It can be surprising to stepparents to learn that they could have a child support obligation for a stepchild in the event of a separation. However, in a society where blended families are common, this is a very prevalent issue.
The Child Support Guidelines provide that where a spouse against whom a child support order is sought stands “in the place of a parent for a child”, the amount of child support is “such an amount as the court considers appropriate”.
The leading case on a parent being found to stand in the place of a parent or, ‘in loco parentis’, is a Supreme Court of Canada case called Chartier v Chartier 1999 CanLII 707 SCC.
The court must determine the nature of the relationship. This is done by looking at a number of factors, including intention. Some of the factors defining a parental relationship include:
- 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;
- The nature or existence of the child’s relationship with the absent biological parent.
Later cases have also added considerations like, whether the child refers to the stepparent by their name or as ‘mom’ or ‘dad’ and whether the child has a financial relationship with the biological parent.
It is the moving party – the party who is alleging that the stepparent stands in the place of the parent – who has the onus of proving they are entitled to receive support from this person for the child’s benefit. In other words, it is this person who must prove that the stepparent stands in loco parentis.
If the adult is found to stand in the place of a parent, then child support is payable. As to what amount, there is no set formula as to how to calculate a stepparent’s child support obligation. However, if there is a biological parent involved who is already paying child support or should be paying child support, that is taken into account. Again, to what extent varies and can often be at the discretion of the court. There have been instances where the court has applied a ‘top up method’, meaning that the biological parent’s obligation is determined first, then the stepparent is obligated to pay an amount in consideration of that first obligation. If there is no biological parent present though, and the obligation cannot be quantified, then the stepparent may be found to have the primary child support obligation to the child. They would then pay child support until the child is no longer eligible to receive child support.
Interestingly, if these obligations are found as a result of being deemed in loco parentis, then corresponding rights arise for the stepparent. These include the right to pursue decision-making responsibility for the child and parenting time with the child.
The court emphasizes that not every adult-child relationship will be determined to be one where the stepparent stands in the place of a parent. Every case must be determined on its own facts and evidence.
This blog post was written by a former member of the Family Law team. For further information, please email family@mannlawyers.com.
