What child support obligations do step-parents have to their step-children? Can a person, not the biological parent of a child, who assumes a parental role to a partner’s child, abandon that role after the breakdown of the relationship?
Statutory law
In Ontario, child support can be requested either through an application brought under the Divorce Act, which applies to divorces, or an application brought under the Family law Act, which applies to both married and unmarried couples.
Under s. 1(1) of Ontario’s Family Law Act, a “child” is defined to include a person whom a parent has demonstrated a settled intention to treat as a child of his or her family. A “parent” is similarly defined as including a person who has demonstrated a settled intention to treat a child as a child of his or her family.
Under Federal Divorce Act, a “child of the marriage” is defined to include “any child of whom one is the parent and for whom the other stands in place of a parent”.
Case Law under the Divorce Act
In Chartier v. Chartier, the Supreme Court of Canada considered the issue of a step-parent’s obligation to provide support for a non-biological child under the Divorce Act. [1]
The spouses in that case were involved in a relationship for a period of three years. The wife had a daughter from a previous relationship and the spouses also had a biological child born during their marriage. While the spouses lived together, the husband played an active role in caring for both children and was a father figure to his step-daughter. There were discussions of the husband adopting the step-child, but no adoption was obtained. The wife commenced divorce proceedings in 1995 and included in her claim the request for a declaration that the husband stood in place of a parent to his step-daughter, and thus was obliged to pay child support. The husband contested this claim.
The issue before the Supreme Court in Chartier was under what circumstances, if any, can an adult who is or has been in the place of a parent pursuant to the Divorce Act, withdraw from that position. In examining this issue, the Supreme Court reviewed the law underlying the assumption by step-parents of parental responsibilities to their step-child.
The Supreme Court held that once a person is found to stand in place of a parent, that relationship cannot be unilaterally withdrawn by the adult. In making this determination, the court looked to the aim of the Divorce Act:
The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes 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.
The Honourable Justice Bastarache, writing for the court, looked at the relevant factors in determining the existence of and nature of a parental relationship:[2]
The Court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. 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, i.e., a child of the marriage. 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; the nature or existence of the child's relationship with the absent biological parent.
The Supreme Court of Canada also held that the existence of the parental relationship must be determined as of the time the family functioned as a unit and that the breakdown of the parent/child relationship after separation is not a relevant factor in determining whether or not a person is a “parent” for the purposes of his or her support obligations to the child.
Case Law under the Family Law Act
Although Chartier was decided under the Divorce Act, the courts in Ontario found there is no substantive difference in the test under the Family Law Act, as to whether a person has demonstrated a settled intention to treat a child as a child of his or her family, and the test under the Divorce Act, as to whether a person stands in the place of a parent to a child.
In Vernon v. Roban, the parties were married in 2009.[3] At the time of marriage, the mother had a child of a prior relationship, born in 2005. The parties also had two children during their marriage and separated in 2011. The three children lived with the mother after separation and she was subsequently granted temporary custody of the children. The mother brought an application under the Family Law Act requesting, inter alia, that the father pay child support for all three children, and also brought a motion for temporary child support while awaiting the resolution of the application.
The court in Vernon, after reviewing the evidence, found that the father represented to his step-child, to the mother, and to the world, both explicitly and implicitly, that he was responsible as a parent to the step-child. The father attended church with the mother and the children, took all three children with him on family outings, took the step-child to school every day, and represented in written correspondence that he would be a mentor and a “good father” to the step-child. The father took part in the caregiving of the step-child and his own biological children in the same manner, and provided for both the step-child and his biological children financially. The father also claimed benefits for the step-child, as his child, on his income tax return.
The court also found that, although the couple only cohabitated for a total of twenty-two months, this is not a brief duration from the perspective of the step-child: “twenty-two months, to a six year old, is a substantial portion of his life”.
In the end, the court granted the mother’s request for temporary child support for all three children.
The Take-away
Step-parents may be found liable for the support of their step-children where the court finds that they stood in the place of a parent or demonstrated a settled intention to treat the child as a child of their family. The test for whether a person stands in the place of a parent or demonstrated a settled intention is an objective one and the courts must take into account all factors relevant to the determination. Once a parental relationship is established, a step-parent is not entitled to unilaterally terminated that relationship and thus avoid child support obligations.
It is important to note that the Family Law Act does not apply only to step-parents. Courts have used the reasoning above to find other persons, such as grandparents, responsible for the support of the children where they have demonstrated a “settled intention” to treat the children as their own.[4]
Contact our lawyers for more information on support obligations in family law and divorce cases.
Disclaimer
Suliman Law Firm has prepared this document for information only; it is not intended to be legal advice. You should consult us about your unique circumstances before acting on this information. Suliman Law Firm excludes all liability for anything contained in this document and any use you make of it.
Endnotes
[1] Chartier v. Chartier, [1999] 1 S.C.R. 242 [2] Chartier v. Chartier, at para. 39 [3] Vernon v. Roban, 2012 ONCJ 820 [4] For example, see Cheng v. Cheng, [1996] O.J. No. 910 (ONCA)