Stepparent Child Support, Adoption without Consent and Band Council Fiduciary Duty

 

Our recent podcast episode dove deep into the intricate and complex world of family law and indigenous governance. We had the privilege of having a captivating conversation with Barrister and Solicitor, Michael Mulligan.

One of the primary topics of discussion was the intricate definition of ‘spouse’ under the BC Family Law Act. This definition carries significant implications, particularly in relation to child support cases. A case was presented of a former stepfather who was obligated to shoulder considerable financial responsibilities for three children. This obligation arose from the fluctuating nature of his relationship with the children’s mother, and the court’s interpretation of him as a ‘spouse’.

This case raises important questions about the financial implications for individuals who meet the legal definition of a spouse. The concept of a spouse under the Family Law Act extends beyond married couples, including individuals who live together continuously for at least two years. This broad definition can inadvertently impose lifelong financial obligations, as exemplified by the case discussed.

The podcast episode also explored the realm of adoption laws within the indigenous communities of British Columbia. A case was dissected involving a teenager seeking adoption by his stepmother, an aspiration met with significant hurdles due to his biological mother’s refusal. The adoption process, particularly in the context of indigenous rights, requires the delicate balancing of several interests. This includes the child’s best interest, the prospective parent’s rights, and the preservation of the child’s indigenous heritage.

An important facet of indigenous governance also came under scrutiny in this episode – the fiduciary obligations of band councils. The controversy was stirred by a case involving a Canadian First Nations band council accused of misconduct. The band council was alleged to have breached its fiduciary obligations by favoring its own financial interests over those of the band members.

This case raises critical questions about the proper governance within indigenous communities. It highlights the importance of transparency, accountability, and adherence to fiduciary duties by band councils. It also underscores the importance of upholding the broader interests of the community over personal gain.

The episode ended on a note of reflection on the broader implications of these high-stakes legal cases. These discussions are not only thought-provoking but also underscore the inherent complexities within family law and indigenous governance. They demonstrate the fine balance that must be struck between individual rights, societal interests, and cultural preservation. It is this balance that forms the bedrock of justice within any legal system.

As our society continues to evolve and grapple with these intricate legalities, conversations like these are crucial. They serve to foster understanding, encourage dialogue, and ultimately, inform more equitable legal frameworks.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Transcript of the show:

 

Legally Speaking Oct 5 2023

Adam Stirling [00:00:00] It’s time for our regular segment with Barrister and Solicitor with Mulligan Defence Lawyers. It’s Legally Speaking with Michael Mulligan. Morning, Michael. How are you doing?

Michael T. Mulligan [00:00:08] I’m doing great. You know, I’m just happy the phone lines haven’t been clogged at my office here with, you know, B.C. ferries calling to hire me to defend them against a fine to be paid to a provincial government that owns 100% of the corporation. But, you know, I’m sure we’ll be busy with that going forward.

Adam Stirling [00:00:26] I’m glad that you and others could appreciate just how novel the proposal for to do that is.

Michael T. Mulligan [00:00:33] It borders on the absolutely bizarre. But Lisa, I guess we are perhaps dealing with the B-team in terms of some of these policies. But there we.

Adam Stirling [00:00:44] All right, let’s dive in. What’s on the docket this week?

Michael T. Mulligan [00:00:48] So the first case on the agenda is a case involving an application for child support against a former stepfather. Here’s how the language of it would be. And I must say, reading the case, there’s nothing sort of unusual or improper with the judge’s analysis. The judge seems to follow the requirements of the B.C. Family Law Act. But the result of the B.C. Family Law Act is one that I think might not quite be in accordance with what most people would think would be a fair outcome. And it’s something I think people should be aware of because it is potentially very large financial implications for people who wind up in a circumstance like the man in this case. The background of it is that there were two real estate agents who got into what’s described as an on again off again relationship. The female real estate agent had three children from a prior marriage who were now 18, 15 and 12. The father of the three children appears to be from the judgement. I think no better way to describe him as anything other than a deadbeat who basically doesn’t pay child support.

Adam Stirling [00:02:04] hmm.

Michael T. Mulligan [00:02:04] And engaged in other terrible activities, including one incident described here where he apparently dosed the defendant stepfather with lighter fluid in an apparent effort to light him on fire. So, it gives you some idea of who the the child’s biological father is.

