” approaches advocated by the parties with respect to how much each should pay for the children’s support and found that it would be “fundamentally unfair” to expect the father to pay his full Guideline amount, given that he shared custody equally with the mother. Presumably proceeding under s. 9 of the Regulation, Boyd J. ordered that he pay the sum of $376 per month, being the “differential between his own notional Guideline amount and that of the mother”. (Para. 60.) As for the stepfather, Boyd J. calculated his income for Guideline purposes at $20,000 for the year 2002, since he was then unemployed. This resulted in Guideline liability of $297 per month, which she declined to reduce in recognition of the fact that the children were with the mother only half of the time. She reasoned:

Considering all of the factors, including the fact that the defendant/stepfather took on the brunt of the children’s support during the duration of the relationship of 5-6 years; the length of the relationship; the fact that he has continued to support the children since the separation under an interim child support order; the fact that the children have no continuing relationship with him (and that he is indeed prohibited from doing so); the fact that the children’s natural father has an obligation to support them; and the fact that the children have no special or extraordinary needs at present – I order that the step-father pay child support to the mother in the sum of $297 per month, based on a current Guideline income of $20,000 per annum.

The natural father is ordered to pay child support of $297 [sic; $376] per month, based on the difference between his Guideline liability of $1222, and the mother’s Guideline liability of $846 per month.

Although I anticipate that the step-father will obtain employment and that there will be a consequential material change of circumstances, it is my hope that future applications can be avoided. [At paras. 64-6.]

Boyd J. also ordered the stepfather to provide the mother with “immediate notice of any employment he has succeeded in obtaining and thereafter at the end of each month … [to] provide the [mother] with advice of his total earnings for the month”.

[9] Meanwhile, the mother and the daughter had both brought civil actions for damages against the stepfather. The daughter’s action was finally settled in April 2005 when the stepfather paid the sum of $42,000 in damages plus $12,000 in legal costs to her; and in June, the mother agreed to accept his half-interest in the family home in return for the dismissal of her tort claims. The stepfather had been unable to find work during the time he was serving his conditional sentence, and did not begin to earn again until April 2003.

[10] In late 2005, the mother again applied to the Supreme Court of British Columbia to have the stepfather’s support increased. He in turn applied to have the obligation decreased or discontinued altogether, and to have the daughter declared no longer a “child” within the meaning of the Family Relations Act. The applications came before Mr. Justice Warren in Chambers. By this time, the stepfather had succeeded in obtaining work as an independent contractor, but he had not so advised the mother or the Court of the change in his earnings. Instead he had used the $80,012 and $88,245 he earned, in 2003 and 2004 respectively, to pay his living expenses and legal fees and to put money towards the settlement of the daughter’s action. He had also failed to pay his income taxes during this period and was assessed penalties which he had to pay, together with his tax arrears, in substantial monthly instalments in 2005–06. He deposed that he was left with no savings and indeed that he had incurred various other debts in order to pay the settlement amount and his own legal fees.

[11] Not surprisingly, the stepfather’s failure to disclose his new income levels led the mother to ask that his support be increased retroactively to April 2003. She had lost her employment in mid-2003 and was in receipt of 20 months’ severance pay due to end in December 2005. At the time of the hearing, she had started “new temporary full-time” employment as an accountant but was not optimistic that it would last beyond November 2005. She had also received some funds from the estate of her mother.

[12] The circumstances of the children, who were by this time ages 20 and 17, had also changed. For various reasons, the shared custody arrangement had been discontinued. The daughter was attending college and living in a basement suite in her mother’s home. (The Court found that she continues to be dependant on the parents for support, and that finding is not challenged on appeal.) The son was also spending less time at his father’s home – perhaps partly in response to the fact that the father now had young children by his second wife.

[13] Each of the three “parents” cited existing case law in support of the positions taken by them. The mother, seeking a straightforward application of the Guidelines to the stepfather, relied in particular on Chartier v. Chartier [1999] 1 S.C.R. 242, 168 D.L.R. (4th) 540, for the principle that the stepfather’s support obligation was on-going and “not qualified as to duration”. Based on his revived income, she sought support of $1,007 (the applicable table amount) per month, retroactive to the date he had started work again. The chambers judge did not refer to the mother’s position vis-à-vis the natural father, but she was not seeking any order of support against him and it would appear she was content with the existing arrangements.

[14] The father’s argument is summarized at paras. 47-60 of the chambers judge’s reasons. Perhaps not surprisingly, the father emphasized the stepfather’s previous “insistence that he assume the financial responsibility of providing for the children” and the fact that in part relying on this “position”, the father had, shortly before the stepfather was arrested, moved into a new house and assumed fresh financial obligations with a new family. Since Boyd J. had made her order, the father had voluntarily increased the amount he was obliged to pay under the order ($376 per month) to the mother and had agreed to share certain expenses with her relating to the children, including post-secondary education fees. He calculated that these “extra” expenses amounted to $516 per month, but the chambers judge did not make a finding on that point.

[15] Like the mother, the father relied on Chartier, supra, for the proposition that the obligation of a person who has stood in loco parentis to a child is not altered by his or her separation from the rest of the family and that the correct approach to the stepfather’s support obligations, at least in this case, should be a flexible one that recognizes the “actual conditions, means, needs and other circumstances of each spouse” and the children: Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, at para. 33. Since the father took the position that his son spent 40% of his time with him, he urged the Court to apply s. 9 of the Guidelines and to use a “simple set-off” approach, similar to that mandated by s. 8, which applies where custody is split. In the words of the chambers judge:

The father says that a good starting point in determining the amount of child support he should pay would be to use a simple set-off approach as suggested in s. 8, subject to such further adjustments as may be necessary to balance out the fairness and flexibility as envisioned under s. 9. He argues that the court should consider the fact that he assumed the responsibility of a new marriage and additional children and acquired another house with a mortgage of approximately $380,000 because he was relying on the status quo as it was in 1999. He has assumed a monthly mortgage payment of $3,300 and he has a $460 per month automobile loan, as well as a line of credit with an outstanding balance of $15,300 and personal credit card debts of some $12,000.

