[vc_row][vc_column][vc_column_text]April 10, 2007
By Brad Smith
There are a variety of relationships in the modern family. This includes children from prior relationships. When there is a separation, does the step-parent have an obligation to pay child support for his or her non-biological children?
A court may order the step-parent to pay child support. If the parties were married, the Divorce Act states that spouses have an obligation to provide support to “any child of whom one is the parent and for whom the other stands in the place of parent”. If the parties cohabited, the Ontario Family Law Act states that a parent includes “a person who has demonstrated a settled intention to treat a child as a child of his or her family” and is obligated to provide support to the child.
The court will consider the relationship between the step-parent and the child and several factors.
- The opinion of the child
- Representations of the person
- Intention (can be expressed, inferred and can change)
- Whether the child participates in the extended family as would a biological child
- Whether the person provides financially for the child
- Whether the person disciplines the child as a parent
- Whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child
- The child’s relationship with the absent biological parent
In general, the longer the relationship, the more responsibilities the step-parent assumes, the less involved the absent biological parent, and the greater role of the step-parent as a substituted parent, the more likely the step-parent will pay child support.
It is important to note that once a step-parent has an obligation to pay child support, the step-parent cannot unilaterally withdraw from the relationship with the child and terminate the child support obligation. The Supreme Court of Canada has stated “Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult … Spouses are entitled to divorce each other, but not the children who were part of the marriage”.
If the step-parent is required to pay child support, he or she must pay pursuant to the Child Support Guidelines. In most situations, a parent will pay at least the table amount. There are limited exceptions. The obligation of a step-parent is one of those exceptions.
Section 5 of the Child Support Guidelines provides a discretion to the Court to determine the amount of child support of a step-parent having regard to the Child Support Guidelines and any other parent’s legal duty to support the child.
No clear rules have developed that provide certainty in predicting the support to be paid by a step-parent. A step-parent could voluntarily pay the full table amount under section 3 and his or her proportionate amount under section 7 of the Child Support Guidelines. But in many cases, the step-parent seeks a reduced amount of child support because of the obligation of the biological parent. In these circumstances, a majority of, but not all, court decisions offer a reduction to the step-parent.[/vc_column_text][/vc_column][/vc_row]