Who Has An Obligation to Support the Child?
One of the first questions we often hear from parents, and particularly stepparents, is “who has an obligation to pay child support?”
In Canada, every biological parent or parent of an adopted child has an obligation to support their child. Additionally, any person who stands in the place of a parent or who has demonstrated a settled intention to treat a child as a member of his or her family may also be considered “a parent” for the purposes of determining support. This means that stepparents, a spouse in a common law relationship involving a child brought into the relationship, or another person who stands in the place of parent may also have support obligations upon the breakdown of the relationship.
Section 2(2) of the Divorce Act defines a “child of the marriage” as: a) any child for whom both spouses stand in the place of parents; and b) any child of whom one spouse is the parent and for whom the other stands in the place of parent. As such, when determining whether a step-parents has stood in the place of parent, the court will consider the following factors:
- The opinion of the child regarding the relationship with the step-parent;
- The step-parent’s representations to the child;
- The nature of the relationship between the child and step-parent and intent of the step-parent, having regard to the following:
- whether the child participates in the extended family in the same way as a biological child would;
- whether the step-parent provides for the child financially;
- whether the step-parent disciplines the child;
- whether the step-parent represents to the child, the family, or external parties, either explicitly or implicitly, that he or she is responsible for the child as a parent; and
- the nature of the child’s relationship with the non-custodial biological parent.
It is important to note that a person who “stands in the place of parent” or is in loco parentis, may not have the same support obligation as a biological parent. Under section 5 of the Child Support Guidelines, a court has the discretion to order an amount of support that is different than the Table amount having regard to the circumstances and whether a biological parent is also paying support.
Courts have taken different approaches in determining the amount of child support payable by a person who stands in the place of parent. While in some instances the courts will simply deduct the biological parent’s support obligation from the step-parent’s support obligation to determine the amount of support, this is not always the case.
It is more likely that a court will order a step-parent to pay closer to the full table amount in the following circumstances:
- where a step-parent and child had and/or continue to have a close relationship;
- if the child enjoyed a high standard of living when the step-parent resided with the child;
- if the step-parent has the financial means to pay support;
- if the non-custodial biological parent has only a remote relationship with the child;
- if the non-custodial biological parent has not consistently paid child support;
- if the step-parent has agreed to pay a higher amount of support in a Separation Agreement; or
- if there is a long-standing relationship between the step-parent and child.