In these circumstances, the father submits that because the focus [of] s. 9 is on fitness and not formula, the approach should be to make a fair award after taking into consideration the s. 9 factors and particularly his condition, means, needs, and circumstances. [At paras. 58-9.]

[16] The stepfather’s primary argument was that, to quote from para. 18 of Dutrisac, supra, “the time [had] come to relieve him in whole or part of the obligation to pay child support”. In his submission, the “primary” obligation of a natural or adoptive parent was different from that of a stepparent, whose support obligations could, as had been stated in Dutrisac, be varied or cancelled depending on the circumstances of the case. The stepfather advocated a “three-step process” under which his “prima facie” support obligation would be determined on the basis of his taxable income of $88,000; the father’s support obligation under the Guidelines would be determined on the basis of his income of $110,000; and the stepfather would be required only to ‘top up’ the support if the father’s “contribution” was “insufficient”. (As will be seen below, the ‘top up’ approach has been adopted in at least a few cases, including Adler v. Jonas (1999) 48 R.F.L. (4th) 228 (B.C.S.C.) and Squire v. Severs, 2000 BCSC 853.) Under this analysis, the combined child support obligations of the natural parents in this case amounted to $2,379 per month, which was sufficient to give the children a “fair standard of support”, so that no ‘topping up’ was necessary. The stepfather also cited various other factors militating against a continuing obligation on his part, including the facts that he still had a large income tax debt and was effectively insolvent; he had not had any relationship with the children for more than six years; and he was living in a basement suite in his mother’s home and had uncertain employment prospects.

The Chambers Judge’s Reasons

[17] Warren J.’s reasons are indexed as 2006 BCSC 1160. He found that the parties’ circumstances had changed since Boyd J. had made her order, but he saw no reason to depart from the “basic arrangement” she had adopted. Like Boyd J., he believed it would be unfair to “burden the father with the full brunt of his Guideline amount”, not because the natural parents were still sharing custody, but because the father was “entitled to organize his affairs and assume fresh marital and paternal obligations based on the stepfather’s earlier undertaking”, and was already contributing “voluntarily” to the children’s expenses and had agreed with the mother to share the costs of post-secondary tuition. (Para. 70.)

[18] Addressing s. 5 of the Regulation specifically, the chambers judge held that the Court must consider all the circumstances of an individual case when making an order under s. 5. He found the following factors to be particularly relevant here:

● The stepfather vigorously assumed the sole support responsibility of the children when he entered into the relationship with the plaintiff.

● The stepfather’s relationship with the children ended as a result of his criminal conduct and he cannot rely on this misconduct to argue he should be relieved of child support obligations because the relationship ended.

● The stepfather was obliged by court order to report changes in his circumstances and he was either wilfully blind in assuming he could rely upon the plaintiff’s lack of enquiry or he wilfully failed to report his change in fortune.

● The father, who was entitled to rely upon the stepfather’s undertaking, assumed fresh obligations.

● The father’s financial situation has not improved materially since the order of Boyd J. whereas the stepfather’s financial circumstances have improved significantly.

● The older child is now residing solely with the plaintiff and the younger child is residing primarily with the plaintiff. In short, the shared custody regime has ended and neither child is capable of living independently of the plaintiff.

● The older child is in full time attendance at university, has worked part-time in the past, and will work part-time in the future to contribute to educational expenses. Although she lives in a basement suite in her mother’s home and has an “adult relationship” with her boyfriend, there is no evidence that she is independent of her mother within the meaning of the Act.

● The plaintiff and the father share university tuition expenses in alternating years and the stepfather makes no direct contribution to those expenses.

● The amount of damages settled upon the older child was compensation for the tortious act of the stepfather and should not be considered as in some way ameliorating the father’s or stepfather’s support obligations. In the absence of evidence that some portion of the settlement was to be used for university expenses I infer it was in settlement of the claim for general damages.

● The plaintiff, the father, and the stepfather had actively encouraged the children to continue with post-secondary education and accordingly that expense is no surprise to the stepfather. [At para. 69.]

[19] Again taking his lead from the earlier reasons of Boyd J., i.e., “from the perspective of the differential between the father’s notional Guideline amount of $1,320 … and the [mother’s] Guideline amount of $890”, the chambers judge ordered the father to pay the difference, $430 per month, for the children’s support. As for the stepfather, based on his income of $88,245 in 2004 and $85,000 in 2005, his Guideline obligation would have been $1,075 per month until May 2006, and $1,251 thereafter. If one added the latter amount to the $430 to be paid by the father and the $890 being provided (notionally) by the mother, the total would come to $2,571 after May 2006. The mother’s Form 89 expense list attributed half of her monthly housing expenses of $2,400 to the children. Adding other specifically child-related expenses of “at least $1,000”, the chambers judge estimated that the “bare monthly cost” attributable to the children was approximately $2,200. However, since this did not allow for any holiday expenses for the younger child or anything for unexpected expenses, the chambers judge was not disposed to reduce the amount of support payable by either the father or stepfather. Thus he concluded:

In summary, I order the father to pay the plaintiff $430 a month commencing on December 1, 2005 and continuing on the first of each month until further order of the Court. The stepfather’s child support order should be retroactive to January 1, 2004, because by then he had one year of income well over the amount imputed to him in June 2002 and had failed to report as ordered. I order the stepfather to pay the sum of $1,100 a month retroactive to January 1, 2004 and continuing on the first of each month until and including December 1, 2004. Thereafter, he shall pay [the] sum of $1,075 a month commencing January 1, 2005 and continuing on the first of each month until May 1, 2006 and thereafter the sum of $1,251 until further order of the Court. [At para. 73.]

