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Blended families, blended incomes: second spouses and support obligations.

Child support payments can be a constant source of difficulty in family breakdown. But they can become even more of a problem when one (or both) of the former spouses adds a new spouse to the blended families. Take Ted, for example, who is divorced from Alice and paying child support, and has just married Carol (who happens to own a trendy cappuccino cafe). Can or must the courts include Carol's income with Ted's when assessing the proper amount of child support?

Provincial legislation (in Alberta) such as the Parentage and Maintenance Act (PMA), 1990, directs a court to order an amount of support "having regard to the financial resources of each of the child's parents." Sections 15 and 17 of the The Divorce Act, 1985 (Canada) identify the means, needs, and other circumstances of each spouse and of any child as factors the court is to consider when making an award of child support. The case law does not appear to distinguish in any material way between a second spouse who is a legally married spouse, or alternatively, a commonlaw spouse. There is case law that distinguishes between a more permanent relationship and one of fleeting duration, but this is a matter of common sense as much as anything else.

Interestingly, there are a number of recent cases addressing the issue of the income of a second spouse on child support that have emerged from the Maritime provinces of Newfoundland, New Brunswick and Nova Scotia. This may be in part due to the harsher economic conditions in the Maritimes, relative to other parts of Canada, particularly Ontario, Alberta and British Columbia. In any event, the case law from Alberta and other jurisdictions in Canada is clear that the income of a second spouse enters into the calculation of the payor's ability to pay child support at some level. Some cases, such as LeBlanc v. LeBlanc, a 1995 decision of the New Brunswick Court of Appeal, include the second spouse's income in determining the payor spouse's ability to pay spousal support to a first spouse. In this case, the New Brunswick Court of Appeal was very clear that the second spouse had no obligation to support the first spouse. However, the Court did observe that the second spouse's "income and assets are a factor in determining the applicant's ability to pay." See also: Harpur v. Harpur (Ont. S.C.); Langford v. Langford (Sask. Q.B.)

The leading case on child support in Alberta is the Court of Appeal decision in Levesque v. Levesque (1994). In that case, the Court of Appeal established the guidelines for calculating child support by directing courts to do the following:

(a) calculate the combined gross income of both parents;

(b) calculate a reasonable cost for the child;

(c) apportion that cost between the parents;

(d) re-calculate the assigned share to reflect tax consequences;

(e) further adjust the assigned share for any special circumstances of a parent.

On the issue of a second spouse's income, the Court of Appeal stated the following:

Unless this is income upon which the child has a lawful claim, or unless the parent who lives in that new situation asks for a reduction in an award on account of a need for parental subsistence, the new situation is irrelevant to any calculation of income. And the question of liability for child support by new members of the household is outside the scope of these reasons. Suffice it to say that unless a legally recognized parental or guardian's obligation arises as between that person and the child, no obligation of support exists on the part of the new cohabitant.

Some of the circumstances in which a child might have lawful claim on a second spouse's income arise where the second spouse acted as a parent to the child, or where the child was adopted by the second spouse. However, aside from having a lawful claim on that income, the only way in which the income of a second partner can be brought into the income stream for the purpose of calculating child support is if the payor parent is claiming a subsistence level income. In other words, according to our hypothetical case, Carol's income would probably only be included in the calculations if Ted claimed his income was barely enough for his own basic needs.

There are a number of other cases that recognize that the income of a second spouse affects the payor's ability to pay support and these cases fall into two categories. The Honourable Mr. Justice D.B. Mason in the 1993 decision of Snelgrove-Fowler v. Fowler discussed the two approaches. The first approach, identified as the Savings Approach, was described by Justice Mason as treating, ...the subsequent spouse's income as income which, by virtue of the shared living arrangement, frees up money the parent would otherwise have had to pay for groceries, rent and other basic living expenses. This saving enhances the ability of the parent to contribute to child support costs. Having found that the Savings Approach is more consistent with the wording of section 17(8) of the Divorce Act, the Court in Snelgrove Fowler, arbitrarily assigned 30% of each of the second spouses income to the parents' income. Other cases, such as Trider v. Trider (N.S.S.C.) and Charlebois v. Charlebois (N.B.Q.B.) have also assigned 30% of the second spouse's income as part of the payor spouse's income.

