Is your ex-spouse asking for child support for a kid that’s not yours? You’re not sure if you’re supposed to?

Whether you are just starting a relationship with someone who already has a child or are ending a relationship with someone who has a child, it is important to know what you should, could, and would be responsible for.

You might be held responsible for child support if you are qualified as common-law partners and are qualified to be labelled as spouses. To qualify as a spouse, you must be living together with your partner in a marriage-like relationship for at least 2 years, married to your partner, or have a child with your partner. Furthermore, if you begin taking on the financial liability of your partner’s child, you might have to continue this after the relationship has ended.

Although according to Section 147(4) of the Family Law Act, a step parent does not bear the duty to provide for a child unless the step parent contributed to the support of the child for at least one year, and the court proceeding for child support is started after the within one year of the last contribution of the step-parent. Section 147(5) of the Family Law Act says that the support of a step-parent is secondary to the child’s parents and guardians. Support from a step-parent would be based on the experienced standard of living of the child as well as the length of time lived with the step-parent.

In short, you cannot be responsible for your partner’s child/ren unless you have been taking on the role of being their parent while in the relationship or contributing to the child’s financial support on a regular basis for an extended period of time. That means that you should be cautious to voluntarily take on a parent role if you are not serious about the relationship yet or do not want to be chased for child support for the child in the future! You can give gifts, treats, and provide meals for the child but do not assume the financial liability of the child if you do not want to continue this financial responsibility after the relationship.

If you or a loved one are in need of advice regarding child support for a step-child, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

What Happens When You Want to Appeal an Order Made Against You in Family Court

To appeal an order made against you in family court, you will need to convince the court to stay the order so as to ensure that the status quo immediately prior to the making of the order is preserved.

When considering whether to stay the order under appeal pending the outcome of the appeal, the court will apply a three-part test as follows:

Is there a serious issue to be tried?
Will there will be irreparable harm if a stay is refused?
Does the balance of convenience favour granting a stay of the order?

1. SERIOUS QUESTION TO BE TRIED

When determining whether there is a serious issue to be tried, you will only need to convince the court that your appeal has some merit and that it is arguable not frivolous.

2. IRREPARABLE HARM

Irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured”, usually because one party cannot collect damages from the other. In family law cases, irreparable harm can be found when the best interests of the children involved may be compromised. In cases involving financial issues, where one party is impecunious and the effect of the order could not be “undone” after the hearing of the appeal, then irreparable harm may be found.

3. BALANCE OF CONVENIENCE

When considering the third part of the test, the court ought to consider which of the parties would suffer greater harm from the granting or refusing of the stay pending the appeal.

The three-part test has been used in British Columbia family law cases courts to ensure the best interests of the children are protected (see Harvey v. Pocock, 2018 BCSC 2139) and to ensure the financial status quo is preserved pending an appeal (see Zhou v. Fang, 2019 BCSC 2023), and is important to keep in mind if you are looking to appeal an order made against you in a family law matter.

If you or a loved one are in need of advice regarding appealing an order, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

Challenging a Prenuptial Agreement

A prenuptial agreement, also known as a marriage agreement or a cohabitation agreement, is an agreement that you enter in before you marry your spouse or before cohabitation with a significant other.

This agreement covers things like property, debt, spousal and child support, and is a guideline as to how you will split your assets and how much you owe the other person (or vice versa) should you and your spouse separate in the future. With a prenuptial agreement, you can prevent further potential conflict during the already emotionally charged time of separation.

But what if, when the time comes, you do not agree with the prenuptial agreement that has already been set? Is there anything you can do about it?

The short answer is yes.

It is definitely possible to challenge a prenuptial agreement in BC. You will first have to file it with the Court. Under section 93 of the Family Law Act, the Court may either set aside a part or all of the agreement and replace it with a new order, provided that one or more of the following circumstances existed when you and your spouse entered into the agreement:

a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
a spouse took improper advantage of the other spouse’s vulnerability, including the other spouse’s ignorance, need or distress;
a spouse did not understand the nature or consequences of the agreement;
other circumstances that would, under the common law, cause all or part of a contract to be voidable.

However, the Court may also decline to replace the prenuptial agreement with an order that is substantially different from the terms of the agreement. It all depends on your specific circumstances under which you and your spouse signed the prenuptial agreement.

If you or a loved one are seeking to challenge a prenuptial or cohabitation agreement, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

My Spouse Isn’t Paying Enough Child Support!

So you and your spouse have split up and you’re thinking that you should be owed more child support than is currently being paid.

In BC, child support is calculated using the Federal Child Support Guidelines along with the parent’s gross income. But what happens if your spouse tries to pay less than what they owe by hiding their income? Or if they are deliberately earning less than what they are capable of? What if your spouse tries to get out of paying child support altogether?

In all of these cases, the court may “impute income” to your spouse. Once the court determines that your spouse is underemployed or intentionally unemployed and not seeking to obtain employment, your spouse’s income will be imputed and the court will order them to pay the appropriate amount of child support. The court imputes income on an evidentiary basis, based on what it believes your spouse is capable of earning or what they actually make.

