In contrast to the traditional nuclear family model of the past, there is no set prototype of a Canadian family in 2020. Today, families come in all shapes and sizes, and as separation and divorce have become more common; so have families of different kinds. In 2016, according to the census data released by Statistics Canada, almost 10% of Canadian children between the ages of 0 to 14 were living with step-families. Also known as blended families, step-families are households in which one or both partners have started a new family after concluding their first marriage. What happens when these new families go through yet another separation? Do step-parents have any obligations and/or rights to a genetically unrelated child? For the purpose of this article, the terms “step-parent” and “non-biological parent” are used interchangeably in indicating that the parent does not have a genetic connection to the child in question.
According to section 5 of the Federal Child Support Guidelines, if someone ‘stands in the place of a parent for a child,’ also known as the doctrine of loco parentis, the amount of a child support order is, in respect of that person, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.’ The language of the provision implies that the person does not necessarily have to biologically related to the child.
This is because Canadian family law when dealing with legal issues that involve children, places paramountcy on the best interests of the child, rather than the biological parenthood or legal status of children. The Canadian justice system wants the children to be as minimally impacted by the negative consequences of a divorce as possible; this means that they want to encourage the adults who were in the child’s life during the marriage to remain even after the parents separate. In the words of Justice Bastarache in Chartier, the courts aim to recognize ‘that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.’
Who is a ‘child of the marriage’ in blended families?
Sections 2(1) and 2(2) of the Divorce Act state the following:
“… ‘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(a) is under the age of majority and who has not withdrawn from their charge, or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, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life
(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 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.”
These provisions do not mandate that the child must be biologically related to any or both of the parents to be considered a child of the marriage. In other words, child support is not a legal obligation that is limited to the biological parents of a child.
Who ‘stands in the place of a parent’?
The decision for Chartier v. Chartier, [1998] S.C.J. No. 79 at the Supreme Court of Canada, is the hallmark case that established the doctrine of loco parentis, namely ‘standing in the place of a parent.’ Writing for the court, Justice Bastarache stated that all relevant factors must be objectively taken into account when determining whether a person stands in the place of a parent. The key question is whether the step-parent had the intention to treat the child as his or her own. The following is a non-exclusive list of the factors that can be examined in answering this question:
- Whether the child participates in the extended family in the same way as would a biological child;
- Whether the step-parent financially provides for the child;
- Whether the step-parent disciplines the child as a parent;
- Whether the step-parent represents to the child, the family, the world – either explicitly or implicitly – that he or she is responsible as a parent to the child; and,
- The nature or existence of the child’s relationship with the absent biological parent.
These intentions do not have to be formally expressed by the step-parent, and neither are spoken intentions an absolute indicator of the step-parent’s will to treat the child as his or her own, as people’s relationships often change. The courts infer these intentions from the actions of the step-parent.
If the court concludes that the step-parent intended to treat the child as his or her own, ‘the obligations of the step-parent towards [the child] are the same as those relative to a child born of the marriage concerning the application of the Divorce Act,’ and also earns certain rights, such as the right to apply for custody or access of the child.
When is the material time in determining loco parentis?
The material time in question is when the family was functioning as a unit. In other words, the court will consider the words and behaviours of the step-parent when the family was intact. The breakdown of the step-parent/child relationship after the couple’s separation is “not a relevant factor in determining whether or not a person stands in the place of a parent for the purpose of the Divorce Act.” This means that, for example, the fact that a step-parent has not seen or spoken with the child since the separation does not have a bearing on the question of loco parentis. Once a person is found to stand in place of a parent, that relationship cannot be unilaterally withdrawn by the adult.
How is the quantum of child support determined in the context of loco parentis?
If the court finds that a person is standing in the place of a parent, this would mean that the child in subject has at least three parents (two birth parents and one step-parent). How is child support apportioned to each of these people? Justice Aston in MacArthur v. Demers, [1998] O.J. No. 5868, the court has judicial discretion to review the evidence before her to determine what amount should be appropriately assigned to each parent of the child in the context of Section 5 of the Federal Child Support Guidelines.
Firstly, the guideline amount payable by the support payor should be determined. This involves consideration of the table amount, any special and extraordinary expenses, and adjustments for the reason of undue hardship.
