H. (U.V.) v. H. (M.W.) and H. (L.G.)

2006 BCSC 1160 H.(U.V.) v. H.(M.W.) and H.(L.G.) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: H. (U.V.) v. H. (M.W.) and H. (L.G.), 2006 BCSC 1160 Date: 20060728 Docket: 993033 Registry: Vancouver Between: H. (U.V.) Plaintiff And: H. (M.W.) and H. (L.G.) Defendants Ban on Publication Pursuant to S. 486(3) C.C.C. Before: The Honourable Mr. Justice Warren Reasons for Judgment Counsel for the Plaintiff: G. Sherman Counsel for the Defendant H. (M.W.): D.J. Manson Counsel for the Defendant H. (L.G.): Appearing on his Behalf Date and Place of Trial/Hearing: November 3 and 25, 2005 Vancouver, B.C. Introduction: [1] The plaintiff is the mother of two children, R.L. born October 26, 1985, and R.T. born December 15, 1988. They are the children of the marriage between the plaintiff and the defendant H. (L.G.) (the "father") which ended in divorce in 1994, following a two-year separation. The defendant H. (M.W.) (the "stepfather") was the common law spouse of the plaintiff and stood in loco parentis to the two children between June 1994 and his arrest on September 5, 1999. [2] The plaintiff is applying to vary the child support order of Boyd J., dated June 21, 2002 (H. (U.V.) v. H.(M.W.) and H.(L.G.), 2002 BCSC 926), retroactively to the date of any change in the income of the stepfather. [3] In response, the stepfather asks the court to dismiss the application and reduce his child maintenance obligations to zero, effective immediately. He also applies for an order that the biological father is liable to pay reasonable and necessary support for the two children. [4] The father, who is self-represented, says it is the stepfather who "should be on the hook" for child support. He says the stepfather had assumed the responsibility of the children and insisted on being their sole source of support. Further, he argues either the stepfather has the financial ability to continue to pay child support, or he can rely on the financial circumstances of his mother, or he still has some assets that could be liquidated to provide money for child support. Evidence: [5] Apart from the unusual fact that there are three "parents" who have a responsibility at law to provide for the children, the matter is seriously complicated by the fact the defendant stepfather was convicted on December 3, 2001, following his guilty plea, of sexually assaulting one of the children. He was sentenced to a conditional sentence of nine months, followed by two years probation. He was arrested for the offence on September 5, 1999. Shortly thereafter, the plaintiff commenced this matrimonial action and in a separate action sued on behalf of the child for damages for the assault. [6] In her Reasons, Boyd J. noted that the stepfather had assumed full responsibility for the children from the outset of his relationship with the plaintiff, and had insisted that the father pay no support. It was for this reason that in the divorce action with the father the plaintiff did not pursue any claim against him for child support. [7] After the plaintiff commenced this action, she applied for interim child support from the defendant stepfather. Tysoe J. made an interim order of $750 a month based on the stepfather's Guideline income of $92,000 and the plaintiff's Guideline income of $65,000. Tysoe J. also ordered the stepfather to pay one-half of the mortgage on the home and contribute to the property taxes and maintenance. Boyd J. noted that thereafter the plaintiff and the father agreed that he would contribute to the plaintiff's childcare costs and the father began to pay $100 a month for the two children. [8] At the time of her 2001 order, Boyd J. found that the father earned $100,347 and had joint assets with his second wife, but a net worth of no more than $31,200. The father and his wife had a new family with associated childcare expenses and although he was only paying $100 to the support of these children, he was paying a number of their extracurricular activities and the children were staying with him for roughly half the time. Boyd J. noted the amicable relationship between the biological parents. [9] The stepfather had been a computer network architect who had enjoyed a substantial income until the collapse of the technology market in 2001 and thereafter he had found work as a contract consultant. Boyd J. accepted the stepfather's evidence, in spite of a vigorous challenge by the plaintiff's counsel, that his job search was "severely constrained by his probation supervisor's interpretation of the Conditional Sentence Order imposed by the Court of Appeal". Boyd J. anticipated that the stepfather may have significant restrictions until the expiration of the conditional sentence order in mid-January 2003. Accordingly, she found that the stepfather had been effectively unemployed since the end of February 2002. She declined to speculate on his success at finding employment. [10] In her Reasons, Boyd J. found that it would be fundamentally unfair to expect the natural father to pay the "full brunt of his Guideline amount without regard to the fact that he literally shelters the children for a full half of each month". Instead, Boyd J. fixed the father's support liability at the difference between his liability under the Guidelines and the mother's liability, which amounted to a support order of $376 payable by the father. Boyd J. then attributed a notional income to the stepfather of $20,000, which resulted in a support order of $297 a month payable by the stepfather. She specifically rejected the stepfather's argument that he should only pay one-half of that amount because the children were only with the mother for half the time. At ¶ 64-66 of her Reasons