The second line of cases addresses whether the income of the second spouse can be calculated as part of the payor spouse's global household income, therefore affecting the payor spouse's ability to pay support. This was labelled the Household Income approach. According to this approach, the entire income of the second spouse is added to the existing household income. This total household income is then compared to the other parent's household income to assess the relative abilities of each parent to support the child.

What is the proper approach in Alberta? After the decision in Snelgrove Fowler v. Fowler was rendered, the Alberta Court of Appeal in Levesque v. Levesque stated that the income of a second spouse was relevant only where the payor spouse sought a reduction to child support on the basis of parental subsistence, or need. However, the Court of Appeal failed to identify the approach that should be taken in determining the extent to which the income of the second spouse may be taken into account. Based on the decision of Honourable Mr. Justice D.B. Mason in Snelgrove Fowler v. Fowler, therefore, it may be said that for the applications made under the Divorce Act, the Savings Approach is the applicable approach.

Disclosure of all sources of income is important. However, as a matter of practice, either the payor spouse or the recipient spouse may object to such disclosure on the basis that the information relating to the second spouse's income is not within their knowledge or their ability to produce. It is not realistic to accept that a person who is living with a new spouse (married or common-law) is either unaware of or unable to ascertain the financial circumstances of their partner. This is particularly true where the payor spouse is seeking a reduction in the current award of support.

There are two responses to this refusal to produce the financial information. First, the court can order the production of the relevant information, such as an income tax return, under Rule 209 of the Alberta Rules of Court, which provides in part that, "When a document is in possession of a third person not a party to the action and it is alleged that any party has reason to believe that the document relates to the matters in issue, and the person in whose possession it is might be compelled to produce it at trial, the court may on the application of any party direct the production of the documents..."

Secondly and alternatively, it would be appropriate to urge the court to draw an adverse inference from the failure to produce the relevant financial information. The reasoning of the British Columbia Supreme Court in McAfee v. McAfee is instructive in this situation. In this case, the payor spouse largely supported the family during the marriage, but after the break up of the marriage, he was unable to work as he had been suspended by the provincial Law Society and suffered from health problems, such as excessive weight and high blood pressure. At the relevant time, he lived with his second spouse and argued that he was unable to pay any support to his first spouse and family. The court rejected this argument and stated,

Regardless of the fact that he has no visible assets or income, Mr. McAfee enjoys a lifestyle which is vastly more affluent than that endured by plaintiff and her children. He asserts that [his second spouse] is his only source of income but he did not seek to call her as a witness at this trial. The onus was upon him, and not the plaintiff, to call [his second spouse] as a witness to verify his assertions that show that she was his sole source of income and to testify why she had been such as generous benefactor for the past 2 years. I draw an adverse inference from [this] failure to testify and conclude that he has either sufficient income or the ability to obtain sufficient funds, to pay regular monthly maintenance....

In conclusion, it is clear that in Alberta, as well as in other jurisdictions in Canada, the income of the second spouse can be taken into account when determining the appropriate award of child support. It may not be comfortable for the second spouse to realize that there are circumstances in which a court will determine that the income of a second spouse has some impact on their current partner's support obligations. However, this is the reality of a society in which even the Princess of Wales is a single mother. Borrowing on tort principles, if the second spouse becomes involved with the payor spouse, then she/he takes her/him in the financial condition in which she/he finds her/him. Blended family units are accompanied by a myriad of challenges, including financial challenges.
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Author:T. Catherine Christopher
Date:Dec 1, 1996
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