Step Parent’s Obligation to Pay Child Support
If you are step-parent and are going through a divorce in Ontario or are separating you should know the law regarding a step-parent’s obligation to pay child support. As a family lawyer I have seen a lack of awareness on part of the step-parent about their potential child support obligation for their step child. This article will provide a brief overview of how family law treats such relationships and how a step-parent’s role with respect to their step child may make them liable for child support.
Children of the Marriage
In general, child support is payable for all “children of the marriage”. While a layperson may assume that the definition of a “child of the marriage” is straight forward, the Divorce Act defines it as follows:
(2) CHILD OF THE MARRIAGE — For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes:
(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in the place of a parent.
Many people are surprised to learn that the law includes non-biological children as children of the marriage if the in loco parentis test is met. Essentially, if the step-parent stood in place of a parent for the step-child, the step-child may be considered to be a child of the marriage, resulting in the step-parent’s obligation to pay child support.
The Leading Case in the Supreme Court of Canada
The leading case in Canada regarding a step-parent’s obligation to pay child support was decided in 1999 by the Supreme Court of Canada in Chartier v. Chartier. In Chartier the step-father was very much involved in caring for his step-daughter. He was essentially a father figure to her. The step-father had even discussed the possibility of adopting his step-daughter with her mother. He did not proceed with the adoption; however, both parties had falsely amended the step-daughter’s birth certificate showing the step-father as the biological father.
By the time the case got to trial, the step-father had repudiated his parental relationship with his step-daughter. On this basis he tried arguing that he should not be held responsible for any child support payments. However, the Supreme Court of Canada disagreed.
The Supreme Court in Chartier stated that a unilateral withdrawal by a person from a relationship where one stood in place of a person will not be recognized. Rather, the court will have to look at the nature of the relationship to see if one does in fact stand in place of a parent to a child.
In reviewing the in loco parentis test, whether a person stood in place of a parent, the court mentioned the following principles:
(1) The test for determining whether a parental relationship existed is determined as of the time when the parties functioned as a family unit.
(2) While the opinion of the child regarding their step-parent is important, the test is not determined exclusively from the perspective of the child.
(3) All relevant factors in determining whether a person stood in place of a parent must be viewed objectively.
(4) The court will be determining the nature of the relationship by looking at a number of factors, including intention. Intention may be inferred from actions.
(5) Some relevant factors in determining the parental relationship are:
- The child’s participation in the extended family in the same way a biological child would;
- Whether the step-parent provided financial support to the child;
- Whether the step-parent disciplined the child as a parent;
- Whether the step-parent represented the child to their family and outsiders that he/she was responsible for the child as a parent of the child;
- The nature/existence of the child’s relationship with their biological parent.
There have been many cases after Chartier and it is important to note that the test for in loco parentis has been used quite liberally by the courts. For example, a court in Nova Scotia found a step-mother to have stood in place of a parent for her kind treatment towards her step-children. Even though she had no intention of adopting her step-children, the court in reviewing the relevant factors in determining the parental relationship found that an intention to stand in place of a parent existed and the test had been met.
For more information about a step-parent’s obligation to pay child support, or about obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.
Other Articles to Read
Divorce and Separation
Family Justice Services
Child Custody and Access
Division or Equalization of Family Property
Treatment of a Matrimonial Home
Enforcement of Support Payments