Adam Stirling [00:02:23] Wow.

Michael T. Mulligan [00:02:23] So the relationship here is described as an on again off again relationship that went over a period of seven years. But clearly, for much of that, the couple, the two real estate agents weren’t living together, but there was a stretch of at least two and a half years where the two did reside together. And that is important for how the definition of spouses work under the Family Law Act. And what that act does is it provides that if you live with another person continuously for at least two years, you meet the definition of spouse, which has a number of implications, first of all, in terms of division of property, but also it engages other sections of that, that act that provide that if somebody acts in the role of a parent for a period of one year.

Adam Stirling [00:03:18] mm hmm.

Michael T. Mulligan [00:03:19] And they are providing support for the children for that one year, you have to be both that two-year period and then for one of those years some support for the children. You can then wind up being responsible under that act for paying child support for the children forever. And that’s what happened here. The judge found that the two individuals lived together for at least two and a half years, tick he is a spouse and that well living together. He did various things that have been wind up getting into the judgement, things like he went on vacations with the claimant and the children. He took the children skiing and celebrated their birthdays and then at some point he wound up helping pay for their private school tuition. Well, that’s support for the children. And because the children’s biological father is clearly a deadbeat, it meant that under the act he then was found to be responsible for paying child support indefinitely. The relationship’s now long over, but he was just ordered to pay child support in the amount of $4,362 per month, retroactive to another $91,000 in child support. And he has also been ordered to continue to share paying half of the children’s private school fees indefinitely until they’re done. Now, there are a couple of things about that. Or one other interesting point that was dealt with in the case is that this fellow was a real estate agent and he had created back in, it sounds like 2017 a personal Real Estate Corp. You’ve probably seen real estate agents that have that sort of.

Adam Stirling [00:05:03] Yeah.

Michael T. Mulligan [00:05:03] Sot of RC.

Adam Stirling [00:05:04] Yeah.

Michael T. Mulligan [00:05:05] And so they’ve created a company, the kind of is receiving the fees and so on. And there are legitimate reasons for having that for tax planning purposes. Somebody could spread out, you know, income over more than one year, for example. Right. So, there might be some reasons or reasons to save for retirement. So, there are good and legitimate reasons to have such a thing. But it looks like what he was, in fact doing was just charging virtually all manner of personal expenses to that real estate corporation in order to make it look like he had no income. So, he was trying to write off all of his mortgage payments. All of his household expenses were $44,000 for meals, including various hamburgers and so on, and liquor store purchase purchases and medical expenses and legal fees. Everything you can imagine to make his income appear to be nothing. Right. And under the guidelines and there’s sort of a table or guidelines for how much child support or should be paid, you would generally the starting point would be go across the table, find the person’s income, go down the column. That’s how much you owe, right, to try to reduce litigation. Now, his argument would, I guess, be, well, I didn’t have any income. So, I guess the rate at the top of the table or bottom, whatever way it is organised and that didn’t fly, and the judge did. Again, what you would expect a judge to do is to look beyond that and to essentially back out the personal expenses that were listed as deductions to reduce tax liability. And so that’s how the judge came to the income figure that resulted in this order to pay $4300 a month going forward for these three children. And so, I should say that that obligation to pay support as a stepparent is described in the act as being a secondary obligation to the person who is the parent of the child. Right. And so had the parent of the, had the father of these children, not been a kind of deadbeat, that throws lighter fluid on people. It doesn’t see his kids or pay any child support. Then this fellow would not have wound up with a lifetime obligation potentially to support the children on the basis of this on again, off again relationship and taking the kids skiing. But people should be aware of those things. First of all, that it was just policy decisions under this act of the decision was made to treat people who live in a marriage like relationship for two years as essentially being married, right for the purpose of things like division of property. And that what I’m sure for people is just unexpected, right, you know, it’s clear when people go and say, hey, we’re getting married, they get agreed to sign on together. It’s kind of a team operation. It should be apparent to all concerned, but I’m sure there are many people that don’t appreciate how the Family Law Act works in B.C. and could wind up with very significant financial obligations unwittingly. And that in combination with how that Act operates to create ongoing financial obligations to support children, where somebody does that for a period of one year and it doesn’t take much, as those things like, well, you went skiing with the family or whatever it might be or here the fellow helped pay their school fees.

