Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Stepparent Child Support, Adoption without Consent and Band Council Fiduciary Duty
Strap in for a thrilling conversation with Barrister and Solicitor, Michael Mulligan, as we navigate the tricky terrain of family law and indigenous governance. Curious about how the court defines a 'spouse' and how that affects child support? We dissect a case of a former stepfather, compelled to shoulder significant monetary responsibilities for three children, despite the fluctuating nature of his relationship with their mother. Listen as Michael enlightens us about how the BC Family Law Act interprets 'spouse', a definition that might surprise you.
Ever wondered how adoption laws work in British Columbia? We delve into a unique case of a teenager yearning for adoption by his stepmother, and the hurdles he faces due to his biological mother's refusal. To top it all, we also scrutinize a controversial case involving a Canadian First Nations band council charged with misconduct. We discuss allegations of breach of fiduciary obligations, the band's counter-argument, and the broader implications of this case for indigenous communities. This is a rollercoaster ride through some high-stakes legal cases and their wider impacts. So, tune in for some thought-provoking discussions on family, identity, and justice.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for a regular segment with Barrister and Solicitor with Mulligan Defense Lawyers. It's Legally Speaking with Michael Mulligan. Morning Michael, how are we doing?
Michael Mulligan:I'm doing great, you know. I'm just happy the phone lines haven't been clogged in my office here with, you know, bc Ferries calling to hire me to defend them against a fine to be paid to the provincial government that owns 100% of the corporation. But you know I'm sure we'll be busy with that going forward.
Adam Stirling:I'm glad that you and others could appreciate just how novel the proposal for the to do that is.
Michael Mulligan:It borders are in the absolutely bizarre. But anyways, I guess we are perhaps dealing with the D team in terms of some of these policies. But there we are.
Adam Stirling:All right, let's dive in what's on the docket this week.
Michael Mulligan:So the first case on the agenda is a case involving a application for child support Against a former stepfather is how the language of it would be and I must say, reading the case, there's nothing sort of unusual or improper with the judges analysis. The judge seems to follow the requirements of the BC Family Law Act, but the result of the BC 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 has 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 was two real estate agents who got into what was described as an on again, off again relationship. The female real estate agent had three children from a prior marriage who are now 1815 and 12. The father of the three children appears to be from the judgment. I think no better way to describe them as anything other than a deadbeat who basically hasn't paid any child support and engaged in other terrible activities, including one incident described here where he apparently doused the defendant stepfather with lighter fluid and the parent effort to light him on fire. So I think it's just some idea of who the child's biological father is.
Michael Mulligan:So the relationship here was 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. 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 act that provide that if somebody acts in the role of a parent for a period of one year and they are providing support for the children for that one year so 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's a spouse and that while living together, he did various things and then wind up getting outlined in the judgment. Things like he went on vacations with the, the acclaimant, and the children. He took the children's 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 is now long over, but he was just ordered to pay child support in the amount of $4,362 per month, a retroactive 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.
Michael Mulligan:Now, there are a couple of things about that. One other interesting point that was dealt with in the case is that this fellow is a real estate agent and he had created back in it sounds like 2017, a personal real estate corporation You've probably seen real estate agents that have that or the HRC and so they've created a company that then is receiving the fees and so on, and there are legitimate reasons for having that. With tax planning purposes. Somebody could spread out income over more than one year, for example. So there might be some reasons. There are reasons to save for retirement, so they're good and legitimate reasons to have such a thing.
Michael Mulligan: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 $44,000 in meals, including various hamburgers and so on, liquor store purchases, medical expenses, legal fees, everything you can imagine to make his income appear to be nothing. And under the guidelines and there's sort of a table or guidelines for how much child support 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 we're right at the top of the table or bottom, whatever way is organized. And that didn't lie, 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 $4,300 a month going forward for these three children.
Michael Mulligan:And so I should say that that obligation to pay support as a step parent 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 and doesn't see his kids are paying the 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 we've 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 one, I'm sure for people is just unexpected, right. It's clear when people go and say, hey, we're getting married, they have agreed to sign on together as kind of a team operation. That should be apparent to all concerned.
Michael Mulligan:But I'm sure there are many people that don't appreciate how the family law act works in BC and could wind up with very significant financial obligations unwittingly, and that in combination with how that act operates to create financial, ongoing financial obligations to support children. Where somebody does that for a period of one year and it doesn't take much, right, it's those things like well, you went skiing with the family or whatever it might be. Or here the fellow helped pay their school fees and so that was enough to tag him with the responsibility for life, because the child, children's father, just wasn't paying, and so I think it's one of those examples. You know, as 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 and 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 in a very broad weight, right, and the common law develops that and you know there are other influences on it.
Michael Mulligan:But there are some real, meaningful policy decisions that have been made and there's nothing more than that in the provincial legislation dealing with family and children, and I mean, I suppose the goal, sort of the policy justification, would be well, we're going to make sure the kids are taken care of, right, and if this fellow isn't paying for them, I guess the public would have some obligation too, or, you know, the kids wouldn't have as much as the otherwise would have.
Michael Mulligan: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 organize themselves accordingly. Right, and if people are, you know, making 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.
Adam Stirling: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. All right, we're back on the air with Legally Speaking here at CFAQ 1070. Michael Mulligan from Mulligan Defense Lawyers. Michael, next on the dock at IC. Parental consent and adoption intersecting.