Boyd J. wrote: Considering all of the factors, including the fact that the defendant/stepfather took 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 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 stepfather 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] 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 stepfather will obtain employment and that there will be a consequential material change of circumstances, it is my hope that future applications can be avoided. [11] The plaintiff brings this application because there have been several significant changes in circumstances since the order of June 21, 2002. She outlines these in her first affidavit in support of this application, dated April 8, 2005. [12] The older child is now 19 and living full-time with the plaintiff. She is enrolled full-time at college where she has been in full-time attendance since September 2003. The stepfather and mother had always encouraged her to take post-secondary education. The child had worked part-time during the summer of 2004 but at the time the affidavits were deposed, it was anticipated that the summer of 2005 would be devoted to courses. The younger child is still in high school and lives with his mother more than half the time. [13] Further, the plaintiff lost her employment on June 27, 2003 and was given 20 months severance pay that she elected to receive over 29 months, ending in December 2005. She was not optimistic of being rehired by her former employer and started "new temporary full-time" employment as an accountant in late March 2005. She anticipated this employment would not last beyond November 2005. The current income of the plaintiff therefore reflected her severance pay and her salary from her present employer. Her Form 89 deposed of current employment income of $30,000 and severance pay of another $53,249.67, for a total of $82,511.67. The plaintiff has declared expenses of $86,071.75. [14] The father filed an affidavit in reply on August 5, 2005 in which he deposed his annual income for the years 2002 to 2005, was as follows: 2002 $109,202 2003 $108,827 2004 $106,975 2005 $110,719 (which included a 3.9% raise over 2004) [15] In a supplementary affidavit filed September 23, 2005, the father deposed briefly of the history of the relationship between the plaintiff and the stepfather. The father deposed that he had moved into a home a short distance from the children so that he could be close and it would be easier for them to move back and forth between the two homes while the children were essentially living equally at each parent's home. He remarried in 1996 when the subject children were approximately 14 and 11. In June 2005, his employment changed and now requires more travelling. The change of employment and resulting travel, plus the fact that the younger child is a teenager and more independent, has resulted in the boy spending less time at the father's home than before. Nonetheless, the father still believes the boy "resides at both homes in a somewhat equal manner". The father continues to pay for some of his son's clothing, haircuts and bus pass, as well as yearly fees for hockey and golf, and he contributes periodically to the purchase of Savings Bonds for both children as well as a RESP for the younger child. [16] The father deposed that his daughter is living in a basement suite in her mother's home and her boyfriend spends "a fair amount of time" there, including overnight stays, an arrangement of which he disapproves. Nevertheless, he describes his daughter and her boyfriend as a happy young couple who spend a good deal of time together in an adult relationship. The father is critical of the use his daughter made of some of the money she received in settlement of her claim for damages for the sexual assault. Instead of buying a cheaper car as he suggested, the daughter bought a $20,000 Acura, the insurance on which costs $4,000. He feels his daughter's choice was unwise when she was attending college and working such few hours, and that this should result in a lessened liability for education costs. [17] In response to the plaintiff's affidavit, in which she deposed that she paid for the daughter's education in 2005, the father deposed that he paid for the previous year's educational costs and that he and the plaintiff alternate the costs annually, so that they share the costs 50/50. [18] In answer to the expense for the daughter's counselling costs claimed by the plaintiff, the father says that he believes his and his current wife's extended medical plans reimburse the plaintiff 100% for this cost. The father also points to the disparity between his financial circumstances and those of the plaintiff, particularly noting that the plaintiff's house has an assessed value similar to his, but she has been able to reduce her mortgage substantially with the money she has received from the stepfather and the transfer of his half-interest under their settlement. [19] Further, the father deposed that the plaintiff has the ability to obtain good employment but was not doing so in order to continue to receive her severance. As well, he deposed that the plaintiff received a substantial payment, $100,000 USD, from her mother's estate. [20] The father staunchly believes that the real reason the matter is back before the courts is the stepfather's failure to report any changes in his income in spite of the requirement to do so in Boyd J.'s order. [21] The affidavits of the plaintiff and the replies by the father regrettably put an end to the commendably good relationship that was noted with approval by Boyd J. There is considerable disagreement between the biological parents as to the precise time the younger child spends with each parent. The parties also have a number of other facts in disagreement. The father filed his last affidavit on November 17, 2005 in response to statements made to the court by counsel during their submissions on the application. I will treat this affidavit as his submissions on the application. [22] The stepfather's first affidavit sets out the history of the litigation arising out of his sexual assault on the daughter. In reference to the child support order of June 2002, the stepfather deposed that he had made every support payment of $297 in spite of the fact he was not working until April 2003 when he obtained work as an independent contractor. During 2003 and 2004, he earned $80,012 and $88,245 respectively but he failed to file tax returns or make remittances on his taxes to Canada Revenue Agency because he used all of his income to pay his living expenses and legal fees, and to save money so he could pay or settle the civil action. He deposed he did not make any tax payments for 2005 either. He explained that he put $30,000 that he saved into RRSPs and later withdrew it as part of the settlement funds. He also borrowed money in order to fund his criminal and civil legal expenses and has been repaying several debts. One is a personal debt of $35,000 that he is repaying at $750 a month, of which he still owed $20,750 as of early September 2005. There is another $25,542 owing to a credit union on a line of credit used to pay legal fees, and he has another $4,750 owing to a law firm for fees, which he is repaying at a rate of $750 - $1,250 a month depending on his circumstances. [23] The stepfather deposed that the daughter's action was finally settled on April 20, 2005 when he paid over to her solicitors $42,000 plus $12,000 in fees, costs and disbursements. He deposed that the payment totally exhausted the balance of his savings. [24] Although the plaintiff's counsel had written to the stepfather in October 2004 requesting disclosure of his financial information as ordered by Boyd J., the stepfather deposed he did not receive a request for information until February 2005. Furthermore, he deposed that he understood that the plaintiff was content to receive $297 per month as maintenance and support from him, and receive the balance from the father. The stepfather deposed that when he did receive a request from plaintiff's counsel for his income tax returns for 2003 and 2004, he was not able to provide them because he had not prepared them. In any event, he deposed he was not in a position to pay additional money. [25] Subsequently, the stepfather prepared and filed his 2003 and 2004 tax returns. Canada Revenue Agency assessed back taxes and penalties at $43,872.41, which it agreed to accept in eight monthly instalments of $5,515, the last of which the stepfather was to have paid in March 2006. Assuming he did this, the stepfather should now have $5,500 monthly available to him to meet his living expenses and other financial obligations. [26] The stepfather attached a schedule of income earned during 2003, 2004 and 2005. It shows that he earned $80,012 in 2003, $88,245 in 2004, and $56,895 until the end of August 2005. Using his income to the end of August, I arrive at an average monthly income of $7,110 for an imputed 2005 income of $85,340. If the stepfather were the only paying parent, his child support payments would have been approximately $1,100 a month at the time of this application. The stepfather deposed that because his employer was moving operations he expected to be unemployed by October 1, 2005 and he had been unsuccessfully looking for replacement employment. Submissions of Plaintiff [27] Because the defendant stepfather is a parent as defined under s. 1 of the Family Relations Act, R.S.B.C. 1996, c. 128, his child support obligations are ongoing and not qualified as to duration: Chartier v. Chartier, [1999] 1 S.C.R. 242. The plaintiff submits the stepfather should pay the basic Guidelines support for both children in the amount of $1,007 per month, based upon his Guideline income as reported in 2004. [28] The plaintiff submits that the defendant stepfather has been steadily employed, earning an average of approximately $90,000 a year prior to 2002, and $80,000-$88,000 since the order in 2002. Because of the historical pattern of his earnings, the plaintiff submits that he is not in imminent danger of losing employment and the court should infer that his employment and income will continue as it has in the past. [29] The court has jurisdiction to make retroactive child support orders under ss. 61(3)(d) of the Family Relations Act where the parties were not previously married: T(E) v. T(KH) (1996), 25 R.F.L. (4th) 98 (B.C.C.A.). This is comparable to its jurisdiction under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.): S(L) v. P(E) (1999), 50 R.F.L. (4th) 302 (B.C.C.A.) at ¶ 40-41. The plaintiff submits, and the stepfather does not dispute, that he did not disclose his new employment and new income. Accordingly, he should have been paying approximately $1,100 a month instead of the $297 per month, which would amount to approximately $18,500 in child support arrears by the time of the hearing. [30] The stepfather had a court imposed duty to disclose information of his employment and income pursuant to the terms of the order of June 21, 2002. In these circumstances, the plaintiff submits that child support payments should be retroactive to the date the stepfather started employment and began to earn $80,000 in 2003. The plaintiff submits that there are a number of factors militating in favour of retroactive order including: ● the need on the part of the child and the stepfather's corresponding ability to pay; ● some blameworthy conduct on the part of the stepfather, such as his incomplete or misleading financial disclosure at the time of the original order; ● a necessity on the part of the plaintiff to encroach on her capital or to incur debt to meet child rearing expenses; ● the plaintiff's lack of delay in bringing the application was caused by the stepfather's failure to disclose; and ● the stepfather knew of the plaintiff's intention to pursue increased maintenance by 2004. [31] The plaintiff submits that either the stepfather's failure to disclose or his provision of false information about a change in his circumstances can form the foundation for an award of retroactive child support. The information, if provided as ordered, would have warranted a variation of child support and the non-disclosure should, therefore form the foundation for an award of retroactive child support. The increase in the stepfather's income triggers the obligation to disclose. Further, the falsification or manipulation of information has exacerbated the delay in having the support paid to those entitled to it: D.B.S. v. S.R.G, 2005 ABCA 2. Plaintiff's counsel relies on the authority of Psaila v. Psaila (1987), 10 B.C.L.R. (2d) 336 (C.A.) in submitting that where there has been financial non-disclosure, the court has the power to remedy that state of affairs by making an order for lump sum maintenance or increased periodic maintenance: see s. 96 of the Family Relations Act: [32] The plaintiff bases the claim for continuing support for the older child on the argument that she remains a child, under s. 87 of the Family Relations Act. She is unable to withdraw from the plaintiff's charge or obtain the necessities of life: Martin v. Martin, [1988] 26 B.C.L.R. (2d) 390 (B.C.C.A.) and Farden v. Farden (1993), 48 R.F.L. (3d) 60. [33] Although she is over 19, she is enrolled in a full-time course of studies at a college and expects to complete her baccalaureate degree at Simon Fraser University. Further, she has applied for, and obtained the maximum amount of financial assistance in the form of student loans, and she has an appropriate and realistic career plan connected to her post-secondary education. R.L. has maximized her total earnings through part-time employment given her capacity and the demands further education imposed upon her. Further, she is successful in school and all of the parties had planned for both children to obtain post-secondary education. In these circumstances, the principles enunciated in Farden apply. Submissions of the Defendant Stepfather: [34] While the stepfather acknowledges that he was a parent of the subject children, he disputes the submission that once someone becomes a "parent" by having contributed to the maintenance of a child for at least one year, the obligation is permanent. He submits that, as in the circumstances of Dutrisac v. Ulm, 2000 BCCA 334, the time has come to relieve him in whole or in part of the obligation to pay child support. [35] His counsel submits that in Dutrisac, Esson J.A. noted the difference of the definition of parent in the Family Relations Act from the definition of parent in the Divorce Act. The Family Relations Act uses a more straightforward approach qualifying a parent once he or she has contributed to the support and maintenance of the child for at least one year. In Dutrisac at ¶ 21 Esson J.A. quoted the following comments by Southin J.A. in Beatty v. Beatty (1997), 33 B.C.L.R. (3d) 247: 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. [36] At ¶ 22 Esson J.A. then distinguished the decision of the Supreme Court of Canada in Chartier, opining that nothing in the decision "would preclude an order reducing the quantum of the obligation to zero if, in all the circumstances, that was found to be appropriate". [37] The stepfather submits that the Court of Appeal has decided that a child support obligation of a person who is not a biological parent or parent by adoption, under s. 5 of the Federal Child Support Guidelines, SOR 97/175 (the "Guidelines"), can be varied or cancelled depending on the circumstances of the case. This is in marked contrast with the obligation imposed upon a biological or adoptive parent, such as the father: Guidelines s. 3 and Stoddard v. Atwood, 2001 NSCA 69. Counsel for the stepfather submits that there have been a number of judgments from British Columbia courts interpreting and applying s. 5 of the Guidelines. The following cases are examples. [38] In Ruth v. Young, [1997] B.C.J. No. 1848 (QL) (S.C.) the court permitted a reduction in the amount of a stepparent's support obligation by the amount the biological parent has a legal duty to pay even if that parent is in arrears. In Adler v. Jonas (1999), 48 R.F.L. (4th) 228 (B.C.S.C.), the court provided a three step process for determining the amount of support payable by a stepparent. The court should consider the upper limit of the stepparent's exposure, the legal duty of any other parent to provide support, and whether the total contribution of the birth parents achieves a full standard of support. If the birth parent's contribution is insufficient, the stepparent may be required to top up the support. Singh v. Singh, [1997] B.C.J. No. 2195 (QL) (S.C.), held that the court should not simply subtract the table amount of the birth parent's obligation from the stepparent's in determining the stepparent's support obligation. The court should consider the table amount and the condition, needs, means, and circumstances of both the parties and the children. In Squires v. Severs, 2000 BCSC 853, Drost J. approved of a structured approach in assessing the obligation of a stepparent to contribute to the support of the child. In Russenberger