(During the course of the hearing in this court, counsel advised that if the new table amounts which came into effect on May 1, 2006 had been applied, the amount of support imputed to the mother would have been $1,019 per month rather than $890 and the father’s “notional” Guideline amount would have been $1,581 rather than $1,320.)

ON APPEAL

[20] The stepfather appeals the order of the chambers judge below on the following grounds as stated in his factum:

A. The learned chambers judge erred when he failed to correctly assess the Father’s obligation to pay child support and take the same into account when determining the amount of child support payable by the Stepfather pursuant to s. 5 of the Guidelines.

B. The learned chambers judge erred when he failed to assess the Father’s obligation to pay child support at the dates that the shared custody regime ended and take the same into account when calculating the Stepfather’s arrears of child support.

C. The learned chambers judge erred in holding that the court did not have jurisdiction to relieve a step parent from his child support obligation or, alternatively, in failing to reduce the Stepfather’s obligation to zero in the circumstances of this case.

The first branch of the third ground was not pursued at the time of hearing, and rightly so, since the chambers judge did not suggest anywhere in his reasons that he was “without jurisdiction” to relieve a stepparent from his obligation of child support. The second branch may be equated with the first ground of appeal.

The Statutory Framework

[21] It may be useful to begin by setting out the larger statutory framework in which the mother’s and stepfather’s applications were brought. Obviously, insofar as these applicants are concerned, it is the Family Relations Act, rather than the Divorce Act, which applies, since they were never married and divorced. The father’s child support obligations, on the other hand, are presumably governed by the Divorce Act and the federal Guidelines, but fortunately, there are no material differences between the two for purposes of this case.

[22] Section 1 of the Family Relations Act contains the following definitions that are relevant here:

"parent" includes …

(b) a stepparent of a child if

(i) the stepparent contributed to the support and maintenance of the child for at least one year, and

(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child;

"spouse" means a person who

…

(b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years …

By s. 1(2), a person is a stepparent of a child for purposes of para. (b) of the definition of “parent” if the person and a parent of the child lived together in a marriage-like relationship for a period of at least two years. (There is no question in this case that the stepfather was a “parent” for these purposes.)

[23] Part 7 of the Act deals with maintenance and support obligations. It defines “child” to include a person who is 19 years of age or older “and, in relation to the parents of the person, is unable, because of illness, disability, or other cause, to withdraw from their charge or to obtain the necessaries of life”. (Section 87.) (Again, there is no question on this appeal that the daughter in this case still fell within this definition at the material time.) Section 88(1) states that every parent of a child is “responsible and liable for the reasonable and necessary support and maintenance of the child”. Section 93 deals with how that obligation is to be met. It provides in part:

93 (1) Subject to the Divorce Act (Canada), a court may make an order on application, or if the court makes or refuses an order for judicial separation or dissolution of marriage or a declaration that a marriage is null and void, requiring a party to the proceeding to discharge his or her liability

(a) under section 88 by paying to the person designated in the order the amount the court ascertains, using the child support guidelines, [emphasis added] …

(2) Despite subsection (1)(a), a court may make an order to discharge a liability under section 88 by paying to the person designated in the order an amount that differs from the amount the court ascertains, using the child support guidelines, if the court is satisfied that

(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and

(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.

(3) If the court makes an order under subsection (2), it must record its reasons for having done so.

…

96 (1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.

(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must

(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and

(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.

(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that

(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.

(1.3) If the court makes an order under subsection (1.2), it must record its reasons for doing so.

…

129 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations establishing child support guidelines for the making or variation of maintenance orders as defined in section 87 respecting the obligation under section 88 to support and maintain children, including interim orders to support and maintain children, and these may include regulations as follows:

(a) respecting the way in which an award for maintenance for children is to be calculated;

(b) respecting the particulars that must be included in a maintenance order;

(d) respecting the circumstances that may justify the variation or rescission of a maintenance order;

(e) respecting the determination of income for the purposes of the application of the child support guidelines;

(f) authorizing a court to impute income for the purposes of the application of the child support guidelines;

(g) respecting the production of income information and providing for sanctions if that information is not provided.

(3) A regulation under this section may incorporate by reference, with any changes the Lieutenant Governor in Council considers appropriate, all or any part of a code, rule or standard as published by a provincial, national or international body as amended from time to time before or after the making of the regulation and relating to the subject matter of this Act.

(No argument was advanced in this case based on s. 93(2) or s. 96(1.2).)

[24] The Child Support Guidelines Regulation was enacted under the Family Relations Act. The Regulation came into force on April 14, 1998, and has since been amended slightly by B.C. Regs. 120/1998, 129/2006 and 94/2007. I will proceed on the basis of the current wording.

[25] The objectives of the Guidelines are set out at s. 1 of the Regulation as follows:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation;

(b) to reduce conflict and tension between parents by making the calculation of maintenance orders more objective;

(c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of maintenance orders and encouraging settlement; and

(d) to ensure consistent treatment of parents and children who are in similar circumstances.

[26] Sections 3, 5, and 9 of the Regulation, which I set out below, are the same in all material respects as the corresponding sections of the federal Guidelines, with appropriate changes in nomenclature:

3(1) Presumptive Rule

Unless otherwise provided under these Guidelines, the amount of a maintenance order for children under age 19 is

(a) the amount set out in the applicable federal child support table set out in Schedule 1 to the Federal guidelines, according to the number of children under age 19 to whom the order relates and the annual income determined under sections 15 to 20 of the Federal Guidelines of the parent against whom the order is sought; and

(b) the amount, if any, determined under section 7.

