CHILD SUPPORT RE-EXAMINED

Child support obligations aren’t always clear, especially if there are unusual circumstances. The B.C. Court of Appeal recently dealt with such a case.

The court considered the child support obligations for Peter (all names changed here), a pleasant 24-year-old man with a mental disability. Peter couldn’t make basic decisions for himself and likely would never be able to live independently. His life expectancy was normal, and he would need support for the rest of his life.

Peter’s parents, Mark and Linda, had divorced in 1995. They initially shared joint custody and guardianship of Peter, five years old at the time, but in late 1996, they agreed that Mark would have sole custody. Since Mark’s business took him to the United States a great deal, he also agreed to pay Linda (who earned only a modest income at the time) $300 a month in child support. This was essentially to enable her to travel to the U.S. for visits with Peter, which she did frequently over the years.

By the time of the court hearing over child support, however, both Linda and Mark were very well-off financially.

Linda had married a venture capitalist in 1998 and enjoyed an affluent lifestyle. She didn’t work, and details of her current income were sketchy (she got some money from a company her husband was involved with). Before her first marriage to Mark, she had earned roughly $20,000 a year as a charter airline employee, and in the initial court documents in this case, she said she earned $20,000 annually, though later said it was less.

Mark, 68 and retired, owned a mostly U.S. real estate portfolio worth $11 million (in addition to a substantial inheritance)and earned some $168,000 a year.

Their son Peter had some significant assets himself, partly from an inheritance from his grandmother and partly from a trust fund, though that fund could only be accessed if the Public Trustee agreed. Peter also got some monthly government assistance.

Due to the substantial change in the financial picture since the old child support arrangements had originally been put in place, the lower court decided Mark didn’t have to pay Linda any arrears dating from 2008 or make any further child support payments to her.

But Mark also wanted his ex-wife to help pay for the ongoing support of their son.

The Court of Appeal emphasized that, even though Mark could well afford to support Peter alone, Linda was also responsible for Peter’s support – it’s fundamental that both parents have an obligation to support a child like Peter, who was likely to outlive his parents.

It was Linda’s voluntary choice not to work, observed the appeal court. So it said Linda should be treated as earning $20,000 annually. Using this income figure and the child support guidelines, the appeal court ordered Linda to pay Mark $174 a month toward Peter’s child support.

Each case is unique and depends on its own facts and circumstances. If you’re involved in a difficult family law situation, consult your lawyer for help.

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer

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