v. Rebagliati, 2000 BCSC 82, the court held that the concluding words of s. 5 of the Guidelines, "having regard to these Guidelines and any other parent's legal duty to support the child", are not exhaustive of the considerations the court may take into account in determining support. [39] The stepfather's counsel argued that the decision of Drost J. in Squires is a helpful review of cases dealing with multiple obligations and the application of s. 5 of the Guidelines. At ¶ 44, Drost J. wrote: Obviously, the quantification of a step-parent's financial obligation to support a child, cannot and should not be approached in a "formulaic" manner. After all, the legislators saw fit to grant the courts the discretion, when assessing the obligation of step-parent or someone who stands in place of a parent, to fix an amount the court considers "appropriate", having regard to the Guidelines and any other parents [sic] legal duty to support the child. The exercise of such a discretion cannot be governed by a formulaic approach to the problem, which is what Hardinge J. and Aston J. set out to achieve. [40] The stepfather's counsel submits that the court should follow the three-step process in Adler and first determine his client's child support obligations according to the table in the Guidelines. Based upon his 2004 taxable income of $88,447 he would have a prima facie support obligation of $1,170 per month for both children. The second step would be to consider the support obligation of the biological father who, based upon his 2005 income of $110,719 would have a support obligation of $1,328 per month. Then, if the contribution is insufficient, the step parent may be required to top up the support. Counsel submits that s. 5 of the Guidelines does not require the court to simply subtract the table amount the birth parent should pay from that of the stepparent in determining the stepparent's support obligations. Rather the court should consider the table amount and all of the condition, needs, means and circumstances of the parties and the children, as well as the relationship between the stepparent and the children, including the length of time that the relationship lasted and whether it is a continuing relationship: see Singh. [41] The stepfather's counsel submits that because this is neither a shared custody nor a split custody situation, and this not a case of undue hardship for the father, there should be no basis upon which to reduce the father's obligation. Ruth is an authority permitting the court to reduce the amount of the stepparent's child support obligation by the amount the birth parent has a legal duty to pay and accordingly, counsel submits that that principle should be applied reducing his client's support to zero. [42] Alternatively, the court should decide whether the total contribution of both parents achieves the necessary fair standard of support. The stepfather submits that it does, but if not, then he should only be required to "top up" the support. In counsel's submission, the combined child support obligation of both biological parents is $2,379 per month (the father's income of $110,719= $1,328 child support, plus the mother's child support obligation of $1,051). The stepfather submits that this combined contribution achieves a "fair standard of support" and there is no need for any top up because the children are well provided for by the natural parents. Further, the older child has contributed, and will continue to be able to contribute, to her own maintenance and support. [43] The stepfather's counsel submits that there are other factors militating against a continuing obligation for his client to contribute to the support of the children: (i) The stepfather is not the natural father of either child and never adopted either of them. (ii) The relationship between the stepfather and the plaintiff only lasted five years and it was a condition of his bail that he had no contact with the older child. (iii) The stepfather has had no relationship with either child for over six years. (iv) His client is financially exhausted as a result of the ongoing criminal and civil litigation which has resulted in huge legal fees plus the cost of settlement of the older child's claims against him. (v) The younger child is over 16 and well provided for by his biological parents who are quite capable of meeting his financial needs. (vi) The older child is no longer a child but will be 21 in October 2006. She lives in a basement suite in her mother's home, has her own pets, and a boyfriend with whom "she has an adult relationship". She is in her second year of University education and made a decision to use some of the settlement proceeds for the purchase of a motor vehicle rather than using the funds for her living and educational expenses. Further she is employed part-time, has approximately $5,000 in the bank and her own credit card. The older child receives financial and other support from both of her parents who are actively involved in her life and accordingly she is well provided for. (vii) This defendant is independently employed and is only able to raise the settlement monies by incurring a tax debt which he has to pay off which required him to liquidate some of his retirement funds. Further, he has a 2005 income tax liability which counsel estimates to be at least $35,000. (viii) The stepfather is insolvent with assets of $165,638 and offsetting liabilities of $238,482.41. His largest single asset, a locked in RRSP of $148,466 is not available. (ix) The stepfather is 58 years of age and lives in a basement suite in his mother's home and is likely to be without employment given his inability to find alternative employment over a six-month