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Monthly child support payments from one parent to the other are one of the most common outcomes of a separation. As time goes by, separated parents often re-partner, and step-parent relationships can become part of the matrix of a blended family. But what happens if the parents in the blended family separate? Is a step-parent required to pay child support for a stepchild? In some cases, the answer is yes.
That was the outcome of a recent twelve-day trial before Justice Dale Fitzpatrick of the Ontario Superior Court of Justice who was asked to decide if a stepfather had an obligation to support two stepchildren. The trial focused almost entirely on the binary issue of whether the stepfather should pay child support. The length of the trial made it very clear: determining a step-parent’s, or subsequent parent’s, child support obligation is far more complex than determining a first parent’s obligation.
In the case before Justice Fitzpatrick, the parties lived together for only 22 months, of which they were married for 17 months. The husband did not have any children from a prior relationship. The wife had two children, aged 9 and 11 years at the time of separation. The children’s biological father had a fractured relationship with the children and, when the parties began living together, the children were not seeing their biological father at all. The biological father was in receipt of social assistance and was paying child support of $94 per month.
Following the separation, the wife sought child support from the husband. The husband disagreed. A hard-fought trial ensued. To determine if the husband owed child support, Justice Fitzpatrick had to carefully analyze the relationship between the husband and the two children. The judge had to decide if the husband had stood in the place of a parent since, under the Federal Child Support Guidelines, which apply across Canada to divorcing spouses, child support may be payable by a spouse who takes on the role of a parent.
The judge was guided by number of court decisions which find their roots in Chartier v. Chartier, a 1999 decision of the Supreme Court of Canada. In that case, Justice Michel Bastarache noted that spouses “are entitled to divorce each other, but not the children who were part of the marriage” and that when a spouse stands in the place of a parent, children ought to be able to “count on that relationship continuing.”
To determine if a spouse has stood in the place of a parent, a judge will consider a number of factors. According to Justice Fitzpatrick, those factors include, but are not limited to: a) participation in family events, b) the step-parent’s financial contribution toward the children, c) the step-parent’s participation in duties related to the children, d) responsibility for disciplining the children, e) children’s use of the step-parent’s surname, f) reference to the step-parent as “dad”, g) length of the step-parent’s relationship with the children and h) the nature of the children’s relationship with the biological father.
Over the course of the 12-day trial, the evidence given by both parties was remarkably similar on many of these factors. According to Justice Fitzpartrick, the husband testified that “the children were calling him dad commencing with the first three months” of his relationship with the wife and that “he paid for all of the household expenses without contribution from the (wife) who did not work outside the home during the relationship.” The evidence also showed that the husband participated in the children’s extra-curricular activities such as swimming, hockey and skating. There was evidence of family vacations together to Mexico, Florida and Muskoka.
Despite the depth and breadth of the evidence, the husband denied that he had any closeness or relationship with the children. The husband’s position was grounded in his belief that he was “dominated by the (wife) and somehow coerced to act like a parent against his will.” Justice Fitzpatrick dismissed the husband’s claims on the basis there “was no meaningful evidence presented during the trial to support his claim that the (wife) forced this relationship on the (husband) or on the children.”
Notably, following separation, the husband did not have any contact with the children. According to the wife, the husband chose to discontinue any contact. Not having contact after separation does not have any bearing on whether a child support obligation exists.
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In the result, Justice Fitzpatrick had “no difficulty” finding the husband stood in the place of a parent and is required to pay child support to the wife for the support of the two children. Recognizing the short length of the relationship, Justice Fitzpatrick ordered the husband to pay child support for a period of three years.
In determining the amount of the husband’s monthly child support obligation, Justice Fitzpatrick deducted the $94 per month paid by the biological father.
Given the nominal amount of child support being paid by the biological father, it is worth noting that a stepparent may be required to pay the full monthly amount of child support in certain circumstances. That issue was discussed by Justice Erika Chozik in another recent case in the Ontario Superior Court of Justice. According to Justice Chozik: “When the biological parent is not present, and his support obligation cannot be quantified or enforced, there may be circumstances where the step-parent will have to meet the primary obligation of child support in order for the child to continue to enjoy the standard of living he or she enjoyed while living with the step parent.”
In addition to his obligation to pay time-limited child support, the husband was ordered to pay costs of $135,000 to the wife on account of the trial. According to Justice Fitzpatrick, the trial “was a winner-take-all 12-day trial made longer by the (husband’s) incredible denials of any emotional relationship with the children.”
Given the length and costs of a trial to determine if a parent has stood in the place of a parent, separating spouses would be wise to consider settlement options early on in such a dispute.
Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto.