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post >> Stepchild Support post Separation and Divorce— How is the Obligation determined?

Stepchild Support post Separation and Divorce— How is the Obligation determined?

Blended families are now common, and many persons marry or begin living with persons who have children from previous relationships. While living together, the spouses conduct themselves as a single emotional and financial unit. If the relationship ends, are you now obliged to pay child support for the biological child of your former partner?

Here is an example: John and Mary lived together for 3 years. Mary has a child, Robert, from a previous relationship, who was 3 years when John and Mary started living together and who is now 6 The father of the Robert lives overseas. He phones the child regularly and the child knows that this person is his father. He provides money for Robert from time to time.

John has been the main breadwinner for he and Mary during the co-habitation. He has a good relationship with Robert and has tried to treat him like his own child. However, Robert refers to him as “John”. Also, Mary has insisted that only she discipline Robert, as John is ‘not his father’ The parties have separated, and Mary has now commenced a child support application seeking support from John. Wait a minute, says John, you said I was not his father! The Courts in Ontario have jurisdiction make stepparents like John pay child support for their stepchildren. The legal test they apply is whether the stepparent has demonstrated “a settled intention” to treat the child as his or her own. Note that a child can have “two” fathers. Both the biological father and the stepparent can be obliged to pay support.

The Court will examine the specific circumstances of the case before it to determine if the individual in question demonstrated a settled intention to treat the child as his or her own. Some of the factors that a Court may take into consideration are:

  • The length and nature of the relationship between the parties to the action, including whether they were married. The longer and more permanent the relationship, the more likely that the individual would treat the child as their own.
  • The relationship between the child and the party in questions including.
  • An examination as to the extent the person was engaged in the child’s daily life. For example, did the person participate in childcare duties or extracurricular activities.
  • The Court will likely examine whether the individual disciplined the child, as a parent would.
  • Whether the party in question contributed to the financial support of the child during the relationship. This is a key factor. If both parties were contributing to the financial support of the child during the relationship, then it is likely a Court will find this arrangement should continue.
  • Whether the child participated in the extended family of the stepparent. If the child engaged with the individual’s extended family, like their own child would have, this may be an indication of a settled intention to treat the child as their own.
  • Whether the person represents to the children, or third parties, that they are responsible as a parent to the child. If an individual tells third parties that the child is theirs, it is likely that they intended to act as a parent.
  • Whether the person considered adopting the child. f the individual suggested adopting the child or changing their last name to that of the individual, this demonstrates that the individual anticipated that the “parent relationship” would be permanent.
  • The nature or existence of the child’s relationship with their biological parents.

Please note that once a party demonstrates a “settled intention” to treat a child as his or her own, then that that relationship has been fixed and the child support obligation has been permanently created. Once a parent, always a parent. A person who has demonstrated a settled intention to treat a child as his or her own, cannot then avoid the obligation by cutting off the relationship with the child after separation.

A biological parent must pay support for a child- period. We have had situations where a biological father learns some years after the birth of the child that he is the father of the child and has had no relationship with that child. This does not matter- the biological parent has the absolute obligation to pay child support.

The amount of support that a biological parent must pay is fixed by reference to his or her income based on the Tables under the Child Support Guidelines. The Court does however have discretion in fixing the amount of support to be paid by a stepparent. It need not fix support based on the Guidelines, and likely won’t if there is biological parent in the picture who is paying child support.

With respect the example above, much would depend on an examination of John and Robert’s relationship and the factors set out above. Our Courts are however vey child focused. If in fact John has been contributing to the support of Robert for three years, I would expect that there would be a strong inclination on the part of the Court to keep the financial assistance flowing to the child.

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