Child Support by a Step-Parent

Introduction of the Child Support Guidelines
The Child Support Guidelines ("CSG") have been in force since 1997. Before the changes, there was no specific method used by the courts to determine an appropriate amount of child support. The judge hearing the case would make a decision based on all the facts of the case and judicial discretion played a big role. The amount of child support was based on the needs of the children and the ability of the parent to pay support. CSG were introduced in response to criticism that child support awards were inconsistent. CSG consist of a set of rules and tables for calculating the amount of support that a paying parent should contribute toward his or her children. They set the amount of support payable by a table amount based on the payor's income with no consideration of either the recipient's income or the actual expenses of the children. The table amounts are based on the average costs of raising a child. CSG apply to all support cases in Ontario.

Parent's Obligation to Support A Child
Parent are liable for the support of their children before and after a separation. A child who is not the natural child of one of the spouses may still be entitled to be supported by that person if the spouse treated that child as a child of their family. In these situations the application to the Court for child support should be made as soon as possible after the relationship has ended.

Child Support by a Stepparent
The CSG speak to the obligation of a stepparent and state:

Spouse in place of a parent
5. Where the spouse against whom an order for the support of a child is sought stands in the place of a parent for a child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the Court considers appropriate, having regard to these guidelines and any other parent's legal duty to support the child.

In Place of a Parent
First the Court must determine whether a stepparent "stands in the place of a parent". If the answer is no, the person will have no liability to pay child support. If the answer is yes, that person will be liable to pay child support. The onus of proving that a person has assumed the role of a parent is on the person claiming child support.

In a recent case, the Supreme Court of Canada made it clear that this determination is based on an examination of the "family unit" when it was functioning, not what happened to the relationships after separation. It would not make sense to examine the post relationship situation to determine if a person was acting as the child's parent. The Court held that the nature of the relationship must be determined by looking at all relevant factors. The Court may infer intention from actions and take into consideration that even expressed intentions may sometimes change. The Court held that a person cannot unilaterally withdraw from parental status and that a parent may seek contribution from other parents who are not paying their fair share of the childcare costs.

The relevant factors to examine include, but are not limited to, the following:

• whether the child participated in the extended family in the same way as with a biological child;
• whether the person provided financially for the child (depending on ability to pay);
• whether the person disciplined the child as a parent;
• whether the person represented to the child, the family, the world, either explicitly or implicitly, that he or she was responsible as a parent to the child;
• the nature or existence of the child's relationship with the absent biological parent (if you don't try to replace a parent, you shouldn't be held to be a parent);
• how involved was the person with the activities of the child; what activities did they do together;
• whether the person was involved in any decision-making with respect to the child;
• was the person permitted to occupy a parental role with respect to the child;
• who did the child refer to as "mother" or "father";
• the duration of the relationship and the age of the child is an important factor;
• were there disagreements between the person and the child;
• were there manifestations of the relationship such as birthday cards, acknowledgments on school records or medical records;
• what are the needs of the child and how were the needs met during the relationship.

In determining this issue, the Courts must balance competing ideas and principals. Courts do not want to force a person to ignore or be rude to a spouse's child in order to avoid a long-term support obligation. A step-parent should not be tempted to abandon a relationship that is beneficial to the person and the child solely to avoid paying child support. A person should be entitled to be civil and kind to a child without assuming a long-term obligation.

Courts should recognizes the reality of many modern relationships. That adults live together does not amount to a commitment that they will remain together. Many relationships are of short duration and it does not seem reasonable to hold that a brief spousal relationship should lead to long term financial commitment to a child at least where the adult did not change the child's lifestyle in any significant fashion. As well, a person may be more inclined to interact with a partner's child and support the child during cohabitation if he or she knows that when the relationship ends he or she will not be required to continue financial support.

It is a difficult process to draw a line in the scale of possible types conduct and relationships and to state that for any conduct and relationship falling short of the line, the step-parent does not stand in the place of a parent, and for anything over the line the step-parent does. Is it enough of a distinction to say on the one side there are cases where the stepparent's relationship with the child amounted to no more than being nice to the child to maintain his or her relationship with the child's parent and those cases where the stepparent formed a relationship with the child that was independent of the stepparent's relationship with the natural parent? Or should a step-parent be required to have a properly informed and deliberate intention to assume parental obligations for support of a child on an ongoing basis? It is quite unclear where the Courts have drawn this line. A parent-child relationship requires social, emotional, and financial interaction. In the absence of such interaction, no parent-child relationship is created and a court should not hold that a person has assumed the role of a parent.

The Amount of Support
Under the Guidelines a court must apply the guideline tables to determine the amount of support a natural parent pays unless a specific discretion section applies. However, for stepparents, a judge can award whatever support he or she thinks is fair having regard to these guidelines and any other parent's legal duty to support the child. The Court should consider all the circumstances, including the condition, means, needs and circumstances of the parties and the child. In particular, the Court may consider the relationship between the stepparent and the children, including the length of the relationship, its continuity and the extent to which the children have come to rely on the stepparent for support. Although the post separation relationship between the child and stepparent is not relevant to the determination of whether the stepparent "stands in the place of a parent" it may be a matter that goes to the amount and duration of support.

The Courts have not developed a consistent method of apportioning child support obligation among multiple parents. Some Courts view natural parents as having the primary child support obligation and conclude that a stepparent should only be called upon to pay support if the natural parent was unable to pay adequate child support or if the stepparent had increased the child's standard of living. Other Courts are not prepared to draw a distinction between natural parents and stepparents, even though section 5 of the guidelines clearly draws a distinction between a person who stands in the place of a parent for a child and the child's natural parent. There appears also to be confusion dealing with the joint and several obligations of multiple parents of a child. One approach suggested in a case is a three-step process:

• assess the support obligation of the stepparent within the context of the child support guidelines (assess the table amount plus add-ons, subject to any undue hardship adjustments);
• determine the legal obligation of any other non-custodial parent to contribute to the child's support;
• determine whether it is appropriate to reduce the stepparent's obligation by that of any other non-custodial parent.

Revision Date: Nov 21, 2001

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