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Digest of the Week — No Contracting Out of Child Support

L. (R.P.) v. P. (K.A.) |
2015 CarswellNB 285 |
New Brunswick Court of Queen's Bench

Family law | Support | Child support under federal and provincial guidelines | Application of guidelines | Who is a parent

Same-sex marriage — Parties were same-sex couple who began relationship in 2003 and married in 2006 — Applicant became pregnant with twin girls through artificial insemination by mutual friend who had no parental role — Evidence established parties presented as couple expecting their first child prior to twins' birth — Twins were born in November 2006 and respondent left applicant and children in May 2007 — Parties entered into custody and child support agreement in July 2007 — At that time, respondent's income was $5,573.00 so no child support was payable — In October 2007, applicant began cohabiting with new partner — Parties entered second agreement in October 2008 where it was agreed that respondent could remove her name from children's birth certificates and be released from child support obligation — Parties divorced in 2009, and at that time respondent was student, and did not earn sufficient income to trigger child support — Order for corollary relief dealt only with custody, granting sole custody to applicant — Respondent now earned $51,509.00 — Applicant brought motion for retroactive and ongoing child support and s. 7 expenses — Issue for determination was whether respondent was parent to twins — There were no circumstances to rebut conclusion that twins were children of marriage and agreement made between parties could not deny children of marriage right to child support owed in accordance with law — Neither party stood in place of parent — While only applicant was biological mother, by force of law, twins were both children of two former spouses — Accordingly, s. 15.1(1) and (3) of Divorce Act applied and child support was payable by respondent — Federal Child Support Guidelines was to be used to determine amount of child support to be paid — Respondent was one of twins' parents and was responsible for paying table support — Respondent was responsible for paying child support in amount of $734 monthly effective June 1, 2015.
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