Adam Stirling [00:08:25] Yeah.

Michael T. Mulligan [00:08:26] And so that was enough to tag him with the responsibility for life because the children’s father just wasn’t paying. And so I think it’s one of those examples, you know, we talked about before, most of the time a legal result is sort of the result that most people, if they thought carefully about a circumstance, would say, yeah, that seems about what I would expect, right as it should be. Right. Legal results are generally in accordance with sort of community values and a very broad way. And common law develops that, and you know, there are other influences on it, but there are some real meaningful policy decisions that have been made, and they’re nothing more than that in the provincial legislation dealing with family and children. And I mean, I suppose the goal, the sort of policy justification would be, well, we’re going to make sure the kids are taken care of. Right. And if the if this fellow isn’t paying for them, I guess the public would have some obligation to or you know, the kids wouldn’t have as much as they otherwise would have. But we’ve made these decisions in terms of how we’re going to treat people as spouses and how we’re going to continue to have child support obligations in circumstances which may not accord with what somebody might think would happen. And so that’s why I thought it was an important case to talk about, just so people can be aware of those things and organise themselves accordingly. Right. And if people are, you know, making an informed eyes open decision to get into a relationship and knowing what the long term implications of that should be, people are adults. Fair enough. Right. But some of these things may be sort of unexpected. And so that’s why I thought it was important to let people know about it.

Adam Stirling [00:10:10] Absolutely. Always good to know about the latest developments and implications. Let’s take our first break, Legally Speaking. We’ll continue right after this.

[00:10:18] COMMERCIAL.

Adam Stirling [00:10:18] All right. We’re back on the air with Legally Speaking here at CFAX 1070, Michael Mulligan from Mulligan Defence Lawyers. Michael, Next on the docket, I see parental consent and adoption intersecting.

Michael T. Mulligan [00:10:29] Yes, indeed. And so, this next case involves also the operation of the Adoption Act in British Columbia and in particular the requirements for consent for an adoption and the background to it, it involves a 15 year old boy who’s is Metis, whom who has been raised essentially by his stepmother virtually since birth. The description from the judge was the child’s mother was eighteen when she gave birth to him and has had, it was described as limited involvement in his life up to this point. The connection between the two was that the person looking to adopt was the stepmother of the daughter who had the child at age 18, and that the daughter who had the child at age 18. Her father was married to the stepmother, but he passed away a short time ago, sadly. So that’s the connection. And the case involved after that period of time. Then, as I said, the stepmother had cared for this child virtually his whole life. Sounds like the child has a number of challenges. He’s on the autism spectrum and was diagnosed with a described as global development delay.

Adam Stirling [00:11:51] hmm.

Michael T. Mulligan [00:11:51] but nonetheless appears to be doing well in terms of going to school and so forth. And the the Act, the Adoption Act provides that if you’re looking to adopt a child who is over the age of 12, you need to have consent from both the child and the child’s parents. And in this case, the mother of the child did not consent. She didn’t want the child to be formally adopted by the stepmother. And there was some speculation as to why that might be so involving entitlement to her father’s estate. But there wasn’t clear evidence of that. But her stated reason for objecting and this was the other interesting element of the case, was that the stepmother was not Metis. And under the Adoption Act, there are special provisions of Section 3.1 that sets out a whole number of special criteria that apply when a child is Indigenous that don’t apply to other children.

Adam Stirling [00:12:55] Hmm.

Michael T. Mulligan [00:12:56] And the broad requirement of the act to the broad decision making for a judge when they’re deciding are they going to grant an adoption and are they going to grant an adoption where a parent is not consenting to it? Is it in the best interests of the child? It’s a pretty good test.

Adam Stirling [00:13:12] Yeah.

