IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Onderwater v. Onderwater,
	2025 BCSC 134

Date: 20250115

Docket: E67494

Registry: New Westminster

Between:

Melissa May Onderwater

Claimant

And

Robert Benjamin Onderwater

Respondent

Before: The Honourable Justice Lamb

Oral Reasons for Judgment

In Chambers

The Claimant, appearing in person:	M. Onderwater
The Respondent, appearing in person:	R. Onderwater
Place and Date of Hearing:	New Westminster, B.C. January 8, 2025
Place and Date of Judgment:	New Westminster, B.C. January 15, 2025

 

[1]            THE COURT (by videoconference):  The claimant, Melissa Onderwater, applies for an interim order for child support and special expenses for her biological daughter, Brooke. The respondent, Robert Onderwater, is not Brooke's biological father. He says this application is premature and should not proceed until the current child support payable by Brooke's biological father, Michael Vanderlinde, is determined. Further, Mr. Onderwater says that Ms. Onderwater has failed to establish that Brooke's standard of living has fallen since the parties separated.

[2]            For the reasons that follow, I am not prepared to order that Mr. Onderwater is required to pay child support or a share of extraordinary expenses, because the evidence filed by Ms. Onderwater does not allow me to determine what amount, if any, Mr. Onderwater should pay. The evidence before the court does not establish that Brooke's biological parents are not able to financially support her.

Background

[3]            By way of brief background, the parties were married on March 25, 2016, and separated September 13, 2022. This was the second marriage for both parties and each party had children from a previous relationship. The only child who still fits the definition of child of the marriage is 16‑year‑old Brooke.

[4]            Ms. Onderwater applies for child support pursuant to both the Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.) and the Family Law Act, S.B.C. 2011, c. 25. A child support order under either legislation would be made in accordance with the Federal Child Support Guidelines, SOR/97-175 [Guidelines].

[5]            One of the objectives of the Guidelines is "to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation": Guidelines, s. 1(a).

[6]            Section 5 of the Guidelines gives the court discretion to set child support payable by a spouse who stands in place of a parent for a child that is a stepparent, "having regard to [the] Guidelines and any other parent's legal duty to support the child."

[7]            On this interim application, Ms. Onderwater has provided some evidence that Mr. Onderwater stood in the place of parent and provided some financial support to Brooke during the parties' relationship. I note that our Court of Appeal has said that sharing household expenses is a contribution to the support of a child: Smart v. Wiewior, [1990] B.C.J. No. 1991, 1990 CanLII 1673 (B.C.C.A.).

[8]            In the case at bar there is evidence that school tuition for the parties' children was paid from the parties' joint account. In addition, Mr. Onderwater voluntarily paid $1,950 in child support and $1,700 in school fees after separation, suggesting he recognizes his obligation to support Brooke. I would be prepared to find, for purposes of this interim application, that Mr. Onderwater stood in place of a parent for Brooke.

[9]            The more significant issue, in my view, is the question of what amount of child support Mr. Onderwater should pay, particularly where Brooke's biological parents have an obligation to support her financially.

[10]         In H.(U.V.) v. H.(M.W.), 2008 BCCA 17, our Court of Appeal made it clear that the court should consider the support available from the child's biological parents when determining child support payable by a stepparent:

[38]      As should be clear from the foregoing, although the broad principles of law relating to the existence of child support obligations on the part of stepparents are clear, Canadian courts have differed as to how those obligations, as stated in the Guidelines, are to be determined in practice.  I read s. 5 as requiring that the legal duties of support of the "other parent(s)" – in this case, the natural parents – be considered when support is sought from a stepparent.  If such duties are to be considered, it seems obvious that they must be quantified if possible.  For this purpose, the "other parent(s)" should be before the court, or other evidence satisfactory to the court relating to that parent's status should be adduced, as occurred in Dutrisac and Kobe (but not in Chartier.)  Unless that other parent is a stepparent, s. 3 requires that his or her support be the applicable table amount unless custody is being shared, the child is over age 19, or one of the other 'discretionary' provisions applies . . .  At this stage, the process is not one of "balancing" or even "apportionment": it appears that the natural parent's obligation can be determined only in accordance with the non-discretionary "presumptive rule" of s. 3.

