My ex died, do I still have to pay child support?

Sometimes, the areas of Family Law and Estate Law intersect and one relatively recent Supreme Court of British Columbia answers the question of what happens to the payor’s obligations to pay child support when the payee dies.

This situation was addressed in Carpentier v. British Columbia (Director of Family Maintenance Enforcement) 2017 BCSC 250 (“Carpentier”) where the payor was in arrears of child support at the time the payee died. The payor argued that not only did the obligation to pay child support going forward terminate upon the death of the payee but all child support arrears were cancelled as well.

The issues before the Court were two fold:

Did the payor have to continue paying child support upon the death of the payee; and
Did the payor have to pay child support arrears owing as of the payee’s date of death.

The Court determined that a child support claim is a claim personal to the payee and as such a child support claim does not continue after the death of the payee, and, correspondingly, the payor’s obligation to pay child support accruing beyond the date of death of the payee is extinguished. However, when it came to the issue of child support arrears, the Court took the position that such arrears constituted a judgment for that amount of child support that was in arrears as of the payee’s date of death.

In other words, if the parent of your child dies your ongoing obligation to pay child support ends but you will be obligated to pay to that person’s estate any amounts of child support owing as of the date of that parent’s death.

If you are being asked to pay or are seeking to claim child support in a situation where the opposing party has died, 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.

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.

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