job hunt. [44] Counsel submits that his client must be given an opportunity to rehabilitate himself financially and save for his retirement. This court ought to apply the principles enunciated in Dutrisac, Sharratt and Beatty, and reduce his child support obligation to zero. [45] In reference to the claim for retroactive child support, counsel submits that the court should not exercise its discretion to award retroactive support. In spite of the stepfather delivering his monthly maintenance cheques to the plaintiff's lawyer's office and seeing counsel on at least five or six occasions, at no time during the years prior to her application was he ever asked for updated financial information. The stepfather was entitled to assume that the children's mother was content to receive the $297 per month as ordered by Madam Justice Boyd. [46] Further, since the order of Madam Justice Boyd of June 21, 2002, his client's circumstances were such that he could not have met his financial obligations if there had been any increase in child support payments. All of the available income was fully committed to meeting the stepfather's modest living expenses, loan repayments, legal fees, and saving in order to meet the ultimate compensation payment for the older child. His present financial circumstances are such that he is unable to make a lump sum payment or periodic retroactive support payments, and such an order would impose an undue hardship on him. Further, there is no evidence before the court that either the children's mother or the children themselves have suffered as a result of the stepfather not paying any increased child support over the previous three years. In fact, the evidence of both biological parents confirms that they have cooperated and provided very well indeed for the needs of the children. Submissions of the Father: [47] The father submits that the stepfather has been able to afford to hire expensive lawyers to defend him civilly and criminally. He has demonstrated a willingness to pay the legal fees and the federal income tax returns at the expense of his financial obligations toward the children. The father submits that the issue of child support is paramount. The father says that the stepfather could sell some assets such as his boat that he believes has a resale value of $15,000. In any event, the stepfather was under court order to report any changes in his income so that the child support could be reviewed and he deliberately chose to ignore it. [48] The father says that the stepfather's family has supported him financially and emotionally. The stepfather continues to own expensive luxuries such as his ski boat, and he has had the ability to borrow some money from his stepfather to pay his legal fees. [49] The father says that the arrangement that he and the plaintiff had with respect to child maintenance over the last 13 or so years, arose at the stepfather's insistence that he assume the financial responsibility of providing for the children. The stepfather took the children to Hawaii twice and Disneyland once and spoiled them with expensive gifts and until the relationship was terminated with his arrest in 1999, he had been the "parent" for those children for half their lives. The father relies upon the following statement from Chartier at ¶ 17, 21, 39 and 42: a person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent the court must look to the nature of the relationship to determine if a person in fact does stand in the place of a parent to a child. Once it is shown that the child is to be considered, in fact, a child of the marriage, the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act . The obligation to support a child arises as soon as that child is determined to be 'a child of the marriage'. [50] Further, also in reference in Chartier, the father says that the breakdown of the parent-child relationship following a separation is not a relevant factor in determining whether a person stands in place of a parent for the purpose of the Divorce Act. In this case, the breakdown of the relationship with the children had absolutely nothing to do with the children and everything to do with the stepfather's conduct. It was a self-inflicted separation and even if a relationship has broken down after a separation or divorce, the obligation of a person who stand in the place of a parent to support a child remains the same: Chartier at ¶ 45. [51] The father submits that he has a good father-daughter relationship. He also has a strong working relationship with the plaintiff on matters concerning the children. Although he believes that his daughter could have and should have spent some of the settlement monies on a less expensive vehicle, she was entitled to spend the money as she saw fit and perhaps she saw the purchase as some sort of therapy for what she had to endure in the hands of the stepfather. [52] Turning to the financial circumstances of the parties, the father submits that until the stepfather's arrest in 1999, their respective household incomes were essentially equal. Accordingly, there was no need to seek out additional funds for the support of the children. Shortly before the arrest, the father had moved into a new home and assumed fresh financial obligation. This move was made in part relying on the position taken by the stepfather that he would be the sole source of support for the children. In spite of his fresh financial burdens, the father agreed to pay $100 a month to the plaintiff, and continued until the stepfather joined him as a co-defendant in this application. As a result of the court order, he was obliged to pay $376 a month in bi-weekly instalments of $174. The father voluntarily increased this amount