Step Children: What? I Pay Child Support For Them?

Step Children: What? I Pay Child Support For Them?

As a practicing family law lawyer in British Columbia, I see many clients wince and squirm when they find out their soon-to-be-ex may claim child support against them for the step-children even when their ex gets child support from the biological parent. How can this be? Isn’t this double dipping or something? The problem is even worse for people where the divorce scenario is such that a high income earner with an income of $150,000 per year and up has three step children and the biological parent earns only $50,000 per year. At first blush the Federal Child Support Guidelines (the “FCSG”) suggest there might be a whopping monthly payment of $2000 to $3000 per month (less the $998 from the biological parent) coming as the kiss goodbye! Yikes. Forget the new Audi R8, you may be driving the old Toyota Prius for a while. What is the obligation? To assist you we need to understand some basic legal structure that applies to the step-parent child support case.

In Canada and in British Columbia, the FCSGs provide that in the circumstance where a person “stands in the place of a parent” (that is a fancy legal phrase which really means “step-parent”) the obligation to pay child support is not necessarily the same as the obligation to pay child support for a natural child. For a natural child, the obligation is clear because a parent must pay child support based on a table which dictates how much child support is paid by reference to the amount of income earned. Figuring out how much a step-parent must pay introduces an element of discretion, and determining how to exercise that discretion becomes the real issue. Unfortunately for step-parents the amount of child support payable on the Guidelines is considered- but there is also consideration as to the biological parent’s legal duty to support the child as well. To put it in simple terms you start off by looking at the step-parent’s income and the biological parent’s income but you don’t stop there.

So where is the good news for step-parents? There is relief from some of the obligation when you look at the precedent found in the case law concerning a step-parent’s obligation. What is important to remember is that the law treats step-parents fairly if they present the facts or rely on the facts that will help them. When not handled properly, quite honestly step-parents can be hammered on child support for step-children. I will provide a few of the various available facts used to reduce the legal obligation:

  1. The relationship with step-child. Where a step child wants nothing to do with a step parent, this can be an important consideration. Support can be reduced when the child relationship with the step-parent evaporates or diminishes on separation;
  2. The length of the relationship. Shorter step-parent relationships with children generally mean an increased likelihood that support will be reduced; and
  3. New relationships. If a parent seeks child support from a step-parent and has entered into another relationship, this raises the likelihood of reducing support.

The obligation to pay child support for a step-child has an unfortunate reality. The concept behind step-parent child support is that the child has a right to the standard of living enjoyed while being supported by and living with the step-parent. Accordingly it may be very important for step-parents who think that their relationship with their spouse might be on thin ice to carefully assess what kind of life-style they provide for the step children. Providing a higher standard of living may just lead to a more significant obligation if the relationship ends.

Sadly sometimes step children don’t know how to process their relationship with their biological parent and the concurrent step-parent relationship which can lead to a circumstance where step children don’t treat their step parents too well. These step parents need to be cognizant that even in this circumstance, if the marriage or relationship ends, the salt in the wound might be a child support obligation to a step-child. Knowing what is legally possible to do to reduce the obligation for these children may turn out to be very important if you are separating or divorcing and you have step children.

Originally published September 13, 2012

Are You Booting Me Out?

Are You Booting Me Out?

Can things feel worse? The person you thought was your best friend and life partner wants a divorce, and to make matters even worse, they demand your immediate departure. Your spouse now wants you to leave the house in which you and your family live!

Can your spouse just boot you out? Can someone get to occupy the home you both jointly own, the place which you paid for or at least contributed to financially? Do you need to fear the threat that your spouse will call the police if you won’t leave?

Let me help with these questions so that your spouse’s demands don’t unnecessarily turn you into an involuntary couch surfer. Obviously a judge can make an order that ejects a spouse but quite frankly, for the ordinary couple the ousting scenario will not likely happen. If you and your spouse cannot tolerate each other that alone is insufficient to justify an order that turfs you. Even those kinds of fights that occur between spouses from time to time -those typical arguments where things get heated- won’t likely result in ejection.

