Child Support: Support for Step-Children, Part 2

When do I have to pay child support for my spouse's children?

In a previous post, we addressed the term "in loco parentis" and how standing "in place of a parent" can lead to an obligation to pay child support.  This post reviews (1) how courts determine when support should be paid and (2) whether you can withdraw from being "in loco parentis".

How does the court determine 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 also 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.