[Emphasis in original]

[11]         In this case, the evidence shows that there is a child support order from 2012 requiring Mr. Vanderlinde to pay child support based on Guidelines income of $51,082. That same order requires Mr. Vanderlinde to pay 75% of ongoing s. 7 expenses. According to a printout from British Columbia Family Maintenance Agency for the period October 1, 2022, to October 31, 2024, Mr. Vanderlinde paid child support of $774 and $345 for child or court ordered expenses from October 2022 to May 2023. Child support was reduced to $479.74 per month in June 2024, when the claimant's older child turned 19.

[12]         Mr. Vanderlinde resumed paying child support in July 2024 and currently pays $824.74 per month for child support and s. 7 expenses, according to Ms. Onderwater.

[13]         What is missing, however, is evidence about Mr. Vanderlinde's current Guidelines income, which is required to determine his current child support and s. 7 expense obligation. Ms. Onderwater deposed that she is currently attending sessions with a family justice counsellor and Mr. Vanderlinde to update his child support. As suggested by the Court of Appeal in H.(U.V.), in order to assess Mr. Onderwater's child support obligation either Mr. Vanderlinde should be before this Court or there should be sufficient evidence regarding his income to allow this court to determine what Mr. Vanderlinde's child support obligation is.

[14]         Given the discretion the court has under s. 5 of the Guidelines, it is also important that the court have the necessary information about Ms. Onderwater's income and expenses on any application seeking child support from Mr. Onderwater.

[15]         The parties have apparently filed F8 financial statements, but the F8 financial statements were not part of the application record. Ms. Onderwater attached a copy of her most recent paystub to her affidavit filed in support of this application, but there was no evidence before the court regarding any other sources of income, she mentioned her sister now lives with her and pays rent, and no evidence about her expenses.

[16]         In his affidavit, Mr. Onderwater identified that Ms. Onderwater received funds from a church. It is not clear whether those funds were included in the income reported in her F8 financial statement.

[17]         In his oral submissions, Mr. Onderwater noted that Ms. Onderwater works less than full‑time hours, as indicated in her paystub. Although the onus would be on him to show that income should be imputed pursuant to the Guidelines, the court may be inclined to impute income to Ms. Onderwater in the absence of evidence as to why she works less than full‑time hours.

[18]         Finally, the other evidence missing on this application is any evidence regarding Brooke's standard of living and, in particular, whether her standard of living has dropped since Ms. Onderwater and Mr. Onderwater have separated.

[19]         As the court said in Lamoureux v. Hedquist, 2023 BCSC 1539, a case cited in Mr. Onderwater's application response:

[299]    The "children-first" perspective of the Guidelines dictates that primacy should be given to P.G.'s standard of living: if P.G.'s standard of living during the Relationship was higher than what the claimant and Mr. Gibson can now provide her with, the respondent should pay support to provide that higher standard. The Court has a wide discretion, but must focus the inquiry on P.G.'s needs . . . 

[20]         There was no evidence to suggest that Brooke's standard of living was higher during the parties' relationship than the standard of living her biological parents can now provide.

[21]         In summary, I accept that Ms. Onderwater has tendered evidence that would bring Mr. Onderwater into the category of a spouse who stands in place of a parent for Brooke, as set out in s. 5 of the Guidelines. However, Ms. Onderwater has failed to prove the amount, if any, of child support payable by Mr. Onderwater. As a result, I am dismissing the relief sought in paragraphs 1 and 2 of Part 1 of the notice of application filed November 26, 2024, with leave granted to Ms. Onderwater to bring another application for child support and s. 7 expenses on better evidence or with Mr. Vanderlinde's participation, or both.

Costs

[22]         In terms of costs, Mr. Onderwater has been substantially successful on this application. His application response referred to s. 147(5) of the Family Law Act, which codifies the principle from H.(U.V.) that a stepparent's support obligation is secondary to a biological parent's support obligation. His application response refers to a case which quotes from H.(U.V.) and Lamoureux, which talks about the child's standard of living. For reasons unexplained, Mr. Onderwater failed to deliver a complete copy of his affidavit to Ms. Onderwater, but it is his application response that identified the legal test and should have alerted Ms. Onderwater to the gaps in the evidence.

[23]         I recognize that both parties represent themselves, but that in itself is no reason to deprive Mr. Onderwater of his costs. As a result, Mr. Onderwater shall have the costs of a half day for preparation and attendance at a contested application, which is $1,000, based on Appendix B to the Supreme Court Family Rules. These costs are payable within three months.

[24]         Those are my reasons.

“Lamb J.”