3(2) Child age 19 or over

Unless otherwise provided under these Guidelines, where a child to whom a maintenance order relates is age 19 or over, the amount of the maintenance order is

(a) the amount determined by applying these Guidelines as if the child were under age 19; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child.

3(3) Applicable table

The applicable federal child support table set out in Schedule 1 to the Federal guidelines is

(a) if the parent against whom an order is sought resides in Canada

(i) the federal child support table set out in Schedule 1 to the Federal guidelines for the province in which that parent ordinarily resides at the time the application for the maintenance order, or for a variation order in respect of a maintenance order, is made or the amount is to be recalculated under section 93.3 of the Family Relations Act …

5. Person in place of a parent

Where the person against whom a maintenance order is sought stands in the place of a parent for a child, the amount of a maintenance order is, in respect of that person, such amount as the court considers appropriate, having regard to these Guidelines and any other parent's legal duty to support the child.

9. Shared custody

Where a parent exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the maintenance order must be determined by taking into account

(a) the amounts set out in the applicable federal child support table set out in Schedule 1 to the Federal guidelines for each of the parents;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each parent and of any child for whom support is sought. [Emphasis added.]

I have not reproduced s.10, the “undue hardship” provision, since it was not invoked in this case.

The Case-law

[27] Consistent with the Guidelines’ objectives of fairness and certainty, courts have been assiduous in applying the “presumptive rule” of s. 3 strictly: see, e.g., Montalbetti v. Montalbetti, 2000 BCCA 504, 10 R.F.L. (5th) 377, and Patterson v. Patterson, 2001 SKQB 10. In most cases, the number of children and the income of the “payor” (determined with reference to a complicated definition usually worked out by computer) are simply “plugged in” to the table at the back of the Guidelines to produce the applicable Guideline, or “table” amount. Other factors, such as the child’s particular needs or the recipient parent’s circumstances, may not be considered unless the Guidelines expressly provide — as do ss. 3(2)(b), 4(b)(ii), and 9(c). (See D.B.S. v .S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at paras. 44 and 112.)

[28] Counsel for the stepfather referred us to Stoddard v. Atwood, 2001 NSCA 69, 193 N.S.R. (2d) 320, which illustrates the inflexibility of s.3 in the context of the “multi-parent dilemma”: see Professor J.G. McLeod, Annotation to Primeau v. Primeau (1986) 2 R.F.L. (3d) 113 (Ont. H.C.J.). In Stoddard, a mother sought a support order against her child’s natural father. He resisted on the ground that because the mother had had two other common law relationships of some duration since the birth of the child, and had subsequently married and divorced a third partner, she should be obliged to seek support from them in addition to the natural father. The Nova Scotia Court of Appeal held, however, that since the natural father was unable to show undue hardship, there was no discretion to fix support at an amount less than his table amount under the Guidelines. In the words of Bateman J.A.:

There is no discretion to depart from the Guidelines amount, where the payor is a parent, save in the case of undue hardship. On the other hand, where the payor is not a parent, pursuant to s. 5, the court does have discretion to order an amount less than that provided in the Guidelines …

Accordingly, being unable to establish undue hardship, even had Mr. Stoddard demonstrated that there were others who stood in loco parentis to the child and could respond to a support order, it would not have reduced the table amount that he is required to pay. [At paras. 11 and 13; emphasis added.]

[29] Section 5 is clearly one of the exceptions to the presumptive rule, importing a discretion to determine what is “appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.” (As to the meaning of the word “appropriate”, see the discussion of “inappropriate” in Francis v. Baker [1999] 3 S.C.R. 250, 50 R.F.L. (4th) 228, at paras. 32-41.) On this point, Mr. Manson on behalf of the stepfather referred us to Russenberger v. Rebagliati, 2000 BCSC 82, 5 R.F.L. (5th) 130. There, a mother who had lived in a series of marriage-like relationships that had produced four children, sought child support from a previous common-law partner who had stood in the place of a parent to her children during their co-habitation. The Court, per Preston J., reviewed the terms of the Family Relations Act and B.C. Reg. 61/98, noting that “Recognition of the primary obligation of biological parents for the support of children is inherent in the structure of the Guidelines and the Family Relations Act.” (Para. 32.) This, he said, weighed heavily against a long-term award against the stepfather. Preston J. did not regard the considerations mentioned in s. 5 as exhaustive of the factors that should guide a court under that section, and took the view that all the circumstances of the case were relevant to determining the appropriate child support order. (Para. 31.) Considering in particular that both parties had formed other relationships, and that the stepfather had an obligation to support two other children and had no further relationship with the children’s mother, Preston J. concluded it would not be “appropriate” to grant her application.

[30] At first blush, it might seem difficult to square this reasoning with that of the Supreme Court of Canada in Chartier, supra. Chartier, however, was not a contest between a natural parent and a stepparent. In fact, no mention was made of the natural father and he was evidently not before the Court. The judgment dealt only with whether a stepparent’s obligations to a stepchild could be “unilaterally” terminated by the stepparent after the breakdown of the marriage. The Court, per Bastarache J., answered that question clearly in the negative. As well, he rejected the “concern” that a “child might collect support from both the biological parent and the stepparent.” In his words:

I do not accept that this is a valid concern. The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. The obligation to support a child arises as soon as that child is determined to be a “child of the marriage”. The obligations of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations towards the child, whether they are biological parents or step-parents; it should not affect the child. If a parent seeks contribution from another parent, he or she must, in the meantime, pay support for the child regardless of the obligations of the other parent. [At para. 42; emphasis added.]

In the result, the case was remanded to the Manitoba Court of Queen’s Bench to determine the quantum of support to be paid by the stepfather.

