Child Support and “Re-partnering”: When to bring the new fiancé(e) into the picture

Family Law

Child Support and “Re-partnering”: When to bring the new fiancé(e) into the picture

Family Law

New partners often bring a substantial new stream of income into a household, and it’s natural to wonder if that should be factored into a child support calculation.

The short answer is: the new partner’s income usually doesn’t matter. It’s the duty of the parent to pay child support, not the new partner, so when calculating child support in BC we only look at the income of the parents. 

The BC Court of Appeal addressed this question in Johnson v Johnson 2011 BCCA 190. In that case, the father sought to include the income of the mother’s fiancé when calculating child support. The mother and her fiancé bought a home together, and the fiancé made regular contributions to the mortgage on that home. The father argued that the mortgage payments freed the mother up to pay other expenses, and her child support payments should increase accordingly. The Court said the following:

[20] … [The mortgage contributions are] not income for the purposes of determining her Guidelines income for child support purposes any more than would be the fiancé’s income or any part of it if they were married and living together, or the income of the father’s new wife. The fiancé has no legal obligation to contribute to the support of the mother’s children, unless and until he chooses to accept that responsibility. They are the responsibility of their parents, just as the respondent’s wife’s children are the responsibility of her and their father. If the respondent chooses to add to his expenses by contributing to the support of his wife’s children, he is of course free to do so, but his own children are still entitled to be supported by him to the extent of his income…
[emphasis added]

However, there are situations where a new partner’s income may become relevant. One is where the parents share parenting time, and a new partner’s income causes a significant difference in the standard of living at each home.

In 99% of shared parenting cases, child support is calculated using a “set-off” formula. The parent with higher income will pay the parent with lower income the difference between their respective child support obligations.

However, under section 9 of the Federal Child Support Guidelines, the set-off is supposed to be just the starting point. From there, the court may order a different amount of child support after considering:

  • the added costs of shared parenting, compared to one parent having primary custody; and
  • the circumstances of each spouse and the children.

For more information, please see our blog post: Under Shared Parenting, Is a Set-off of Child Support Mandatory or Automatic? 

This analysis can be used to argue that the income of a new partner has created a significant imbalance in the standard of living at each home. 

The Court of Appeal in BPE v AE, 2016 BCCA 335 gives a useful overview of the law in this area: 

[49]        … the shared custody regime is intended to reduce discrepancies in living standards between the homes in which the children of the marriage live. In Contino at para. 51, the Court described the discretion to modify the simple set-off amount where “considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.” Bastarache J. emphasized that, to the extent possible, the Court should strive for a result that avoids noticeable discrepancies in standards of living between parental households.

[53]        Birnboim and Murynka conclude their review of the s. 9 case law with the observation that “it is now generally accepted across the provinces that a repartnered spouse should have his or her current partner taken into account in some way under s. 9”. So, for example, in Earles v. Earles2006 BCSC 221, the court was of the view that s. 9(c) provided it with “broad discretion to analyze the resources and needs” of the parents and children (at para. 27). That discretion, however, does not extend so far as to permit the court to simply attribute all household income to the payee spouse. That would be inconsistent with the approach this Court described in Johnson and would discount the biological parent’s role as the primary provider of support.

[54]        Household income is properly taken into account at the stage when the court considers the effect of payment of table amounts of child support on comparative living standards, as in Corsie v. Taylor2006 BCSC 528, where the payor was ordered to pay more than the set-off amount because the substantial income of her second spouse resulted in her financial situation being “considerably better” than that of the children’s father. Similarly, in L.A.B. v. M.L.B., 2012 BCSC 1066, the court found there was a significant (and growing) divergence in the standards of living between the father’s and mother’s households. Attempting “to attenuate the discrepancies between the two homes and yet remain alive to the realities of the financial situation” Barrow J. ordered the payor to pay two-thirds of the set-off amount despite approximately equal household incomes.

The income brought in by the new partner must make a big difference to the parties’ relative living situations. In Corsie v. Taylor2006 BCSC 528, the “substantial” income of the new partner resulted in the children’s living situation being “considerably better”. In L.A.B. v. M.L.B., 2012 BCSC 1066, there was a “significant” divergence in the standards of living between the parents. 

What does “substantial” and “significant” mean? It will depend on the circumstances. In Corsie v Taylor, the mother had an annual income of $64,000 and the father had an income of $43,000. The mother then re-married someone who had an income of $105,000 per year, more than doubling her household income. In the result, the court ordered the mother to pay $450 per month, rather than the $176 she would be required to pay under a simple set-off. However, there were a number of other factors, such as the father’s debt, which also influenced the Court’s decision.

When in doubt use a set-off, but consider consulting a lawyer if you or your former spouse enters into a relationship that will cause a dramatic change in the living circumstances of your children. It could result in a change to the child support you receive or pay.

For more information on child support or any other family law issue, please contact any member of our Family Group.

This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.