The Cleavers Are Moving Out: StatsCan reports on the changing face of the Canadian family

Statistics Canada has published the results of the 2011 Census, and its analysis of the changing makeup of the Canadian family is worthy of note. As CBC's article on the analysis pithily notes, "the nuclear family is no longer the norm in Canada."

The newsbite summary of Statistics Canada's conclusions says this:

• Married-couple families were the predominant family structure in 2011, at 67.0%. For the first time, there were more common-law-couple families in 2011, 16.7%, than lone-parent families, 16.3%.
• The 2011 Census of Population counted 64,575 same-sex couples. In 2011, 32.5% of same-sex couples were married, nearly double the 2006 share. The 2006 to 2011 period marks the first five-year period during which same-sex couples could legally marry, following the legalization of same-sex marriage for all of Canada in July, 2005.
• Stepfamilies were counted for the first time in the 2011 Census of Population, providing a more detailed portrait of Canadian families. There were 464,335 stepfamilies in 2011, or 12.6% of couple families with children aged 24 and under.
• For the first time, there were more one-person households in 2011, 27.6%, than couple households with children aged 24 and under, 26.5%.

Appeal Heard on Unsual Stepparent Child Support Decision

In July 2011 the British Columbia Provincial Court released a very odd judgment on steppparents' liability to pay child support in a case called K.A.L. v. J.P.R. To be clear, it wasn't the court's decision that was odd but the circumstances in which the action was brought.

K.A.L. was followed up a few months later in September with an unreported Provincial Court judgment rendered in an almost identical situation involving parties surnamed Faint, McFayden and Godin. The Supreme Court has just released its decision in the appeal of the unreported case, a decision that might just resolve any appeal brought from K.A.L. as well.

Background

As I pointed out in my post on K.A.L., "Stepparent Caught by Hole in Family Relations Act," the current legislation on family law matters in this province contains one very significant omission:

"The Family Relations Act, British Columbia's primary law on domestic relations, is missing something very important: a triggering event for applications involving custody, guardianship, access, child support and spousal support. Nothing in the law restricts how soon an application on these issues can be made; in particular, nothing says that an application can't be brought while a couple are still together."

The surprising conclusion this led to in both K.A.L. and the unreported case was that a stepparent in an intact relationship with a biological parent was successfully sued for child support by the other biological parent. Both judges found that once the hapless steppparent met the statutory definition of steppparent, he became liable to pay child support to the parent with the primary care of the child, even though still in a relationship with the child's other parent.

K.A.L. came as a bit of a shock to many family law lawyers, yet was well within the plain reading of the Family Relations Act:

1. Each parent of a child is responsible to support a child. (FRA, s. 88(1))
2. The fact that one parent is ordered to pay child support support doesn't stop the other parent from being ordered to pay child support. (FRA, s. 88(2))
3. "Parent" includes biological parents and steppparents, as long as the stepparent has contributed to the support of the child. (FRA, s. 1(1))
4. A "stepparent" is someone who is married to a parent or someone who is in a common-law relationship with a parent (FRA, s. 1(2))

And that's all there is to it. It just took the enterprising parents in K.A.L. and the unreported case to notice it.

The Appeal Decision

In McFayden v. Faint, Ms. McFayden and her husband Mr. Godin appealed the Provincial Court order requiring Mr. Godin, the stepparent of Ms. McFayden's child, to pay child support to Mr. Faint, the child's other parent and the parent with primary care of the child. Cutting to the chase, the Supreme Court upheld the lower court order and gave Mr. Faint his costs to boot.

Here is how the Supreme Court analyzed the situation, and I can do no better than quote from the judgment:

"[16] Section 88 of the FRA describes the obligation of a parent to provide for the support of the child, stating:

(1) Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child.

(2) The making of an order against one parent for the maintenance and support of a child does not affect the liability of another parent for the maintenance and support of the child or bar the making of an order against the other parent.

"[17] Section 1 of the FRA defines 'parent' as including:

(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;

"[18] Section 1(2) of the FRA defines 'stepparent' as follows:

(2) For the purpose of paragraph (b) of the definition of 'parent' in subsection (1), a person is the stepparent of a child if the person and a parent of the child

(a) are or were married, or

(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.

