Step-parents may be responsible for child support in a divorce

By Tony Poland, LegalMatters Staff • If you marry someone with children from another relationship are you responsible for child support if you get divorced? You might be, says Toronto family lawyer A. Julia P. Tremain. 

Tremain, a partner with Waddell Phillips Professional Corporation, says there are instances when a person may be required to pay support for a child even though there is no biological connection. And that applies whether a couple is married or in a common-law relationship, she says.

“It will always come down to what is in the best interests of the child,” Tremain tells LegalMattersCanada.ca. “If children are in need, a judge is always going to ensure they are looked after rather than have a family struggling because there isn’t enough money.”

The nature of the relationship is an important factor in determining whether a step-parent is responsible for paying child support, she explains.

“The is a legal term known as in loco parentis, which means in the place of a parent,” Tremain says. “Let’s say a step-parent comes into the picture when a child is two. The biological father is no longer involved and the stepfather is raising the child as his own. However, the couple separates when the child is 10. In that case, the mother would be able to make quite a compelling case that the stepfather has been acting as a father to the child and should therefore be liable for child support.”

Blended families have become more common

The Department of Justice (DoJ) notes “spousal and family relationships of varying permanence, and blended families, have become more common in Canadian society.”

“Once a step-parent relationship has been established, the obligations of that step-parent towards the children are similar to those of the natural parents” the DoJ states.

The Divorce Act defines a child of the marriage ­– a child eligible to receive child support – as a person of two spouses or former spouses, and includes “any child of whom one is the parent and for whom the other stands in the place of a parent.”

However, that doesn’t necessarily mean someone would automatically be required to pay support for their step-children when a relationship ends, Tremain says.

“For example, the step-parent ends the relationship and the biological father is already paying child support,” she says. “It would be difficult to then say the step-parent is responsible for child support. But it is not impossible because if the natural parent stops paying child support and the step-parent was found to be acting as a parent, they could be liable.” 

Step-parent’s contribution would be considered

A court would look at how much a step-parent contributes to the step-child’s welfare, says Tremain. If a step-parent is paying for food, clothes, extra-curricular activities, vacations or school, they would likely be expected to pay support, she says.

Tremain says the Supreme Court of Canada (SCC) provides guidance on the legal role of step-parents in Chartier v. Chartier, which held that “the obligation to support a child arises as soon as that child is determined to be ‘a child of the marriage.’”

The SCC was told the stepfather in the case “played an active role in caring for and was a father‑figure for his wife’s daughter from a previous relationship.”  The girl saw him “as her father in every way.  He was the only father she knew,” court heard.

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“To allow him to withdraw from that relationship, as long as he does it before the petition for divorce, is unacceptable,” Justice Michel Bastarache, writing for a unanimous SCC, stated.

The court stated that “a person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent.” 

When determining whether a person stands in the place of a parent, courts must take into account “all factors relevant to that determination, viewed objectively,” Justice Bastarache wrote.

‘The court must also infer intention from actions’

 “The court must determine the nature of the relationship by looking at a number of factors, among which is intention,” he wrote. “The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change.  The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family.”

Justice Bastarache stated further that the relevant factors in defining the parental relationship include, but are not limited to:

• whether the child participates in the extended family in the same way as would a biological child; 
• whether the person provides financially for the child (depending on ability to pay); 
• 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; and
• the nature or existence of the child’s relationship with the absent biological parent.  

Same obligations would apply

“Once it is shown that the child is to be considered, in fact, a ‘child of the marriage,’ the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act,” wrote Justice Bastarache. “The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under … the Divorce Act.”

Tremain says those entering into a long-term relationship with someone who has children need to be aware of the legal implications.

“What many people may not consider is the importance of having a marriage contract or cohabitation agreement when a parent is remarrying or living common law and bringing their child into the relationship,” she says. “An agreement that sets out whether a person will act in loco parentis and defines their rights and obligations can help prevent future disputes.

“It is always helpful to get legal advice to at least have an understanding of the legal landscape and what to expect if the relationship doesn’t go as planned,” Tremain adds.