To determine if your spouse is earning to capacity, the court will apply the following principles:

Parents who are healthy and can work have a duty to seek employment
Reasonable income-earning capacity will be based on consideration of a parent’s age
Limited experience and skills do not justify a failure to pursue employment
Persistence in un-remunerative employment or unrealistic career aspirations will not be an excuse
Self-induced reduction in income will not justify the avoidance of child support obligations

The following are some more reasons under section 19 of the Federal Child Support Guidelines for which the court may decide to impute income to your spouse:

The spouse is exempt from paying federal or provincial income tax
The spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada
The spouse’s property is not reasonably utilized to generate income
The spouse unreasonably deducts expenses from income
The spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust

Remember, the court will need to have sufficient evidence from you to justify imputing income to your spouse.

If you or a loved one are seeking to claim child support and/or to have income imputed, consult Vancouver and Burnaby Family Law Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107

Why We Are Ditching the Term “Custody”– Parental Responsibilities in BC

No more “custody”?
2019 brings a change to family laws in Canada, specifically regarding parental responsibilities in the Divorce Act. The goal of this change is to improve the act so that it promotes the best interests of the child.

One of these changes includes removing the term “custody” while introducing the concepts of “parenting time” and “decision-making responsibility”.

What does this mean? Essentially, the intention is to encourage parents to focus more on the needs of their children. By removing this term, we eliminate a winner-loser mentality (where the “winner” gets custody of the child). We also remove the negative association that “custody” commonly has with the idea of police detention.

What exactly is “parenting time”?
In the place of “custody”, we now have “parenting time”. Parenting time is defined as the time that a child spends with each guardian (determined by an agreement or order).

During this time, the guardian needs to exercise parental responsibility. See below to find out what parental responsibilities includes under the law.

What are your legal responsibilities as a parent?
Some examples of parental responsibilities under the BC Family Law Act:

Making daily decisions for your child (making sure they are supervised and cared for)
Making major decisions for your child (i.e., health care, school, extracurricular activities, religion, language)
Deciding where your child will live (and with whom)
Applying for passports, licences, etc. for your child
Exercising any other responsibilities necessary to nurture your child’s development Making daily decisions for your child (making sure they are supervised and cared for)

When you separate with your spouse, you can share or divide your parental responsibilities in any way that would work best for your child.

If you or your spouse fails to exercise your parental responsibilities, the other person could potentially apply to court to get an agreement enforced or an original order changed.

If you cannot settle on an agreement regarding parenting time or have concerns about parental responsibilities, consult Vancouver & Burnaby Family Law and Custody, Access, Parenting Time lawyer/attorney Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

WHAT DO YOU MEAN I HAVE TO PAY CHILD SUPPORT…THE CHILD ISN’T EVEN MINE….

Even though that child living with you is not even your biological child, you may be liable to pay child support for a child of your spouse.

In the case of married couples, the Divorce Act imposes a clear obligation on spouses to financially support any “children of the marriage” which include “any child for whom they both stand in the place of parents” as well as “any child of whom one is the parent and for whom the other stands in the place of a parent.” In other words, liability for child support under the Divorce Act arises where you or your spouse assumed a parenting role for the child in question. The courts look at the following factors when determining if a parent/child relationship has been established between spouse and step-child:

the step-parent’s intent to treat the child as a member of his or her family;
the extent of the child’s participation in the newly-formed family;
the nature and extent of any discipline imposed by the step-parent;
whether the step-parent holds out to the child, family and others that he or she has responsibility toward the child;
the nature of the child’s relationship with the step-parent;
whether the child refers to the step-parent as “dad” or “mom” (as the case may be); and
the extent to which the original biological parent (i.e the one “replaced” by the step-parent) has an ongoing personal and financial relationship to the child.

In the case of common law couples, liability for child support arises under the Family Law Act of British Columbia where a spouse has contributed towards the support of a stepchild for a minimum period of one year although a step-parent’s liability to support a child is secondary to that of the child’s biological parent. In determining, liability for child support with respect to a step-child, the courts will look at the following factors:The length of the relationship;

The length of the relationship;
The family’s spending habits;
- Who paid the household expenses;
- The step-parent’s direct and indirect contributions to the child.

Contributions as minor as including a step-child on an employee benefits’ program through work may attract liability to pay child support for a step-child under the Family Law Act of British Columbia.

To determine your liability to pay or your entitlement to claim for a child in a blended family situation is often not clear and only a lawyer familiar in family law principles can provide you with the advice you need.

If you are being asked to pay child support for a step-child or wish to claim child support from a spouse who is not the biological parent of your child, consult Vancouver & Burnaby Family Law and Child Support lawyer/attorney Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

HOW LONG IS CHILD SUPPORT PAYABLE?

As discussed in a previous post, child support is an ongoing periodic payment made by you or received by you for the financial benefit of your child.