"[19] The Guidelines created by the federal government were adopted for use in B.C.’s FRA through the CSG. The latter defines how the Guidelines and the FRA are to work together.

"[20] Section 1 of the Guidelines sets out its objectives which includes:

(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. [Emphasis added]

"[21] Mr. Godin submits that s. 1(a) of the Guidelines should be interpreted as being applicable to a stepparent only if he or she is separated from the biological parent. Since he is still married and living with Ms. McFayden he asserts that he is not obligated to pay such child support.

"[22] Mr. Godin acknowledges that he falls within the definition of parent as found in s. (1) and 1(2) of the FRA which leads to the question of whether s. 1(a) of the Guidelines should be interpreted as obliging a stepparent to pay child support as sought by Mr. Faint only if the stepparent is separated from the biological parent.

"[23] In K.A.L., Judge Dickey succinctly addresses the interpretation and application of s. 1(a) of the Guidelines where the stepparent is not separated from the biological parent of the child, stating at para. 18 of his reasons:

[18] In analyzing the issue of whether the 'Objectives' of the Guidelines should guide the interpretation of the FRA, it must be remembered that this is an application under the FRA and not under the Divorce Act and Guidelines. The Divorce Act and Guidelines apply to persons who are, or were, married to each other. The FRA is much broader in scope in that it applies to persons married to one another, persons in a marriage-like relationship, and stepparents. The 'Objectives' of the Guidelines relate to the more restrictive Divorce Act. The Regulation broadens the scope of the Guidelines by adopting them, and then expanding their application by broadening the definitions; see s. 1(3)(h) of the Regulation, in which reference to 'spouse' in the Guidelines is to be read as a reference to 'parent' as defined in the FRA, except for s. 5, in which it is to be read as a reference to 'person'. I also find that the 'children first perspective' of the Guidelines should be used as an interpretation guide to broaden and not narrow the obligation to provide child support, unless the obligation is clearly limited. I find, therefore, that the restrictive nature of the 'Objectives' of the Guidelines does not limit the child support obligations as found in the FRA.

"[24] The approach taken by Judge Dickey in K.A.L. is consistent with that found in Adler v. Jonas, a case involving a stepparent’s obligation to pay child support to his wife’s child. Mr. Justice Hardinge wrote at para. 20:

... I think it appropriate to note here that the provisions of the Family Relations Act should be given a liberal interpretation wherever its provisions relate to children. In Prichard v. Prichard, Spencer J. of this court said at paragraph 6:

The Act as a whole should be given an interpretation consistent with its objective of regulating the affairs of families in the broad sense. Where it deals with children it should be construed liberally in their favour to provide for their 'reasonable support'.

"[25] I concur with the liberal interpretation adopted by Judge Dickey in K.A.L. and affirmed by Judge Donegan in Faint when he concluded that Mr. Godin had a legislated obligation to pay child support for [the child], and that it was not relevant that Mr. Godin and Ms. McFayden were still married and living together."

In other words, the analysis in K.A.L. was bang on and accurately interpreted the more liberal provisions of the Family Relations Act as appropriately capturing stepparents in ongoing relationships with the parent of a child.

Stepparent Caught by Hole in Family Relations Act

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my post "Family Law Act Introduced!" for more information.

The Family Relations Act, British Columbia's primary law on domestic relations, is missing something very important: a triggering event for applications involving custody, guardianship, access, child support and spousal support. Nothing in the law restricts how soon an application on these issues can be made; in particular, nothing says that an application can't be brought while a couple are still together.

This isn't usually a problem, of course, since people are usually pretty annoyed when they decide to sue one another, and if they haven't split up by the time litigation commences, the commencement of litigation will usually do it. However, there can be odd consequences when other people, like grandparents or former spouses, step into the picture, since nothing says when they can and can't make applications of their own. (I made some comments about this during the consultation phase of the Family Relations Act Review, and there's a chance that the new legislation will correct this issue.) The legislative chickens came home to roost for one stepfather after an application by the child's biological father in a case recently before the Provincial Court and brought to my attention by my friend Agnes Huang of Schuman Daltrop Basran Robin.

