Is a stepparent obligated to pay child support in BC? Case Brief of OZ v MZ

It is generally understood that biological parents are obligated to provide child support after separation, but when it comes to stepparents, the rules are not as clear. This often raises questions about whether they have the same obligations as parents or guardians. This blog post defines what a stepparent is, discusses whether stepparents are obligated to pay child support and when they are obligated, and breaks down the case of OZ v MZ.

Stepparent definition

According to section 146 of the BC Family Law Act (FLA),[1] a “stepparent is a spouse of the child’s parent who has lived with the child and the child’s parent during the child’s life.”[2]

Who has the obligation to support a child?

Each biological parent or guardian of a child has the duty to provide child support upon separation according to section 147 of the FLA.

According to section 147(4) of the FLA, a stepparent may have a duty to provide support for the child when the stepparent has already contributed to the support or care of the child for at least one year, or an application for an order against the stepparent is filed within one year from their last contribution to the child’s support.

It is important to note that the FLA does not automatically impose an obligation on the stepparent to provide child support. If a stepparent does have this duty, it is secondary to the child's biological parents and other guardians. When considering the stepparent’s responsibility, their obligations are limited by factors such as the child’s standard of living during the relationship between the stepparent and the stepparent’s spouse and the length of time that the child lived with the stepparent.[3]

Section 2(2) of the Divorce Act, which is federal legislation, provides that in cases where parties were married and one of the parents is not a biological parent, they may have to provide child support where they have “stood in the place of a parent.” In Chartier v Chartier, [4] the court set out the factors used to decide whether someone is considered to be “standing in the place of a parent:”

-          whether the child participates in the extended family as compared to a biological child

-          whether the person financially provides for the child

-          whether the person disciplines the child

-          how the person represents their relationship to the world

-          whether the child has a relationship with their absent biological parent

Pre-made agreements

In OZ v MZ, the discussion of pre-made agreements for child support and whether they are valid or binding is discussed. Section 148 of the FLA states that an agreement respecting child support is only binding if it is made after separation or when the parties are about to separate, to be effective on separation [5]. The section also states that a written agreement that is filed in the court can be enforceable under the FLA and the Family Maintenance Enforcement Act as if it were an order of the court. The court may also set aside or replace an order on application by a party if the court would make a different order when determining child support. [6]

OZ v MZ case discussion

In OZ v MZ, a case for whether stepparents are obligated to contribute to child support, the couple was married before in Russia (in 1990-2003). The wife, OZ, had twins with someone else as a result of the breakdown of their marriage in 2004. They then got back together in 2012-2015 in North Vancouver, and MZ is the stepfather to the twins.

In Russia, the couple had made prior agreements with respect to child support when they were still together. This stated that “MZ would not be financially responsible for any obligations in relation to the twins.” [7]

Upon getting back together in 2012, they intended to live together in a townhome as a “happy family” or a single unit. It is important to note that they did not intend to live as a separate family. They stayed together for approximately 36 months before they separated again in June 2015. The court stated that their marriage-like union and the fact that they were living together as a happy family with the twins for 36 months established that the couple were in fact spouses, therefore MZ is a proper stepparent to the twins, satisfying section 146 of the FLA. [8]

There also was an agreement between the parties which stated their intention to resume cohabitation. This stated that they intended to live as a family unit, to love and respect each other, and to resolve issues as family [9]. This was further evidence that they were proper spouses and MZ was a stepparent.

Does MZ have a prima facie obligation to provide child support for the Twins?

Whether MZ had a prima facie (on its face) obligation to provide child support for the twins according to section 147(4) of the FLA was the core issue in this case.

MZ began by arguing on the technicalities of section 147(4)(b), focusing on when the claim was brought and whether it was valid and could proceed. OZ brought the claim before the couple separated in April 2015, and they ceased to cohabitate in June 2015. Though the wording of section 147(4)(b) states the claim must be brought within one year after the stepparent last contributed support, the court decided that the unusual timing would not deprive OZ of making her claim as it would require a very technical reading of the section. [10]

The court then looked at the contributions made by each parent and how it affected or supported the twins. OZ and MZ kept their finances somewhat separate from each other and MZ isolated himself from day-to-day costs for the twins. He also did not pay for any sporting expenses for the twins, tutoring, clothing, or allowance [11]. The court did however note that MZ paid for half the mortgage and strata expenses for the townhouse where they lived as a family for three years. He provided basic needs for the twins such as food and shelter, and the family went on multiple vacations together where he paid for half the entertainment and travel costs for the entire family, including an extravagant boating trip. He also would often walk the twins to school. [12]

The court concluded that this evidence indicated that MZ was “standing in the place of a parent” for that three-year period. The court also highlighted that they were not mere housemates because MZ contributed financially and emotionally to the twins’ upbringing [13]. Although MZ tried to diminish his role in the twins’ lives, his economic contributions extended well beyond being “trivial” or “sporadic.” They were not just “gestures of occasional generosity,” but the contributions were “substantial, consistent, and regular.” [14]

Overall, MZ satisfied the definition of stepparent under section 146 of the FLA. MZ’s large role in the twins’ lives and upbringing triggered a prima facie duty to provide child support under section 147(4) of the FLA to provide child support as a stepparent.

Do the prior agreements negate MZ’s prima facie obligation to support the twins?

The couple entered into two agreements with respect to child support.

The first agreement was made in Russia after the couple’s separation and divorce in 2004 and before the twins’ birth. This was not binding because the separation in June 2015 was at issue, and the agreement was made in 2004, not after or right before the 2015 separation. [15]

The second agreement was made in North Vancouver in 2012, shortly before they resumed cohabitating as a family. Again, it does not comply with section 148 for the same reasons as above.

Both agreements were made before they had any intention to separate in 2012 and were made to absolve MZ from any responsibility for the twins. The court therefore intervened for the twins’ benefit because their well-being was the court’s main focus and stated that both agreements were not valid and not binding. [16]

Conclusion

While stepparent’s child support obligations come second to biological parents, OZ had not made any efforts to pursue the biological father of the twins to provide child support. The court decided that because there were no attempts to contact the biological father, quantum or how much child support is owed by MZ would be determined at a later date. [17]

It is important to remember that the FLA does not by default make stepparents responsible for child support, but the court considers each case on its unique circumstances. Stepparent responsibility may be limited by the child’s standard of living during the relationship between the stepparent and the stepparent’s spouse and the length of time that the child lived with the stepparent. The court may also consider the nature of their relationship and whether the stepparent has stepped into a parental role for the child.

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[1] Family Law Act, SBC 2011, c 25 [FLA].

[2] Ibid, at s 146.

[3] Ibid, at s 147(5).

[4] Chartier v Chartier [1999] 1 SCR 242, at para 39.

[5] FLA, supra note 1 at s 148.

[6] Ibid, at s 148(3).

[7] OZ v MZ, 2016 BCPC 416, at para 6 [OZ v MZ].

[8] Ibid, at para 18, 21, 22.

[9] Ibid, at para 20.

[10] Ibid, at para 26.

[11] Ibid, at para 31.

[12] Ibid, at para 32 – 35.

[13] Ibid, at para 36.

[14] Ibid, at para 38.

[15] Ibid, at para 51.

[16] Ibid, at para 56.

[17] Ibid, at para 60.