Michael T. Mulligan [00:13:12] And there are a whole number of things that are listed there that one would expect, like the child safety and physical and emotional needs and so forth. But for children who are Indigenous, there are a number of other special considerations, things like the great cultural continuity, transmission of language, cultures, practices, customs, traditions, ceremonies, knowledge of the child’s indigenous community, preservation of the child’s connection to the indigenous community. And so, there are some special considerations there, and that’s what the mother was relying on, saying, well, I met my stepmother is not and you ought not to grant the adoption for that reason. Now, the other interesting element here is because the child was on the autism spectrum, there was an argument made by the mother that, well, he can’t really consent. That argument didn’t get. Ultimately, what the judge did was order an independent report about the wishes of the child. And when asked the child, the 15 year old was asked what adoption was he described in these terms. “Adoption is loving, caring and helping me out when I need something”. It’s a pretty good definition. And then was asked how long an adoption would last for. And his answer I love this one too, “it is forever. Way passed when Ifinished grade 10”. It is a good anwser. And then also asked, what did you want to be adopted by, the person who’d raised him. And the answer was Yes, of course. I think it’s a good idea. And I want to be here forever. She likes to call me Silly Goose. And that is how I know she loves me.

Adam Stirling [00:14:46] hmm.

Michael T. Mulligan [00:14:46] So pretty good answers from the 15 year old.

Adam Stirling [00:14:48] Yeah.

Michael T. Mulligan [00:14:49] And so the judge found. No, indeed he did, consenting to it. He can consent to it. Now, with respect to the the issue, those special considerations that would apply when a child is Indigenous, the judge looked at various efforts that the mother had made to allow the child to be exposed to his Metis heritage. Metis heritage. And here that is through her husband who passed away. That was the origin of it. And she found that the judge found that the the respective mother who wanted to adopt had done things, including becoming a foster parent and providing a home environment for other children who were Metis, that she had hosted Aboriginal agencies, including music and other events, dancing and drumming, and to increase her knowledge, she had enrolled in university level First Nations Courses, First Nations course. So, she had certainly made real efforts in that regard. And so given all of that and thosespecial considerations, the judge found that it was in the best interests of the child to grant the adoption, even over the objection of the mother, who had had very described as very little contact with the child over the past ten years. And I think no contact or virtually none since 2021. And so that’s how the Adoption Act works. That’s the kind of consent that’s required. And those are the special considerations that apply when you’re dealing with an Indigenous child. And again, the overarching consideration is what’s in the best interest of the child. And that’s what was found to be the case here. And so that’s why I thought it would be worth letting people know about it.

Adam Stirling [00:16:35] The next story has a term that I hear quite often, but I’m not even sure I could give you a comprehensive definition of what does the term fiduciary duty mean and how does that figure into our next story?

Michael T. Mulligan [00:16:46] Great question. So the next story is a case involving a small first Nation Band in British Columbia, Banned under the Indian Act, and it was a claim made by some members of the band that the people who were on the band council were making financial decisions that were in their own best interests and contrary to the language you use, the fiduciary obligation they owed to, they are the members of the band.

Adam Stirling [00:17:18] hmm.

Michael T. Mulligan [00:17:18] And the idea when you have a fiduciary relationship is that the person who is the fiduciary has an obligation to make decisions that are not in their best interest or to help them out, but to help the people they’re responsible for. And so, there’d be many examples of that. Be for example, a lawyer, when they’re giving advice to a client, needs to give advice that is in the client’s interest, right?

Adam Stirling [00:17:42] yes.

Michael T. Mulligan [00:17:42] Not somehow in the lawyer’s interest or if a doctor is providing you advice. Right. They need to give you medical advice that’s in your interest, not in the doctor’s interest. Right. And in the context of a fiduciary relationship where their financial requirements or financial obligations, there’s also a requirement that when you’re making decisions as a fiduciary, that you’re not doing them in sort of a self-dealing way to financially benefit yourself.

Adam Stirling [00:18:14] hmm.

Michael T. Mulligan [00:18:14] And one of the ideas there is you shouldn’t be making decisions that allow you to profit from the decisions that you’re supposed to be making to help others. And so that’s the context of the case. And it’s also interesting because the case was being appealed on the issue of to whom do, does the band council, a Chief and council owe a fiduciary obligation to? And the trial judge found that the band council ordered a fiduciary obligation to the members of the band and found in this case that that had been breached in a serious way by doing things like giving each other the members of the band councill various multiple jobs. Like one person gave themself, they gave one person a job of community health representative, national native of alcohol and drug abuse, program worker, health director, band manager, bookkeeper and social worker, and then paid them for all of those various tasks, even though, for example, this person had been paid for more than 20 years to act as a alcohol and drug abuse program worker,.

