If your spouse has a child from a previous relationship, you may be required to pay child support should your relationship breakdown.
When parents move on to form new relationships, their new spouses can sometimes assume the role of parent to a child from the previous relationship, even though they are not the biological parent. This is known in law as standing “in loco parentis” which means “standing in place of a parent.” In these situations, a parent-child relationship can form, which may give rise to an obligation to support that child. This can happen regardless of whether you are married or living common-law with your new spouse.
Why do I have this obligation?
The ability for courts to order a non-biological parent to pay child support stems from the definitions of “parent” in the Family Law Act of Ontario, and “child of the marriage” in the Federal Divorce Act. In the FLA, parent is defined as an individual who has demonstrated a “settled intention to treat a child as his or her family.” In the Divorce Act, which only applies to married couples, “child of the marriage” includes any for whom an individual is “standing in place of a parent.”
Both these definitions contemplate a situation in which someone who is not the biological parent of a child has assumed the role of a parent. If the court finds that an individual has stood in place of a parent, or has demonstrated an intention to act as a parent to a child, they may order that that individual pay child support.
What about the biological parent’s obligation?
Even if your spouse is receiving support from the biological parent, you may still be required to support the child if the court deems that it is in the child’s best interests to have that additional support. The amount of support may be impacted by the support already being paid by the biological parent.
If you are ordered to pay child support and the biological parent is obligated to, but is not supporting the child, you may be able claim compensation from the biological parent.
How does the court decide whether to order support?
When determining whether to order a non-biological parent to pay child support, the courts will look to a number of factors relating to the person’s intention, and the actual roles they have played in the child’s life. This leading case in this regard is the Supreme Court of Canada case Chartier v. Chartier, which outlined what is commonly known as the “loco parentis” test.
In Chartier the court looked to a number of factors when determining whether to order support. These include:
Whether the child participates in the person’s extended family in the same way as a biological child;
Whether the person provides financially for the child;
Whether the person disciplines the child as a parent;
Whether the person, either implicitly or explicitly demonstrates that they are responsible as a parent to the child;
The nature or existence of the child’s relationship with the absent biological parent; and
Whether the person, after separation, continues to have a relationship with the children, for example, by exercising access or visitation rights or otherwise playing a role in the child’s life
This list is not exhaustive, and the courts will look at both the express and implied intentions of the individual. Child support can be ordered even if a person expressly stated the intention to not stand in place of a parent for a child, if their actions give rise to the inference of a parent-child relationship (for example, if the person then disciplines the child and participates actively in their lives).
Many couples include terms about child support for step-children in cohabitation or prenuptial agreements. It is important to note that a document indicating that you are not standing in place of a parent is not necessarily sufficient to avoid an obligation to support the child. The court will look at the actual relationship between the individual and the child, and make a determination accordingly. However, a written document outlining your intention may assist in showing that no parent-child relationship exists.
Can I withdraw from being in “loco parentis“?
If you have formed a parent-child bond or relationship with a non-biological child, you are not permitted to unilaterally withdraw from that relationship and therefore avoid your obligation to pay support. Once the parent-child relationship is created, the obligation to support that child will remain, regardless of whether you no longer play an active role in their life.
However, if the child withdraws from the relationship, a court may find that the parent-child relationship that had formed had dissolved, thereby eliminating the obligation to support the child.