In K.A.L. v J.P.R., the biological father brought an application for an order that the mother's new spouse - his child's stepfather - pay child support. So far this is fine, since stepparents are also liable to pay child support. The catch, though, is that the stepfather and the child's mother were together when the father brought his application!

The judge made a very thorough review of the Family Relations Act and the Child Support Guidelines for the following basic principles:

1. Each parent of a child is responsible to support a child. (FRA, s. 88(1))
2. The fact that one parent is ordered to pay child support support doesn't stop the other parent from being ordered to pay child support. (FRA, s. 88(2))
3. "Parent" includes biological parents and steppparents, as long as the stepparent has contributed to the support of the child. (FRA, s. 1(1))
   
4. A "stepparent" is someone who is married to a parent or someone who is in a common-law relationship with a parent (FRA, s. 1(2))
5. Child support orders are to be made using the Child Support Guidelines tables. (FRA, s. 93(1))
6. Child support orders can be made in a different amount than the Guidelines tables, but only when there is an order or written agreement that provides a benefit to the child in some way and it would be unfair to apply the Guidelines tables. (FRA, s. 93(2))
7. Child support orders against stepparents can also be made in a different amount than the Guidelines tables as a result of "any other parent's legal duty to support the child." (CSG, s. 5)
   

And there you have it. Parents are liable to pay child support, stepparents are liable to pay child support for the benefit of a child, more than one "parent" can be required to pay child support at the same time, and nothing says when an application can and can't be made or restricts when a parent can bring the application. As a result:

"I, therefore, find that when one reads the legislated scheme for child support as a whole, and give the wording its 'grammatical and ordinary sense', a stepparent who satisfies the definition of 'parent' and lives with the parent of a child, is still obligated to make child support payments. This obligation occurs despite the fact that the parent of the child is also obligated to make child support payments."

"The [father] is entitled to bring a claim against the respondent stepfather for child support pursuant to s. 5 of the Guidelines."

Now, the judge didn't make an order against the stepfather at this point, and nor did the judge comment on who might be the recipient of the child support order. That will be the subject of a future application, and I expect that some interesting arguments will be advanced. I also wonder whether, some time before that application, the mother and the stepfather will enter into a written agreement under which the stepfather provide sufficient indirect benefits to the child that his child support obligation will be exhausted.

Journal Publishes List of Stepfamily Self-Help Books

The December 2009 edition of Family Relations, an organ of the National Council on Family Relations, contains a very interesting article in which the authors evaluate the usefulness of 64 self-help books for stepfamilies based on readability, content, references to the scientific literature, the qualifications of the author and comprehensiveness.

Without getting into the details of the article, the 13 books which made it into the "strongly recommended" list were, in alphabetical order:

1. Boyd, H. The step-parent's survival guide (1998, London, Ward Lock)
2. Fletcher, J.B. A career girl's guide to becoming a step-mom (2007, New York, Harper)
3. Lauer, R.H. & Lauer, J.C. Becoming family: How to build a stepfamily that really works (1999, Minneapolis, Augsburg)
4. Lutz, E. The complete idiot's guide to stepparenting (1998, New York, Alpha)
5. Mulford, P.G. Keys to successful stepmothering (1996, Hauppauge, Barron's)
6. Newman, M. Stepfamily realities: How to overcome difficulties and have a happy family (1993, Oakland, New Harbinger)
7. Norwood, P.K. & Wingender, T. The enlightened stepmother (1999, New York, Avon)
8. O'Connor, A. The truth about stepfamilies (2004, New York, Marlowe)
9. Pickhardt, C.E. Keys to successful stepfathering (1997, Hauppauge, Barron's)
10. Rosenblum, G. Stepfamilies: Making it great (2000, Minneapolis, Creative Publishing)
11. Thomas, S. Two happy homes (2005, Longmont, Spingboard Publications)
12. Tufnell, C. & Tufnell, T. Every step counts (2007, Oxford, Lion)
13. Visher, E.B. & Visher, J.S. How to win as a stepfamily (1991, New York, Routledge)

"An Evaluation of the Remarriage and Stepfamily Self-Help Literature" was written by Marilyn Coleman and Lynette Nickleberry, both of the University of Missouri.