To answer the question for how long child support is payable in your particular case – you must first determine if the child support is payable under the Divorce Act or the Family Law Act. If you and the other parent of the child were never married, then the child support is payable under the Family Law Act. In a situation where you and the other parent were legally married, then in all likelihood the child support is payable under the Divorce Act but it is always a good idea to have an experienced family lawyer review your court order or separation agreement.

Divorce Act

Under the Divorce Act, child support orders may be made with respect to a child or children of two spouses or former spouses who, at the material time, is under the age of majority and who has not withdrawn from their charge, or is the age of majority and under their charge but unable by reason of illness, disability or other cause to withdraw from their charge or to obtain the necessaries of life.

What this means in non-legalese language is that in British Columbia, child support is payable with respect to children of married or divorced couples until the age of 19 and child support can continue to be payable after a child’s 19^th birthday in the case of physical or mental health issues. The words “other cause” do include those situations where a child attends post secondary schooling or training.

Family Law Act

Under the Family Law Act, child support orders may be made with respect to a child of parents who is under 19 or a child who is 19 or older and unable because of illness, disability or another reason to obtain the necessaries of life or withdraw from the charge of his or her parents.

What this again means in non-legalese language is that in British Columbia, child support is payable with respect to children of common law couples or even those where the parents did not ever live together until the age of 19 and child support can continue to be payable after a child’s 19^th birthday in the case of physical or mental health issues. The words “another reason” do include those situations where a child attends post secondary schooling or training.

The definitions as set out in both the Divorce Act and the Family Law Act have been interpreted by the Courts of British Columbia and the issue of whether child support continues to be payable in the case of a child who is over 19 is very fact specific and it is recommended that you review your situation with a qualified family lawyer to determine your rights and obligations with respect to child support.

If you are being asked to pay or are seeking to claim child support for a child of yours whom is over 19 years of age, consult Vancouver & Burnaby Family Law and Child Support lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

HOW LONG DO YOU HAVE TO PAY SPOUSAL SUPPORT ANYWAY?

Simply put, spousal support is the support you pay or receive from your spouse upon breakdown of your common law relationship or marriage with that person.

For how long you will receive or pay spousal support depends upon a number of factors:

Length of relationship or marriage;
Age of the spouse receiving the support;
Age of youngest child;
Education level of the spouse receiving the support;
Work history of the spouse receiving the support;
Financial means of both you and your former spouse;
Roles and functions each of you and your spouse performed during the relationship/marriage;
What are the needs of the recipient spouse to achieve financial self-sufficiency such as extra training or education

This list is not intended to be exhaustive and other facts may come into play such as the health of the recipient or even the payor spouse. The introduction of the Spousal Support Advisory Guidelines in 2008 was to give some predictability to court decisions governing the duration of spousal support by applying mathematical formulas based upon prior court decisions on this issue.

If you or a loved one is in a relationship and you wonder how long you may have to pay or be entitled to receive spousal support, timely legal advice and representation can be had by contacting Vancouver and Burnaby spousal support family law lawyer Andrew Rebane at Resolutions Law Corporation, andrew@resolutionslawcorp.com or 778-372-7107

WHAT EXACTLY IS CHILD SUPPORT?

Whether you are being asked to pay child support or are seeking child support, it is important to know exactly what constitutes child support.

Child support is an ongoing periodic payment made by you or received by you for the financial benefit of your child.

In British Columbia, child support is made up of two components:

1.Table Amount of Child Support

The first component of child support is a fixed amount that is paid monthly by you or received by you as set out in the child support tables in the Child Support Guidelines. The Table Amount of Child Support is to cover shelter, food, and day to day living expenses of your child. The quantum of Table Amount of Child Support that is payable by you or received by you is determined by line 150 of yours or the other parent’s T1 Tax Return of the previous year. Sometimes, where income has fluctuated wildly, the court will take an average of yours or the other parent’s last 3 year’s income as set out in the payor’s line 150.

2. Special or Extraordinary Expenses

In addition to the Table Amount of Child Support above, you may be required to pay or entitled to claim expenses provided such expenses are necessary in relation to your child’s best interests and the reasonableness of the expenses in light of your income and the income of your child’s other parent, and how you and the other parent spent money prior to separation. Special or Extraordinary Expenses are usually not fixed and are shared between you and your ex in proportion to your respective incomes. Special or Extraordinary Expenses include

child care expenses, medical or dental insurance premiums for your child;
out of pocket medical expenses that exceed $100 annually including orthodontics, glasses, professional counselling, speech therapy, prescription drugs, hearing aids;
primary or secondary school educational expenses or any other educational expenses including tutoring that meet the child’s particular needs;
expenses for post-secondary education; and
expenses for extracurricular activities.

The list above is not comprehensive and the courts have allowed claims for expenses that do not strictly fall within the list above and have denied claims even when such expenses fall within that list. An experienced family lawyer can advise you whether a court will allow or deny a particular claim for a Special or Extraordinary Expense.

If you are being asked to pay or are seeking to claim child support, consult Vancouver & Burnaby Family Law and Child Support lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107