It actually takes reasonably substantial evidence before a judge will displace a person from their home and, accordingly, a spouse’s demand in and of itself should not be worrisome. If a spouse wants you out, they have the onus to prove that living together in the same home is a practical impossibility. It is not good enough to suggest that there is substantial incompatibility between yourself and the spouse. When should you worry about losing occupancy? Here is a list of some -but not all- of the reasons you might lose the right to live in your home:

  1. conduct between spouses that results in damage to the children’s welfare or a real and substantial risk that such harm to the children’s welfare may occur;
  2. assault between spouses;
  3. behaviour that affects the other spouse’s quiet use and enjoyment of the home; and
  4. cruelty, both emotional or otherwise.

If your spouse is telling you that they want you out, remember that very often if there is a portion of the home that can be divided off in some equitable manner, this can be a solution and is one that judges often make.

Don’t let the threats get to you. Speak to a lawyer. Don’t react, but simply treat your partner with respect even if they want you out, and it will be unlikely they can succeed when they try to give you the heave-ho from your home.

Originally published October 1, 2012 by Aaron Lessing

Is Mediation Right for Me?

Is Mediation Right for Me?

MediateBC’s new video, “Once Upon a Fairy Tale” describes their mediation services in the idealized setting of knights and princesses and happy endings.

But separation and divorce isn’t a fairy tale. If you and your spouse are not particularly amicable, or if one or both of you are unwilling to compromise on a key issue, then mediation is a waste of your time and money. For example, take the issue of parenting time.  You have been an active parent throughout the marriage and want to share parenting time equally. Your spouse wants to restrict you to seeing the kids on alternate weekends only. You both file your court pleadings and letters between lawyers get sent back and forth. You make no progress at your Judicial Case Conference, and after many months your spouse has still not budged from his/her original position. A 5-day trial is set for next month. Do you really think mediation (which is non-binding) would be productive at this point? If you could have reached a compromise, don’t you think it would have happened by now? Unlike in fairy tales, mediators are not magical wizards. If you and your spouse are not able to agree on a key issue, you will need to rely on the (decidedly non-magical) powers of the court.

Some things to consider:

  1. The cost of most mediators runs between $250 to $500 per hour. A typical mediation will run five or more hours. You and your spouse will be required to share the costs of the mediator’s fees, while at the same time paying your lawyers their hourly rates as well. If a settlement is not reached, that is money out the door.
  2. Sometimes your spouse will serve you with what is called a “Notice to Mediate” requiring you to attend (and pay your share of) mediation. This is not necessarily a bad thing if compromise is possible, but what if it’s not? Is your spouse using a last minute Notice to Mediate as a means to try to get an adjournment of your upcoming trial or pending court appearance?  Maybe your spouse has access to more disposable income and is trying to force you to take on unnecessary expenses he or she knows you cannot afford, hoping you’ll exhaust your savings and settle on his/her terms.
  3. What if there is a power imbalance in the relationship? Are you intimidated by your spouse? Did you have trouble asserting yourself during the relationship? Your spouse may be hoping to bully you into agreeing to his or her terms in front of the mediator.
  4. Is there a history of family violence? Are you able to meet and negotiate with your spouse and still feel safe?

To be clear, if you are in the fortunate position to be able to mediate with your spouse, congratulations! You will save time, stress, and money and maybe end up better off than had you engaged in a contested legal battle. You might be so fortunate as to not even need to hire a lawyer!

And although many of the people who come to Lessing Brandon and Company fall outside Mediate BC’s 80% success rate, the lawyers at Lessing Brandon & Company Family Law are familiar with the local mediation roster, and we occasionally assist our clients to hire the top private mediators in the lower mainland. We are more than ready to assist if you and your spouse are able and willing to compromise. We will do everything we can to make sure you “live happily ever after”.

 

Lawyers For Kids? A Pilot Project.

Lawyers For Kids? A Pilot Project.

New Project to Give Children a Real Voice in B.C. Courts

Legal battles between parents often take a terrible toll on kids.

The Society for Children and Youth of BC (SCY) has launched an exciting new initiative that provides free legal advice directly to minors in need. Children up to age 19 can phone 778-657-5544 or toll free at 1-877-462-0037 or visit http://www.scyofbc.org/child-youth-legal-centre/ and make an appointment to speak privately with a lawyer about any family law issue. Kids who live outside of Vancouver can usually speak to someone over the phone.

Navigating a family law case is a high-stakes venture, especially when parental rights are concerned. There are a lot of factors, both new and old, that can influence the final outcome. That’s why any party in family court proceedings should seriously consider contacting a lawyer who specializes in this area. You need an experienced lawyer who is focused on current trends and changes in the legal landscape of family law.