[31] Chartier was not cited in Russenberger, but was dealt with directly by this court in Dutrisac, supra, a similar case. At para. 22, the Court found that Chartier did not imply that the obligation of a stepparent is inflexible like that of a natural parent under s. 3. In Esson J.A.’s words:

The appeal court judge appeared to read Chartier as precluding the court from reducing the level of child support being paid by a stepparent. He referred to Chartier in para. 42 of his reasons as seeming to "overrule" the result in Sharratt v. Green (1995), 11 R.F.L. (4th) 386 (B.C.S.C.), aff'd (1997), 27 R.F.L. (4th) 38 (B.C.C.A.), a case in which this court upheld the decision of Mr. Justice Thackray holding that a stepfather who had paid substantial maintenance to a child for a number of years should no longer be required to contribute to her maintenance.

The appeal court judge also referred to the decision of this court in Beatty v. Beatty (1997), 33 B.C.L.R. (3d) 247 (B.C.C.A.). In that case, in ordering a reduction of child support to be paid by a stepfather, Southin J.A. for the court said:

The question of the extent to which someone who is not a parent either by blood or adoption should continue to be held responsible, perhaps for years, for children who may have no interest in him or her at all and whose natural parent may have acquired a new spouse, is a troubling one which appears to be arising more frequently and is deserving of more than cursory attention. It is not a question to be answered by the "blunt instrument" approach.

After quoting that passage, the appeal court judge said in para. 41 of his reasons that the Supreme Court of Canada had "... answered that the parent should continue to be held responsible".

In my view, Chartier has no effect on the issue dealt with in cases such as Sharratt and Beatty. In holding that a person who stands in the place of a parent cannot unilaterally terminate that status, the Supreme Court said nothing about the power of a court, under either the Divorce Act or provincial legislation, to grant a reduction of the amount of child support required to be paid by a stepparent. In my view, nothing in Chartier would preclude an order reducing the quantum of the obligation to zero if, in all the circumstances, that was found to be appropriate. [At paras. 20-2; underlined emphasis added.]

As in Chartier, the matter was remitted back to the trial court for determination, the Court of Appeal again emphasizing that Mr. Dutrisac might succeed in having his support amount reduced to zero by reason of “undue hardship” under s. 10.

[32] Relying strongly on Dutrisac, the stepfather contends that the chambers judge in the instant case erred in failing to assess the natural father’s obligation to pay child support and to take that obligation into account in determining the support or “contribution” payable by the stepfather as required by s. 5. As in the court below, he submits that his support obligation should be reduced to zero given that there is no basis on which to reduce the father’s obligation under s. 3, least of all by reason of the father’s assumption of fresh family obligations in reliance on an “undertaking” of the stepfather that has long since ceased to have effect (and, one might add, that was irrelevant to the stepfather’s duty in any event). In his submission, the reference in s. 5 to “any other parent’s legal duty to support the child” requires that the father’s obligation under s. 3 be quantified before the amount of any child support obligation of the stepfather could be determined under s. 5. The father in this instance was before the court and is clearly able to provide a “fair standard of support” for the children.

[33] The stepfather also cites various factors which he says militate against a continuing obligation on his part to contribute — his vastly reduced financial wherewithal, the fact that he and the mother resided together for only five years, and the fact that he has, for obvious reasons, no continuing relationship with either child. Finally, citing Sharratt v. Green (1995) 11 R.F.L. (4th) 386 (B.C.S.C.), a pre-Guidelines case affirmed on appeal at (1997) 27 R.F.L. (4th) 38 (B.C.C.A.), he says it should not be open to the mother, by choosing not to seek support from the father, to shift the burden of support, or most of it, to the stepfather. In Sharratt, Thackray J. (as he then was) reviewed some older decisions of this court, including Turecki v. Turecki (1989) 35 B.C.L.R. (2d) 51, 19 R.F.L. (3d) 127 (C.A.) and Leveque v. Leveque (1990) 25 R.F.L. (3d) 1 (C.A.), and stated:

While Leveque said that there is no distinction between the obligation of the natural parent and the step-parent, the court was not considering a case wherein the custodial parent had obligated a number of people to contribute. In that case it was the "conventional" situation of a wife's son from a previous relationship living with the parties throughout the marriage.

The case at bar illustrates the potential for a large number of people to attain the role of "parent". At some point in this progression the obligation of one or other of the "parents" must surely be subject to variation or even cancellation, depending on the circumstances in the case. …

Turecki said that "a child is entitled to adequate maintenance from his parents, regardless of problems associated with access." It went on to refer to the obligation of parents as "mutual".

The plaintiff has done nothing to investigate the resources of the natural father and to ascertain if greater support could be gained. Rather, she has been content to shift his burden to the defendant and has successfully done so for many years. He was, to use the words from Ozanich, simply the "last in line."

Now there is a new "last in line." Mr. Bachinsky did not last long enough to qualify. However, Mr. Henry has. He has assumed the parenting role and a corresponding financial commitment. He is the beneficiary of all of the benefits, i.e. the love, companionship, etc. of the child. Furthermore, the plaintiff has a financial obligation to Melissa.

In Leveque the following statement by the trial judge was not disagreed with by the Court of Appeal:

“As I read the child support provisions of the Family Relations Act, the dominant objective is to obtain reasonable and necessary support and maintenance for children.”

That objective can be satisfied without any further contribution by Mr. Green [the stepfather] to the maintenance of Melissa. I am of the opinion that the defendant has contributed his share of the maintenance of Melissa to fulfill all legal obligations towards her. Mr. Green has paid some $19,000 towards the upkeep of Melissa pursuant to the order of Mr. Justice Gow. He submitted that his, that is Mr. Green's, time has now passed. I agree. [At paras. 27-33; emphasis added.]

In the result, Thackray J. declined to vary an earlier order that required the stepfather to pay $500 per month for the support of the child, even though he could “undoubtedly afford to pay more”.

