The British Columbia Provincial Court decided a very unusual family law proceeding in M. (D.Z.) v. M. (S.). In this case, two teenage children were being cared for by their Uncle, Uncle D. Essentially, Uncle D, an unmarried man, was the primary provider for his entire extended family. Without being a formal caregiver to the children in early years, and having no legal obligation to provide for them, the children and their mother (Uncle D’s sister) lived with Uncle D for many years. The children’s father also lived in this house for some time, but left the home after a domestic conflict resulted in criminal charges and a subsequent separation from the mother. This separation was short lived – after this encounter, the parents reconciled and moved the children out of Uncle D’s home. This reconciliation was kept secret from Uncle D, and the children were forced to keep this secret on their parents’ behalf.
In a dramatic turn, some physical altercations occurred between the parents and children. These altercations resulted in RCMP involvement. The RCMP ultimately removed both children from parental care and placed them back in the care of Uncle D. This removal was a forcible removal triggered by family violence.
At this point, Uncle D became the children’s primary caregiver. As before, he willingly took them in and helped to get the children settled. By the hearing date, the children continued to refuse any parental involvement whatsoever in their lives. Both children were quite vocal about their desire to remain in Uncle D’s care without any involvement from their parents.
In addition to taking on additional financial responsibilities for the children, as primary caregiver, Uncle D willingly took on all the residual responsibilities that are required of primary caregivers. Since the children were forcibly removed from their care, the mother and father have spent their combined earnings on real estate and retirement savings – making no child support payments to Uncle D.
Uncle D sought arrears for guideline child support from both the mother and father, as well as child support payments on a go forward basis. Requiring both parents to pay the full guideline child support amount would provide Uncle D with an amount greater than the presumptive amount prescribed by the guidelines, but the court nonetheless ordered both parents to pay the full guideline amount. The Family Law Act requires “each parent” to provide child support, and the Court found that such an amount would not exceed the children’s needs.
In its decision, the BC Provincial Court made some interesting statements about child support and the uniquely aggravating circumstances of this case. The Court noted the deception, violence and family breakdown – all caused by the mother and father – in support of its order. The Court further noted that Uncle D graciously and openly accepted responsibility for the two children, taking on all parental responsibilities while the parents exhibited a clear pattern of avoidance of fundamental parental duties.
Although unusual, this case illustrates a unique factual matrix that ultimately enabled the Court to order more than the presumptive guideline amount.
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