If you are a step parent in Ontario and are going through a divorce or separating, you should be aware of the law for step-parents’ responsibilities to pay child support. I’ve noticed a lack of awareness among step parents about their potential child support obligation for their step kid as a family lawyer. This essay will go over how family law treats these
Children of the Marriage
In general, child support is paid for every “child of the marriage.” While a layperson may believe that the term “child of the marriage” is self-explanatory, it is defined as follows in the Divorce Act:
(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 shocked to discover that children born outside of the marriage who met the in loco parentis test are considered family members under the law. The step-parent’s responsibility to pay child support is essentially based on whether or not the step-child was treated as a son or daughter by him (or her).
The Leading Case in the Supreme Court of Canada
In 1999, the Supreme Court of Canada ruled in Chartier v. Chartier that a step-parent’s duty to pay child support may not be avoided through undue influence or fraud. In Chartier, the step-father was quite active in caring for his step-daughter. She had a close relationship with him as a father figure. The step-father had even spoken about adopting his step-daughter with her mother, although he did not go through with it. Both parties mistakenly changed the steps towards ensuring adequate parental time after determining joint custody was in their best interests.
By the time the case came to court, the step-father had disavowed his parental relationship with his step-daughter. He attempted to persuade the court that he should not be held responsible for any child support payments on this basis. The Supreme Court of Canada, on the other hand, disagreed.
The Supreme Court in Chartier stated that a single individual’s withdrawal from a relationship where one was put in the place of a person would not be recognized. Rather, the court will have to examine the nature of the relationship to see if one is really standing in place of a parent to a child.
The court described the following principles when examining the in loco parentis test, whether a person stood in place of a parent:
(1)The test for determining whether a parental relationship existed at the time the parties operated as a family unit is when they were in that relationship.
(2) The opinion of the child regarding their step-parent is critical, but the test isn’t solely dependent on the youngster’s viewpoint.
(3) It is critical to evaluate each factor on an objective basis in order to determine whether a person stood in the shoes of a parent.
(4) The relationship between the parties will be defined by the court, based on a number of elements, including purpose. Actions may reveal an intention.
(5)The following are a few things to consider when determining the parental relationship:
- 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.
After Chartier, there have been a slew of cases in which the test for in loco parentis has been applied quite freely by the courts. For example, a court in Nova Scotia ruled that a step-mother had stood in place of a parent for her kind treatment of her step-children. Even though she had no desire to adopt her step-children, the court found that an intention to stand in place of a parent existed and that the test had been satisfied despite the fact that she had no objective to do so.
Please contact DivorceLawyers.ca for more information about a step-parent’s duty to pay child support, or to begin the process of splitting up.
NOTICE AND DISCLAIMER: The information on this website is for educational purposes only and should not be taken as legal advice. If you require legal assistance regarding your specific situation, it is strongly advised that you contact a lawyer.
