Families come in all shapes and sizes. Today, blended families are common, and many people find themselves becoming step-parents to their new spouse’s children.
Whether they are married or in a common-law relationship, step-parents may be surprised to learn that upon separation they may be treated as a “parent”, legally, even if they never married their step-child’s biological parent or adopted the child. This means they may be obligated to pay child support.
Did the step-parent “stand in place of a parent”?
The law is concerned with the best interest of the child. The courts do not want to leave a child without the support they need and may have come to rely upon simply because the child’s parent and step-parent’s relationship has broken down.
Where couples were unmarried, Ontario’s Family Law Act provides that a step-parent may be considered a parent and therefore may be required to pay child support if that person “demonstrated a settled intention to treat a child as a child of his or her family”.
Similarly, where couples are married or divorced, the Federal Divorce Act provides that a step-parent may be considered a parent and therefore may be required to pay child support if the step-parent “stands in the place of a parent” to the child.
Although the terminology is slightly different depending on whether the parties were married or not, the court considers the same factors when trying to determine whether the step-parent will have a child support obligation for the child. These factors were set out by the Supreme Court of Canada in Chartier v Chartier,  1 SCR 242 and include the following;
- whether the child participated in the step-parent’s extended family in the same way as a biological child,
- whether the step-parent provided financially for the child,
- whether the step-parent disciplined the child as a parent,
- whether the step-parent represented to the child, the family, the world, either explicitly or implicitly, that he or she was responsible as a parent to the child, and,
- the nature or existence of the child’s relationship with the absent biological parent.
The list is not exhaustive, and there is no one factor that will determine the outcome.
Many step-parents may find themselves asking why should they be obligated to pay child support to their former spouse rather than the child’s biological parent, who may or may not be absent in the child’s life? While the court will consider a biological parent’s involvement in the child’s life and their obligation to pay support as part of the analysis, the step-parent’s former spouse is allowed to pursue child support from both the biological parent and the step-parent. In some cases, the biological parent may be paying support, but this does not absolve the step-parent from also paying support, especially if the child has become accustomed to a lifestyle that cannot be maintained with the support of the biological parent alone.
Section 5 of the Child Support Guidelines provides that where child support is sought against a person who is found to stand in place of a parent to a child, the court has discretion to order an amount of child support that “the court considers appropriate, having regard to these guidelines and any other parent’s legal duty to support the child.” As such, a step-parent could be ordered to pay a set-off amount to “top up” what the biological parent is paying, or they could be ordered to pay full child support regardless of what the biological parent may pay (or not pay, if they are absent from the child’s life).
It is important to seek legal advice if you find yourself in this situation because there is no set formula for determining a step-parent’s child support obligation and it very much depends on the circumstances of each case.
What about parenting issues?
Of course, a child support obligation is not the only issue that comes up in these circumstances. Step-parents often want to know what kind of relationship they can continue to have with the children they have come to love. A step-parent’s role in a child’s life rarely ends simply because the step-parent’s relationship with their spouse has ended.
While the rights of step-parents may be different than biological parents, the law in Ontario does recognize the rights of step-parents. In rare cases, step-parents may even be awarded primary care and decision-making responsibility for a child over a biological parent. Where a step-parent is found to have a child support obligation, it is likely the step-parent has a strong claim for parenting time with the child as well, if that is something the step-parent chooses to seek.
Do you require assistance with a family law related issue?
Madison Goodacre is a lawyer in Siskinds’ Family Law Department. If you are going through a separation and need assistance with a child support issue, or if you need assistance with any other family law matter, please contact Madison by email.