and deposed that he has and will continue to provide financial and emotional support for his two children. [53] In addition to the amount of child support he pays for the two children, the father says that he spends another $516 per month on clothing, food, sports, registered educational savings plan, Canada Savings bonds, miscellaneous matters and gifts, and he will be paying a minimum of $4,000 for the older child's 2006 university tuition. If he was ordered to pay increased monthly support, it would have an impact upon his ability to pay money for the expenses and that would not be in the best interests of the children. [54] Further, he and the plaintiff have agreed to pay for the children's post-secondary education costs on an alternating year basis, and to share major expenses. The father has taken steps to ensure that his two children from his marriage with the plaintiff and his two children by his second marriage will share equally in his estate and to that end he has title to his present home as a tenant in common. His estate provides for equal division among his four children. With reference to the plaintiff's financial circumstances, the father submits that she received a severance package from her former employer, which entitled her to receive her monthly salary on termination for 20 months. As a CGA, she is well educated and employable. [55] The father believes that the stepfather had manipulated the system for six years and he is endeavouring to lessen the financial burden placed upon him. He submits that the stepfather knowingly and deliberately disobeyed the order of Madam Justice Boyd by not declaring changes in his income. [56] The father argued that the stepfather's counsel's submission on s. 3 of the Guidelines should be applied fully to him. The father says that this takes into account the shared parenting relationship he has with the plaintiff for the younger child who spends forty percent of the time with him annually, and accordingly s. 9 of the Guidelines would apply. The Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63 held at ¶ 33: Parliament, in adopting s. 9, deliberately chose to emphasize the objectives of fairness, flexibility, and recognition of the actual conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought, even if to the detriment of predictability, consistency, and efficiency to some degree. The legislator recognized in s. 9 that there is a wide range of situations of shared custody depicting the reality of different families. [57] Further, at ¶ 39 the Court held: The specific language of s. 9 warrants emphasis on flexibility and fairness. The discretion bestowed on courts to determine the child support amount in shared custody arrangement calls for the acknowledgment of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case. [58] 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. [59] In these circumstances, the father submits that because the focus on 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. [60] The singular breach of trust by the father that resulted in his removal as a stepparent does not relieve him of the financial obligation to continue to assist with the children's standard of care. Conclusion and Orders [61] I see nothing in the circumstances of the parties that persuades me there should be a departure from the basic arrangement ordered by Boyd J. in her Reasons of June 21, 2002. [62] There has been a substantial change in the financial circumstances of the stepfather, which Boyd J. anticipated, and the stepfather was under a court-imposed obligation to report any such change to plaintiff's counsel. He sought to hide behind the fact that because he delivered the support cheques directly to her counsel's office, the failure of her lawyer to enquire relieved him of his duty to report. Such an argument is untenable. There was no duty imposed upon the plaintiff or her counsel to enquire; the duty rested with the defendant stepfather. [63] In do not find that there was any inordinate delay on the part of the plaintiff in pursuing a change in the order of support, nor does the failure of the stepfather to report the change in his circumstances shift the burden onto the father in any way. The fact is the defendant stepfather enjoyed a substantial increase in income and although he had significant financial obligations for legal fees and unpaid taxes, he should have reported the change as ordered and put before the court the reasons why he should not pay increased support. [64] Boyd J. found the plaintiff's shared custody arrangement was part of her means and circumstances and there was no claim for expenses under s. 7 of the Guidelines. As a chartered accountant, at the time she earned $63,000 a year with offsetting expenses of $97,700. Boyd J. noted that the settlement of the plaintiff's claims for damages in tort against the stepfather, which resulted in the transfer of his half interest in the matrimonial home to the plaintiff, would also increase her expenses. [65] I find that the plaintiff's present means and circumstances have changed to the extent her income for 2005 was $83,000 but this included her severance income of $53,250 and she has offsetting expenses of $86,100. Further, the shared custody arrangement for the older child has ended and R.L. now resides full time with her mother, albeit in the suite. The younger child R.T. is not spending as much time with his father as previously and although the father deposed that the younger child spent "somewhat equal time" with him and spent much of his time at a friend's home, I conclude that the boy is primarily residing with the plaintiff. [66] The father's means and circumstances have changed little since the