[34] Sharratt was decided before the Guidelines came into effect, but as has been seen, s. 3 would appear to impose an obligation on the natural father that is an inflexible and perhaps even a “primary” one. I did not understand either counsel for the mother, or the father (who appeared in person on the appeal) to disagree with the principle that the father does have a continuing obligation to support the children notwithstanding the availability of support from the stepfather. The sticking-point is how each parent’s obligation is to be approached and quantified in the particular circumstances of this case. The father regards Warren J.’s order as an appropriate balancing of the three parents’ obligations that properly takes into account the stepfather’s now-abandoned “undertaking”. As I understand it, the father wishes to retain a discretion to continue to pay major expenses of his choosing, such as the children’s college or university fees from time to time (and of course to support his new family). But while his conduct vis-à-vis the children has been admirable, there is authority to the effect that a parent who has a support obligation may not insist on meeting it by handing out benefits directly to the children as he or she chooses. The Guidelines require that in the absence of an agreement otherwise, a “payor” parent pay regular financial assistance in the applicable table amount to the custodial parent: see D.B.S., supra, at para. 109, citing Haisman v. Haisman (1994) 157 A.R. 47, 116 D.L.R. (4th) 671 (Alta. C.A.) at 691, lve. to app. refused [1995] 3 S.C.R. vi. As s. 3 states, the amount of a maintenance order “is” the applicable amount set out in the table to the Guidelines unless one of the ‘discretionary’ sections applies.

[35] Mr. Sherman on behalf of the mother told us he did not “necessarily” disagree with the stepfather’s submission that Warren J. should have made a finding as to what amount the father is now contributing to the children’s support (including education), but he submitted that the stepfather’s obligation should not be simply reduced dollar-for-dollar from that of the father, resulting in this case in an obligation of zero. (This approach was taken by a Master in Ruth v. Young [1997] B.C.J. No. 1848 (S.C) (Q.L.).) Neither natural parent took the position that the children should receive support in the full table amount applicable to each of the three parents, from each of them, perhaps because in this case, such an order would provide a higher standard than that enjoyed by the children when the stepfather was living with them, since the father was not paying support to the mother at that time. Instead, Mr. Sherman on behalf of the mother argued that s. 5 confers a broad discretion on the court, under which any one of a number of approaches might be found “appropriate”. Some of these approaches were described by Hardinge J. in Adler v. Jonas (1999) 48 R.F.L. (4th) 218 (B.C.S.C.) at para. 32, as follows:

(a) Apportion mathematically, taking as the amount due the total expenses of the child and distributing this among payors according to the ability of each to pay (Garard v. Garard, [[1996] B.C.J. No. 1165], (May 21, 1996), Doc. New Westminster D037200 (B.C. Master) - a pre-Guidelines case under the Divorce Act);

(b) Add the incomes to get the total incomes of all the parents, find the Guideline amount for that figure and then divide that amount pro rata among the payors based on the percentage of the total income earned by each. (This approach was rejected in B. (W.J.) v. B. (C.L.), (April 24, 1997), Doc. Victoria CA V02831 (B.C.C.A.) [reported at 89 B.C.A.C. 283] and Gordon v. Paquette, (January 9, 1998), Doc. Chilliwack E0398 (B.C. Master) [reported at 36 R.F.L. (4th) 382];

(c) Apportion the amount of support due according to the role each contributor plays in the life of the child (Dusseault v. Dolfo, (March 28, 1998), Doc. Kamloops 6157, 6158, 6159 (B.C. Prov. Ct.));

(d) Treat each payor individually and apply the Guidelines, with the possibility of an excess of support (Gordon v. Paquette, supra);

(e) Determine the amount due from the last payor under the Guidelines, then subtract from it any being paid by a previous payor (Ruth v. Young (August 1, 1997), Doc. New Westminster E3910 (B.C. Master) and Nay v. Nay, (July 24, 1998), Doc. New Westminster D037649 (B.C.S.C.), Per Bennett J.); and

(f) Consider Guidelines amount for each payor, but also consider the means, needs and circumstances of the parties, the relationship between each potential payor and the child, its length, whether it continues and the extent to which the child relies on the support of the payor (Singh v. Singh (September 25, 1997), Doc. Kamloops 011364 (B.C. Master) and White v. Rushton (February 19, 1998), Doc. Campbell River D3640 (B.C. Master) [reported at 37 R.F.L. (4th) 373]).

In Mr. Sherman’s submission, Warren J. took the fourth approach mentioned by Hardinge J. and it cannot be said he committed reversible error in exercising the discretion he had under s. 5 in this manner.

[36] Not all courts have agreed with the position taken in Russenberger, supra, that s. 5 grants the court a wide discretion in terms of what factors are relevant to determining an “appropriate” amount under s. 5. We were referred to Kobe v. Kobe (2002) 30 R.F.L. (5th) 135 (Ont. S.C.J.), in which a mother, the custodial parent, was seeking support from a stepfather, who took the position that he was under no obligation to pay for the support of her children. Their natural father, a Mr. Dirks, had been added as a party to the proceeding and had already been ordered to pay support of $654 per month plus arrears of support, based on his estimated income of $46,527. At para. 23 of his reasons, Mendes da Costa J. referred to s. 5 of the Federal Child Support Guidelines as “narrow in its scope.” After reviewing the financial circumstances of the mother and biological father (who deposed that he had been unemployed for some months), the Court ruled that the means of the mother could not be taken into account in determining the quantum of the stepfather’s obligations under s. 5. Similarly, the nature of the relationship between the child and the stepparent in question was said not to be relevant to the task at hand, since Parliament had “expressly listed” in s. 5 the factors to be considered. (Para. 45.) After noting the comments of Bastarache J. in Francis v. Baker, supra, regarding the meaning of “inappropriate”, and after considering the order that had been made against Mr. Dirks and his record of payment, the Court ordered the stepfather, whose table amount was $1,410 per month, to pay $950 per month. Although the result was that the support payable by the father and stepfather together exceeded the table amount of the stepfather, the Court did not regard the children as receiving a “windfall” – it was, Mendes da Costa J. stated, “the amount that the Guidelines require, given that there are two support payers.” (Para. 52.)