Michael Mulligan:Yes, indeed, and so this next case involves 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 a matey whom, who has been raised essentially by his stepmother virtually since birth. The description from the judge was the child's mother was 18 when she gave birth to him and his head 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 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, as I said, the stepmother had cared for this child virtually his whole life. It sounds like the child has a number of challenges he's on the autism spectrum and was diagnosed with described as global development delay, 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 in section 3.1 that set so to a whole number of special criteria that apply when it's indigenous, that don't apply to other children, and the broad requirement of the act or 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 that in the best interests of the child? It's a pretty good test. Yeah, and there are a whole number of things that are listed there that one would expect, like the child's safety and physical, emotional needs and so forth. But for children who are indigenous there are a number of other special considerations, things like they describe 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's some special considerations there and that's what the mother was relying on saying well, I may tee, 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.
Michael Mulligan:Ultimately, what the judge did was order a independent report about the wishes of the child. And when asked the child, the 15 year old was asked what adoption was. He described into 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 adoption would last for, and his answer I love this one too it is forever, way past when I'm finished grade 10. And then also asked well, did you want to be adopted by right 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. So pretty good answers from the 15 year old yeah. And so the judge found no, indeed he did is consenting to it. It can consent to it.
Michael Mulligan:Now, with respect to the the issues, 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 media heritage media heritage and he had that heritage through her husband who passed away.
Michael Mulligan:That was the origin of it.
Michael Mulligan:And she found that.
Michael Mulligan:The judge found that the the perspective mother who wanted to adopt had done things, including becoming a foster parent and providing a home environment for other children who are Metis, that she'd hosted Aboriginal agencies, including music and other events, dancing and drumming.
Michael Mulligan:And to increase her knowledge, she had enrolled in university level First Nations course First Nations course. So she had certainly made real efforts in that regard. And so, given all of that and those special considerations, the judge found that it was in the best interest 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 10 years, and I think no contact are 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 a 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'd be worth letting people know about it.
Adam Stirling: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 is the term fiduciary duty mean and how does it figure into our next story.
Michael Mulligan:Great question. So the next story is a case involving a small First Nation band in British Columbia, a band under the Indian Act. 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 interest. In contrary to the language you use, the fiduciary obligation they owed to, they argued, the members of the band. Hmm, 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 their, the people they're responsible for, and so there be many examples of that be, for example, a Lawyer, when they're giving advice to a client, needs to give advice that's in the client's interest, right? 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, out of the doctor's interest, right? And in the context of a fiduciary relationship where there are 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 and the one. The idea 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 is being appealed on the issue of to whom do the? Does the band council a chief and council or a fiduciary obligation to?
Michael Mulligan:And the trial judge found that the band council oh, what 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 council, various Multiple jobs, like one person gave themselves.
Michael Mulligan:They gave one person a job of community health representative, national need 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 but could remember only one person she helped back in 1996, I see. And so for 20 years she was paid to do effectively nothing 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 Uh 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 dollars from kinder morgan To fund quote engagement, close quote Between kinder morgan and the band, and then the members of the band council Proceeded to essentially pay that money to themselves to attend meetings with kinder morgan.
Michael Mulligan:Um and so very much in their interest, yes, 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 the small band saying, hey, these people are the band council, is just doing a bunch of things to help themselves financially, not us, uh. And the judge agreed, uh, and ordered that the uh band members or the band council members, the chief and others pay this money back by including that hundred and whatever, it was $25,000. They got from Kinder Morgan, uh, and further imposed punitive damages on each of them, uh, I think the chief 50,000 and two of the other people $25 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 described was described by the judge's feeling aggrieved to this case had been brought uh to stop this practice.
Michael Mulligan:Now, the other interesting element to it, as I mentioned, is that cases being appealed and the argument on the appeal, or one of the arguments on the appeal described by the court of appeal, uh, is an argument by the members of the band council that they don't owe a fine fiduciary relationship to the members individually of the band. They want to argue that they only owe some, I guess, broad fiduciary duty to the band in some general way, rather than all the people who are members of it. It seems a bit of a hair splitter, but that's the argument they're making. Uh, the case is currently uh in the court of appeal and there was recently an application by a group called the band members alliance and advocacy association of Canada wanting to intervene to argue that, yeah, the people who were on the council low on duty to the band members right.
Michael Mulligan:Don't do this. The court of appeal found that it wasn't necessary to add that group as an intervener, uh, because the original people that brought the case were arguing exactly that. Um, 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. Uh, about whether uh bands under the Indian act, uh have a actual fiduciary obligation to the members of the band. Uh, which would translate to things like you can't just set your own salary and pay yourself to go to meetings and employ your relatives and give yourself five jobs that don't have any task associated with them.
Michael Mulligan:Uh, and so I must say it's a very disappointing case to read uh, and you know, in terms of the you know very poor conditions that you'll many First Nations people find themselves in, uh, and the very large amount of money which is 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, uh of how that money is being spent, because if the money is being spent in this way, uh, you know. However, you want to parcel who the fiduciary obligation is to boy uh. This is not uh 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 on who the obligation is owed to Uh, but you would hope that this and similar things uh are not uh more widespread.
Adam Stirling:Michael Mulligan with legally speaking on CFAQ 1070. Thank you very much, michael. Pleasure as always. Thank you so much. Have a great day, you too. Bye now.