original order, other than the fact that he has another child and his employment has changed with the result he travels slightly more, but closer to home. His employment with Weyerhaeuser ended and he now works for a smaller company. His income at the time of the order was $100,350, with a net worth of no more than $31,200. His income in 2002 was $109,200, in 2003, it was $108,830, and in 2004, it was $106,975. Although he did not file a Form 89 he deposed that his mortgage remains about the same, while the plaintiff has been able to pay down her mortgage. [67] The means and circumstances of the stepfather have improved considerably since the 2002 order in that he had returned to work as an IT consultant and his income increased as set out above in ¶ 26 although as of his September 29, 2005 affidavit, he deposed that his employer, Scottworks Solutions, had sold out to another company and he expected his employment to end in October. He also deposed of difficulties in finding employment in spite of efforts to find new employment but given his abilities in the field, I find that he will likely find new employment as remunerative as at present. In any event, he will report his employment income, supported by pay statements, income tax returns, or other documents so that his precise income for child support purposes can be determined, and adjustments made as required. Although the stepfather has few assets in his name he has managed to pay off or reduce his debts but he achieved this at the expense of his responsibility to pay the appropriate child support. [68] Preston J. noted in Russenberger at ¶ 30 that the considerations in s. 5 of the Guidelines are not exhaustive of the factors that should guide the court in exercising its discretion to make an appropriate award of support for a parent who stands loco parentis. The court must make its determination of an appropriate child support obligation for a stepparent in light of all of the circumstances in an individual case, including recognition of the primary obligation of biological parents for the support of the children inherent in the structure of the Guidelines and the Family Relations Act: Russenberger at ¶ 32. [69] In this case I find the following factors are particularly relevant: ● 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. [70] I turn now to consider the appropriate amount of child support payable for the two children and the apportioning between the parties. I adopt the approach set out in the Reasons for Judgment of Boyd J. I too agree that it would be unfair to burden the father with the full brunt of his Guideline amount but not because he shelters the children for half the time for I find he no longer has shared custody in fact, but access to the older child and something less than shared custody for the younger. Rather, it would be unfair because the father was entitled to organize his affairs and assume fresh marital and paternal obligations based on the stepfather's earlier undertaking. Further, he is already contributing voluntarily to the children's expenses and sharing the cost of university tuition. Accordingly, I find it would still be unfair to burden him with the full amount of child support justifiable under the Guidelines. [71] In spite of the fact this is not a shared custody regime, I approach the child support obligations as did Boyd J., initially from the perspective of the differential between the father's notional Guideline amount of $1,320 (based on an income of $110,719) and the plaintiff's Guideline amount of $890 (based on income that I set at $67,640 which is the average of her Line 150 income for the years 2003 to 2005). The difference of $430 is the amount the father shall pay for the support of the two children. [72] Turning now to the stepfather's support obligation, I set his income for Guideline purposes at $88,245 for 2004 and $85,000 for 2005 and to the date of this order. This would result in a 2004 child support obligation of approximately $1,100 a month and a 2005 support obligation of approximately $1,075 a month until May 1, 2006 and thereafter $1,251. The combined payments of $430 from the father, $890 (notionally) from the mother and $1,100 to $1,251 from the stepfather would provide between $2,420 and $2,571 to meet the mother's monthly expenses of the children. Based upon her Form 89 expense list and attributing half of the monthly housing expenses of $2,400 or $1,200 to the children and adding on the other child related expenses including food, transportation, health, clothing and miscellaneous expenses totalling at least $1,000, I arrive at a bare monthly cost of approximately $2,200. However, I consider the plaintiff's child expense list to be conservative. For example, it does not provide for any holiday expense for the younger child and a modest $50 a month for recreation/entertainment nor any provision for the numerous other expenses that crop up unexpectedly from time to time. For that reason, I am not disposed to reduce the amount of support to be paid by either the father or the stepfather. [73] 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 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. [74] The plaintiff has been successful on this application and ordinarily she would be entitled to her costs against the defendant stepfather. Because of the stepfather's failure to report his income as ordered, it may be argued his conduct is deserving of reproval marked by an order of increased costs but there are also issues of costs as between the father, the mother and the stepfather and counsel are at liberty to give written submissions on the entire issue of costs. "T.P. Warren, J." The Honourable Mr. Justice T.P. Warren