[37] Returning to the case at bar, Mr. Sherman argued that the order of Warren J. had not resulted in a “windfall” to the children even though the total amount being contributed by the three parents exceeded somewhat the expenses listed on the mother’s Form 89. Nor did counsel see anything objectionable in taking this argument to its logical extreme – i.e., in the event that the custodial parent had, say, five serial live-in partners each of whom was a “parent” and was required to support the children under s. 5, each parent could, in his analysis, properly be required to pay his or her table amount, regardless of whether the children would receive an amount far exceeding what they had ever enjoyed previously. However, counsel did not cite any case in which such a result had occurred.

Conclusions

[38] As should be clear from the foregoing, although the broad principles of law relating to the existence of child support obligations on the part of stepparents are clear, Canadian courts have differed as to how those obligations, as stated in the Guidelines, are to be determined in practice. I read s. 5 as requiring that the legal duties of support of the “other parent(s)” – in this case, the natural parents – be considered when support is sought from a stepparent. If such duties are to be considered, it seems obvious that they must be quantified if possible. For this purpose, the “other parent(s)” should be before the court, or other evidence satisfactory to the court relating to that parent’s status should be adduced, as occurred in Dutrisac and Kobe (but not in Chartier.) Unless that other parent is a stepparent, s. 3 requires that his or her support be the applicable table amount unless custody is being shared, the child is over age 19, or one of the other ‘discretionary’ provisions applies. (In the case at bar, the daughter had reached 19 by the time of the hearing below, but was still dependant on parental support, and no argument was advanced invoking s. 3(2)(b) of the Regulation. None of the other discretionary provisions applied.) At this stage, the process is not one of “balancing” or even “apportionment”: it appears that the natural parent’s obligation can be determined only in accordance with the non-discretionary “presumptive rule” of s. 3.

[39] Thus the chambers judge below did err, in my respectful view, in failing to determine whether the father was in fact contributing an amount at least equal to what he would have been required to pay under s. 3 had he been making regular monthly payments in accordance with the Guidelines. Whether or not the father was doing so, the chambers judge should then have ordered him to pay his table amount – although if the mother was content to accept support in the form of the payment of tuition fees or other expenses, she could enter an agreement with him to that effect. She could not, however, choose to give the father a “pass” in favour of pursuing the stepfather for all the support the children required.

[40] Once the duty of the “other parent” had been determined, the chambers judge could proceed to determine the stepfather’s obligation, “having regard to” that duty and “these Guidelines”. I agree with the Court in Kobe that the chambers judge’s discretion under s. 5 was not “unfettered”, but certainly the phrase “these Guidelines” would include the objectives stated in s. 1, which I repeat here for convenience:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation;

(b) to reduce conflict and tension between parents by making the calculation of maintenance orders more objective;

(c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of maintenance orders and encouraging settlement; and

(d) to ensure consistent treatment of parents and children who are in similar circumstances.

Thus a “fair standard of support”, objectivity of calculation, and reduction of conflict between parents are relevant to the determination of “appropriate” support by the stepparent. On the other hand, s. 5 does not, in my view, confer a discretion that is so broad as to encompass “all” the circumstances of a case (as was suggested in Russenberger) or “fairness” to the father arising from a kind of promissory estoppel against the stepparent (as was suggested by the chambers judge in this case).

[41] Given the “children-first” perspective of the Guidelines (see D.B.S., supra, at para. 43), primacy should be given to the children’s standard of living. Where for example the stepparent provided a standard to the children during the period of cohabitation that was materially higher than that which the natural parents can provide by means of their Guidelines amounts, a court might find it appropriate to make an order against the stepparent that is designed to provide the higher standard, or something approximating it, “on top of” the other parents’ support. However, where the ‘piling’ of Guidelines amounts would result in a standard beyond one that is reasonable in the context of the standard the children have previously enjoyed, such a ‘windfall’ or “wealth transfer” (see Francis v. Baker, supra, at para. 41) is unlikely to be “appropriate”. At the other end of the spectrum, where the three (or more) parents’ Guidelines “contributions” together are needed to provide the children with a reasonable standard of living, then both the stepparent and the non-custodial parent(s) may well be required to pay full Guidelines amounts. Or, where one of the natural or adoptive parents is not present or is unable to pay any support, the stepparent may well have to pay his or her full table amount. The Legislature has left it to the judgment of trial and chambers judges in the first instance to fashion orders that are “appropriate” under s. 5. At the same time, the Guidelines system is not thereby jettisoned in favour of a ‘wide open’ discretion. The inquiry must, like the Guidelines themselves, focus on the children and their needs.

[42] In this case, the income levels of the father and stepfather were not very different. When the stepfather was supporting the children, the father was sharing custody and was therefore not expected to contribute funds to the mother for the children’s care. Now, the natural parents are able to provide a quite comfortable standard of support – the father by paying his Guidelines amount and the mother by providing her presumed contribution as custodial parent. The chambers judge reasoned that the mother’s expenses were slightly more than her Form 89 had indicated – about $2,570 per month from May 1, 2006. In this, he has not been shown to be wrong. Where he erred was in approaching the natural father’s obligation as a secondary one, losing sight of the non-discretionary obligation created by s. 3. If the chambers judge had factored in the Guidelines obligations of the natural parents, which come to a total of $2,210 per month, he would have been left with a shortfall of $360 per month. If the stepfather had been ordered to “top up” this amount, the children would have a more than a “fair standard of support” and the other requirements and objectives of the Guidelines would have been met.

