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.
Do Step Parents Stand in Place of a Parent’?
One thinks of the child’s legal parents when discussing divorce and child custody or support issues. However, what happens when a person gets married to someone with a child/children and develops a strong bond with the child/children? Does a stepparent have to pay child support in Ontario? Is there a duty on stepparents to support a child? Did you know that, even if you don’t formally marry your partner or adopt their child, you could still be considered a “parent” if they have a child?
Unofficial “parenthood” or being a stepparent to a stepchild normally does not come up until a couple separates or gets divorced. If a stepparent is considered a “parent” by the courts after a relationship has ended, that stepparent may be responsible for paying child support for the child of their ex-partner. A stepparent cannot unilaterally terminate the relationship with a stepchild, especially if doing this will leave the child without support and in a situation of utter dependence. This is according to a recent ruling by the Ontario Superior Court of Justice.
Do stepparents automatically have parental responsibility? In recent years, spousal or family relationships of varying permanence, as well as blended families, have become more prevalent in Canada. A person who serves as a parent to their spouse’s children could be legally obligated to support the stepchildren after the marriage, or common-law relationship with their spouse ends.
The federal Divorce Act currently describes a child of the marriage (a child who qualifies for child support) as a child of two current or former spouses, and it includes “any child of whom one partner is the biological parent and for whom the other partner stands in the place of a stepparent.”
What kind of relationship, then, makes a stepparent responsible for child support? Whether the stepparent was married to the child’s parent or they were only dating will determine how the relationship is described.
Unmarried couples must abide by the Family Law Act of Ontario, which states that a stepparent could be obliged to pay child support if they have shown a settled intention to regard/treat the child as one of their own.
The Divorce Act comes in when a married couple divorces. The issue of whether the stepparent served as the child’s parent is what determines whether a person could be obligated to pay child support.
Ontario courts consider several factors when determining whether a stepparent still has parental responsibility when a couple divorces:
- Whether the stepparent provided financial support to the child
- Whether the child interacted with the stepparent’s extended family in the same manner a biological child would
- If the stepparent used to discipline the stepchild
- Whether the child maintained a relationship with their biological parent
- Whether the stepparent demonstrated implicitly that they had a responsibility as the parent to the child
When considering the factors that define the relationship between a stepparent and a stepchild, the court could also use discretion. Usually, the courts determine these factors on a case-to-case basis.
Once a stepparent-child relationship has been proven, a stepparent has an obligation similar to that of a biological parent. Federal, provincial, and territorial laws do not explicitly outline how to calculate child support when there are stepparents. For instance, courts are currently allowed to set a child support amount they deem suitable under the Federal Child Support Guidelines. Judges must consider the amount specified in the child support tables as well as the legal obligation of any parent other than the stepparent to provide for the child when making this judgment.
How to Apply for Child Support in Ontario as a Step Parent
In Ontario, stepparents are not automatically obligated to make child support payments. Another person, usually the child’s biological parent, must first make a request for child support from the stepparent. The burden of proof for these applications rests with the applicant, who must show that the previous stepparent had an established relationship with the stepchild, which makes the stepparent responsible for paying child support after divorce. If the applicant is unable to prove this obligation, the court will not enforce it.
How Much Of Parent Support Are Stepparents Required to Pay?
In the face of divorce where a stepchild is involved, most people often wonder, do you have to pay child support for stepchildren in Ontario? Do you have to pay child support if the child is not yours? If the court establishes that a stepparent has displayed a settled intention to consider the child as a member of their family or acted as the child’s parent, the next considerations are whether the stepparent should be ordered to make child support payments and, if yes, how much must be provided and for how long.
The Federal Child Support Guidelines are often used to determine the child support amount due depending on the parent’s income. The Ontario Child Support Guidelines hold common-law couples to similar requirements. However, the court could exercise its discretion to set a child support amount that the court deems appropriate, with due regard to the guidelines and other parents’ legal obligation to support the child.
Therefore, this implies that the court may require a stepparent to pay less child support than a biological parent or that the stepparent’s support obligation may be adjusted against the biological parent’s support responsibilities. Although the court typically follows this strategy, there are times when it may require a stepparent to pay the full amount of child support for a stepchild, especially if the child’s biological parent is not present. Conversely, the court can rule that a stepparent is not required to provide any child support.
The courts have acknowledged that there is a lack of clarity or uniformity as to the strategy to adopt when assessing the stepparents’ child support duties. As a result, it can be challenging to determine the amount and duration of child support that a stepparent should pay for a stepchild.
If you need guidance on child support payments for a stepchild, you should contact an experienced child support lawyer. Lawyers understand all the laws pertaining to child support, including the sudden changes in government laws.
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.
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