The Step-Parent’s Obligation for Child Support
It is not in the best interests of children that step-parents or natural parents be permitted to abandon their children, and it is their best interests that should govern. — Kerans J.A., Theriault v. Theriault
Over the past 20 years, there has been a proliferation of single parent families, common law relationships and second marriages. A number of legal issues emerge as a result of these changes. One of those issues is the financial obligation of a step-parent toward his or her partner’s children.
The General Rules
Pursuant to both the Divorce Act and the Family Law Act, parents have an obligation to financially support their children. This obligation lasts so long as the children are minors or remain dependent on their parents because they are in school or are disabled.
In the event that the parents’ relationship breaks down, the Child Support Guidelines provide Tables that set out the amount of financial support that the non-custodial parent must pay.
So where do step-parents fit into this picture? With respect to this issue there are two questions that must be answered. The first is “has the step-parent incurred an obligation to provide support” and the second is “what is the amount of that support.” The first question was recently answered by the Supreme Court of Canada.
Under the 1Divorce Act, a child of the marriage is entitled to financial support from his or her parents. Under this Act, a parent includes both a biological parent as well as a person who stands in the place of a parent.
In order to determine whether a person stands in the place of a parent, one must
objectively look at the facts of each in-
dividual situation. To assist in this determination, the Supreme Court has set out a number of factors that should be taken into consideration.
– What was the nature of the relationship during the time that the family functioned as a unit?
– What was the adult’s intention with respect to the relationship with the child?
– Did the child participate in the adult’s extended family in the same way as a biological child would have?
– Did the adult provide the child with financial support?
– Did the adult discipline the child as a parent?
Supreme Court of Canada
– Did the adult represent to the child, the family and the world that he or she is responsible as a parent to the child?
o What is the existence of the child’s relationship with the non-custodial biological parent?
– Did the adult claim the child as a dependent for tax purposes?
The Court indicated that the actual fact of forming a new family is a key factor in these cases. It also indicated that while the opinion of the child is relevant it is only one consideration. More persuasive of whether the adult stands in the place of a parent, is the representation by the step-parent, regardless of the child’s response.
The determination of whether the adult stands in the place of a parent must be made at the time, the family functioned
as a unit. The fact that there may have been a deterioration in the adult/child relationship since the breakdown of the marriage, is not relevant.
Once the adult is found to stand in the place of a parent, the child is considered a child of the marriage. As a result, under the Divorce Act, the obligations of the step-parent toward that child are the same as they would be to a biological child. Further, once the relationship has been established, that status cannot unilaterally be terminated by the adult.
The Amount of Support
Although a test has been defined for determining whether a step-parent is liable for child support, calculating the amount remains a topic of debate. According to the Child Support Guidelines, it is such amount as the court considers appropriate, having regard to these guidelines and any other parent’s legal duty to support the child. While the Tables are to be used to calculate the exact amount to be paid by the child’s natural parent, they are merely reference tools with respect to step-parents.
This has resulted in much inconsistency throughout the country. Some courts have deducted from the amount of the step-parent’s support obligation, the amount of the natural parent’s obligation. Some courts have apportioned the obligation amongst the parties, while others have ordered the full guideline amount to be paid by both the natural parent and the step-parent.
If you are embarking on a relationship with someone who has children from a previous relationship, you should consider seeking legal advice. Nicola Savin and Terry Macli would be happy to assist you.
Although the Supreme Court of Canada focused on support pursuant to the Divorce Act, it is likely that the courts will follow the same process for support applications brought under the Family Law Act.
Please visit our Family Law specialty site at www.familylawtoronto.caShare