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McCaffrey V. Paleolog – Obligation to Support Your Children

Even here in the beautiful Fraser Valley, it can be challenging to find time to spend with your family.  Any parent knows how fast kids can change from one day to the next.  For those of us in a shared custody situation, or for those who have had to deal with a painful divorce or separation, it never seems like you can spend as much time with your children as you would like.  In British Columbia, however, the Courts have decided that your obligation to support your children financially is just as important.

On June 20, 2011, David Thomas McCaffrey and Dr. Maryla Dawn Paleolog appeared in front of the British Columbia Court of Appeal in a case known as McCaffrey v. Paleolog.  Mr. McCaffrey and Dr. Paleolog had produced two children while living together before going their separate ways in 2002.  They both went on to marry other people.

Originally, Dr. Paleolog had custody of the two children.  However, in 2005, Dr. Paleolog made the decision to go live with her new husband in Texas.  Her and Mr. McCaffrey’s children stayed in BC with Mr. McCaffrey.  Dr. Paleolog, a veterinarian, was ordered to pay child support in accordance with her income of approximately $90,000 per year.

Dr. Paleolog had two more children with her new husband while living in Texas.  Each time she had a new child, Dr. Paleolog wanted to take time off work to breast feed and care for her baby.  Each time, she asked the Court in BC to temporarily lower the support payments she owed to the children she had with Mr. McCaffrey.  Each time the court originally agreed to let her.  However, the second time this happened, Mr. McCaffrey appealed it.  He claimed that the children needed her support payments, and that Dr. Paleolog could be earning a full-time veterinarian’s wages if she chose to.  Mr. McCaffrey believed she should have to pay full child support.  The British Columbia Court of Appeal agreed.

In their decision, the Court of Appeal stated that although a new baby may warrant a change of circumstances requiring a modification of support payments, Dr. Paleolog would first have to prove she needed to stay home with the baby.  The Court quoted from Section 88 of the Family Relations Act, which covers child support obligations:

“Each parent of the child is responsible and liable for the reasonable and necessary support and maintenance of the child.”
 
According to the Court, there is a duty of a parent to work when they are able to do so.  A parent paying child support is allowed to ask for a change in the amount they pay in support when the circumstances of their life change drastically, making the old payment amount unreasonable.  Though the Court agreed that a new child in Dr. Paleolog’s household had the potential to meet that threshhold, she had the responsibility to prove that staying home was necessary for the care of the new child.  It wasn’t enough to simply tell the court that she wanted to take maternity leave to breast feed her baby.  Although her new baby may have needed her, the Court recognized that Dr. Paleolog’s two children in BC needed her in their own way as well.

McCaffrey v. Paleolog, 2011 BCCA 378, can be found on www.canlii.org.