The basic principles of child support with respect to a biological parent’s obligation to pay are relatively straight-forward: the non-custodial parent is obligated to pay child support to the custodial parent in an amount determined by a formula. Issues of custody (shared, sole, etc.) and issues surrounding the financial needs and means of the parties are often complex, however, the obligation to pay is rarely in dispute. Contrast this with the situation where a party seeks to obtain a child support payment from a step-parent. When and why does a step-parent have a child support obligation? The Relevant Legislation One must start this analysis by looking at the definition of “child” in the relevant legislation. In Ontario, the definition of “child” in s. 1(1) of the Family Law Act reads as follows:
“child” includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody; (“enfant”)
In the Divorce Act, “child of the marriage” is defined in Section 2 as follows:
2(1) In this Act, … child of the marriage means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; (enfant à charge) … Child of the marriage (2) 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.
In a 1999 decision of the Supreme Court of Canada (Chartier v. Chartier), the Court examined the meaning of the term “child of the marriage” and concluded that:
“A person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent. The court must look to the nature of the relationship to determine if a person in fact does stand in the place of a parent to a child.”
Settled Intention – Case Examples Where a Step-Parent Was Obligated to Pay Child Support Both the Ontario Court of Justice and the Supreme Court of British Columbia recently released decisions in which a step-parent was ordered to pay child support. Roy v. Roy: In this 2017 decision of the B.C. Supreme Court, Mrs. Roy sought an increase in child support for her two daughters. The eldest daughter, B, aged 16, was not the biological child of Mr. Roy. Mr. Roy opposed the application, arguing that he no longer had a relationship with B, and that her biological father should be responsible for her support. In finding that Mr. Roy was not entitled to terminate his child support obligation to B, the Court highlighted the following:
- At the time Mr. And Mrs. Roy entered into a Consent Order for child support, Mr. Roy was quite content to meet his responsibility for both children. Had he wanted to seek contribution from the biological father of B, then would have been the time to do so. He did not;
- B fit the definition of “child of the marriage” found in subsection 2(2)(b) of the Divorce Act; and
- The burden of the breakdown in the relationship between Mr. Roy and B could not be placed on B. Minor children still have to be supported, regardless of any difficulties in the relationship between parent and child.
Although the Court ordered Mr. Roy to continue to pay child support for B, it also ordered B’s biological father to contribute to her support. Mr. Roy would be entitled to deduct the amount of the biological father’s contribution from his own obligation. Wallace v. Kaulback: In this decision of the Ontario Court of Justice released in late 2016, the Court was asked to determine whether Mr. Wallace had a settled intention to treat Mrs. Kaulback’s eldest child, J, as a member of his family, such that he had an ongoing child support obligation to her. The Court found that it was only when Mrs. Kaulback sought child support that Mr. Wallace unilaterally terminated the father/daughter bond. Prior to that time:
- The child referred to Mr. Wallace as “Daddy” in a Christmas card;
- The child’s biological father never contacted her in Ontario; she only had short visits with him when her mother and grandmother saw extended family in Nova Scotia;
- The biological father never paid child support;
- Mr. Wallace referred to J as “his first born”;
- Mr. Wallace treated J the same way he treated his own 2 biological children; they were a family with 3 children until the time of the separation; and
- Mr. Wallace had contact with J initially after the separation.
Similar to the Roy decision, the Court in Wallace emphasized clarity of the law in this area – “…unilateral termination post-separation will not impact upon the issue of w[h]ether during the relationship a person demonstrated a settled intention to treat a child as a member of his family.” Mr. Wallace was ordered to pay child support for all three children. Lessons Learned In situations where a step-parent has treated a step-child as a member of his or her own family and stands in the place of a parent to that child, he or she most likely will have an obligation to contribute to that child’s support. This is true even if the relationship between step-parent and step-child has deteriorated at some point before or after the separation of the parties. If you would like more information about child support or any other family law issue, please contact the experienced lawyers at Gelman & Associates online or at (416) 736-0200 or 1-844-742-0200 for a confidential initial consultation.