Secondly, the court must determine the ‘legal duty’ of any other non-custodial parent (for example, the biological father) to support the child financially.
Lastly, if it is determined that the other non-custodial parent has a legal duty to support the child, then the court considers whether it is ‘appropriate’ to reduce the support payor’s guideline amount.
There is no uniform approach to determining how much a parent should pay in child support when he or she is not a natural or adoptive parent of a child. They have employed various techniques including but not limited to apportionment, percentages, and top-ups, with a “lack of clarity or consistency as to the appropriate approach to take” (Boivin v. Smith, 2013 ONCJ 426). The court should not merely subtract the obligation of the biological parent from the step-parent’s responsibility. Still, it should exercise broad discretion and take the totality of the circumstances rather than adopting a formulaic approach.
I have been financially supporting a child. A recent paternity test determined that I am not the biological father of the child. Am I entitled to a repayment of financial support?
In the case of Day v. Weir, 2014 ONSC 5975, Justice Gordon wrote that if the only issue was paternity – and if it was established that the support payor was not the father of the child – then there ‘was no basis to require payment of child support,’ which ‘necessitates putting the parties back to the position they would have been if the order had not been granted’ through repayment.
However, the critical issue here was that the non-biological father continued to have a relationship with the child for several years despite his suspicion of the child not being genetically related to him. Although Mr. Weir noticed that the child did not look like him as he grew older, he continued to have contact with the child after separation with Ms. Day and faithfully paid child support while not taking part in decision-making for the child. The court also found Mr. Weir’s comment that “he always considered [the child] to be his son until the D.N.A. paternity test said otherwise” as an essential factor. The court concluded that while there was not a strong relationship, there was ‘sufficient contact and involvement, along with payment of child support and belief in being the child’s father, to conclude Mr. Weir had the settled intention to treat [the child] as his son.’ Therefore, the court rejected his claim for repayment.
This decision indicates that even though a parent is scientifically determined as not genetically related to the child if the court determines that the parent ‘stood in the place of a parent,’ the child support paid will not be returned to the non-biological parent, particularly if the parent had doubts about his relatedness to the child but chose not to pursue the truth for a very long time.
Does the biological parent have a duty to pay child support even when s/he is out of the picture?
In Truong v. Truong, 2012 ONSC 3455, Justice Bielby wrote that natural parents are obliged to pay child support pursuant to and under the guideline table amounts and that this legal obligation continues as long as their child remains dependent. The natural father, in this case, was making an income in excess of $100,000 at the time he sought access to the child. Yet, the mother made a decision not to pursue child support from him and instead chose to seek financial help from the child’s step-father after separation. The court took consideration of the ‘legal obligation of the natural parent.’ It concluded that the step-father ‘should not be required to pay full guideline support just because the [mother] has chosen not to pursue [the child’s] biological parent’.
What if the biological parent cannot be found, and therefore rendering the custodial parent unable to seek child support from him or her? This may mean that the step-parent might have to entirely assume the burden of financial support for the child as a non-custodial parent. In Bernard v. Edwin, 2016, ONSC 1240, the biological father was not a Canadian citizen whom the applicant’s mother met while they were in university. She ‘had no idea where he was living today.’ The court found that there is no evidence as to the income or financial contribution of the biological father, and his whereabouts are unknown. The child’s standard of living took priority, and considering the history of a strong relationship between the child and the step-father, the court ordered the step-father to pay the full table amount for child support.
Closing Remarks
Starting a new serious relationship – and subsequently, a new family – after a separation is an important decision. New families come with new sets of joys as well as obligations. Although most of us wish for our current relationships to be our last, sometimes life takes us on unexpected journeys, and we find ourselves parting ways with our loved ones yet again. It is, therefore, essential to have an open and honest discussion with your partner at the onset of the relationship about any familial and financial expectations you have of each other, particularly when you are starting a family for the second time. It is important to remember that becoming a child’s parent, regardless of your genetic connection, is a significant decision with impacts that last for many years.
This blog post is not intended to be legal advice and was written for general education purposes. Consult with a legal professional at Kain & Ball to find out about your rights and responsibilities for child support as a step-parent. The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.