[43] I would allow the appeal on the basis that the chambers judge erred in his approach to the determination of the stepfather’s obligation under s. 5 of the Regulation and the father’s obligation under s. 3, and in considering factors that do not come within the wording of s. 5.

Retroactivity

[44] I turn next to the question of retroactivity. At least in this court, the stepfather did not contest the fact that he had failed to comply with Boyd J.’s order of June 21, 2002 that he provide the mother with “immediate notice of any employment he has succeeded in obtaining” and thereafter, with “advice of his total earnings” for each month, including paystubs or contracting invoices.

[45] The stepfather contends, however, that the chambers judge erred when he “failed to assess the father’s obligation to pay child support at the dates that the shared custody regime ended and take the same into account when calculating the stepfather’s arrears of child support.” Just as the stepfather was under an obligation (which in this case was stated in a court order) to disclose the change in his income, he says the father should be “called to account” to pay his full Guidelines amount, which would have increased when the shared custody arrangement ended. (The stepfather contends that this took place in March 2004 in respect of the daughter and in April 2005 in respect of the son.) According to the stepfather’s calculation, the father should have paid $31,000 in arrears based on the difference between his table amount and the amount of child support actually paid by him and it would be an “unjustified windfall” for the mother to receive arrears of child support from both the stepfather and the father. (In fact, of course, the stepfather is actually complaining about what he regards as a “windfall” to the children, since it is they, not the mother, who are the beneficiaries of child support.) Considering the mandatory nature of the father’s obligation under s. 3, he contends that since the father’s “arrears” exceed those of the stepfather found by Warren J., the mother’s application for a retroactive order against the stepfather should have been dismissed.

[46] It is tempting to respond to this argument by saying that it ill lies in the stepfather’s mouth to complain about the father’s conduct when he, the stepfather, failed to comply with a court order in favour of the children. However, the cold logic of the law perhaps demands a more objective approach. In D.B.S., the Supreme Court of Canada reviewed the factors that a court should consider in awarding retroactive child support. In so doing, it emphasized that “At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix.” (Para. 99.) The factors cited by Bastarache J. were the reason for the choice of the recipient not to apply for support earlier (this factor was said to be “crucial”); any “blameworthy conduct” on the part of the payor or whether it appears he or she has “contributed to his/her child’s support in a way that satisfied his/her obligation”; the circumstances of the children and in particular their economic needs; and whether hardship would be occasioned by a retroactive award. (Paras. 100-16.)

[47] Applying these factors here, I think it is clear that a retroactive order would not be appropriate as against the father. The mother has never applied for support against him or alleged that the children were not enjoying a reasonable standard of living, although after the sharing of custody ceased, she may have had to pay a greater share of their expenses than should have been necessary. It appears that since the father was contributing to the children’s support by means other than regular monthly payments, she was content. At this point, we do not know whether the father was contributing more or less than what he would have had to pay under s. 3 of the Regulation. The parties had been before the Supreme Court of British Columbia and Boyd J. had made her order, described above. No conduct on the father’s part that could be described as “blameworthy” has been shown. Further, the circumstances of the children are not such that a retroactive order is now required to permit debt to be repaid or other obligations met that were necessitated by the father’s not paying greater support than he did. Finally, the father now has other family obligations that would no doubt be materially affected by an order for the payment of a significant amount. As Bastarache J. stated in D.B.S.:

… it is difficult to justify a retroactive award on the basis of a "children first" policy where it would cause hardship for the payor parent's other children. In short, retroactive awards disrupt payor parents' management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact. [At para. 115; emphasis added.]

[48] In all the circumstances, I conclude that a retroactive award against the father would not have been appropriate in this case and that the chambers judge below did not err in failing to make such an order.

[49] I have also considered whether the stepfather should receive some credit or even ‘refund’ of support in recognition of the fact that (assuming Warren J.’s order has been complied with pending appeal) he has in a sense “overpaid” the mother on behalf of the children. In this regard, what little authority there is suggests that this is a discretionary matter: see the discussion at §17:15.08 of T.W. Hainsworth, Divorce Act Manual (looseleaf); Prewada v. Prewada (1993) 88 Man. R. (2d) 2, 48 R.F.L. (3d) 190 (Man. C.A.). (On the other hand, no discretion was suggested in E.E.C. v. M.A.C., 2003 BCCA 666, 21 B.C.L.R. (4th) 308.) One may assume any such order would affect the children very negatively, and would only mean the mother would be thrown into debt and thus have less with which to discharge her own support obligation. In all the circumstances, I conclude that a retroactive adjustment of this kind would not be in the interests of justice or of the children.

DISPOSITION

[50] I would allow the appeal, set aside paras. 3 and 4 of the chambers judge’s order below, and substitute an order that the father shall pay the sum of $1,581 to the mother from and after May 1, 2008, and continuing on the first day of each month until further court order; and that the stepfather pay $360 per month to the mother from May 1, 2008, and continuing on the first day of each month until further court order. (This order rests on the assumption that both children remain “children” for purposes of the Family Relations Act. If this is no longer the case, a variation order could be sought below or the parties might agree on a different figure.) As well, I would order that both the father and stepfather shall notify the mother in writing of any material change in their respective earnings; and provide copies of paystubs and other supporting documents to her upon request from time to time, and not less than annually, as of May 1.

[51] Given that success in this appeal has been mixed, I would give the parties leave to make written submissions as to costs should they wish to do so. Counsel should agree amongst themselves for filing dates, subject to a June 15, 2008 deadline for the last submission.

[52] As requested by counsel, I would confirm the application of s. 486(3) of the Criminal Code to this judgment, and have therefore used initials in place of the parties’ names throughout.

“The Honourable Madam Justice Newbury”

I Agree:

“The Honourable Madam Justice Saunders”

I Agree:

“The Honourable Mr. Justice Frankel”