Adam Stirling [00:19:28] mmhmm.

Michael T. Mulligan [00:19:28] But could remember only one person she helped back in 1996.

Adam Stirling [00:19:33] ohh okay, I see.

Michael T. Mulligan [00:19:34] And so for 20 years, she was paid to do effectively nothing.

Adam Stirling [00:19:39] hmm.

Michael T. Mulligan [00:19:39] And given all of these multiple jobs, and then in addition to giving each other all of these jobs and setting the salaries for them, the members of the band council were also paying themselves to attend meetings like setting amounts of money to go to a meeting. And one of the things that took place was that they received, the band did, $125,000 from Kinder Morgan to fund, ” engagement”, between Kinder Morgan and the band. And then the members of the band council proceeded to essentially pay that money themselves to attend meetings with Kinder Morgan.

Adam Stirling [00:20:22] hmm.

Michael T. Mulligan [00:20:22] And so very much in their interest.

Adam Stirling [00:20:25] Yes.

Michael T. Mulligan [00:20:25] Not so much in the interest of all the other people who were band members. Right. And so, the case was brought by some members of this small band saying, hey, these people and council are just doing a bunch of things to help themselves financially, not us. And the judge agreed and ordered that the band members or the band council members, the chief and others pay this money back, including the $100 and whatever it was, $25,000 they got from Kinder Morgan and further imposed punitive damages on each of them. I think the Chief $50,000 to the other people, $25,00 and $10,000, the judge found, of course, it was very difficult to try to unwind all of this because it had been going on for just so long. Right. And the band members of the band council describe, it was described by the judges feeling aggrieved that this case had been brought to stop this practice. Now, the other interesting element to it, as I mentioned, is the case was being appealed and the argument on the appeal or one of the arguments on the appeal described by the Court of Appeal is an argument by the members of the Band Council that they don’t owe a fiduciary relationship to the members individually of the band. They want to argue that they only owed some, I guess, broad fiduciary duty to the band in some general way.

Adam Stirling [00:21:49] hmm.

Michael T. Mulligan [00:21:49] Rather than all the people who are members of it. It seems a bit of a hair splitter.

Adam Stirling [00:21:53] Yeah.

Michael T. Mulligan [00:21:53] But that’s the argument they’re making. The case is currently in the Court of Appeal and there was recently an application by a group called the Band Members Alliance, an advocacy association of Canada, wanting to intervene, to argue that, yeah, these people who work for the Council owed a duty to the band members, don’t do this. The Court of Appeal found that it wasn’t necessary to add that group as an intervener because the original people that brought the case were arguing exactly that. And so, we don’t have a final decision by the Court of Appeal, but it’s clear what the argument is going to be there. And so we’ll need to wait and see what the Court of Appeal has to say about whether bands under the Indian Act have actual fiduciary obligation to the members of the band, which would translate to things like you can’t just set your own salary and pay yourself to go to meetings and they employ your relatives and give yourself five jobs that don’t have any task associated with them. And so, I must say it’s a very disappointing case to read. And, you know, in terms of the know very poor conditions that many first nations people find themselves in.

Adam Stirling [00:23:06] Yes.

Michael T. Mulligan [00:23:07] And the very large amount of money which was spent trying to ameliorate those things, it’s many billions and billions of dollars. And you just have to hope that this case isn’t indicative of how that money is being spent, because that money is being spent in this way. You know, however you want a pars out who the fiduciary obligation is to, boy, this is not the kind of governance that anyone would hope is going on. So, we’ll need to wait and see what the final word is from the Court of Appeal and who the obligation is owed to. But you would hope that this and similar things are not more widespread.

Adam Stirling [00:23:46] Michael Mulligan with Legally Speaking on CFAX 1070. Thank you very much, Michael. Pleasure as always.

Michael T. Mulligan [00:23:51] Thank you so much. Have a great day.

Adam Stirling [00:23:53] You too. Bye now.

Automatically Transcribed on October 13, 2023 – MULLIGAN DEFENCE LAWYERS