The Step-Parent's Survival Guide to the Law: Post-Separation

You'd have to be loco (Spanish for mad) to pay child support for someone else's kid(s); in loco parentis to be precise!

You've no biological bond and any emotional bond you might have with a former step-child suffers greatly when you split up with their real parent.

In The Beginning....

For centuries, the law has agonized over the rights and obligations of step-parents, even giving it a fancy Latin name: in loco parentis.

One approach, the earliest one known to law, was to recognize only natural relations and to impose no legal rights whatsoever between a child and a step-parent. In Rex v Munden, a pre-18th Century case in England, the conclusion was that the law "does not oblige the maintenance of any relation who is out of the line of cosanguinity."

But as the law evolved, and in both family law and in the law of wills and estates, the rights of step-children as towards their former step-parents grew.

In 1799, a British Court rung the bell loud and clear with reasons in Stone v Carr when it clarified that when a man, in regards to the natural children of another:

"... took the children into his family, he then stood in loco parentis to them."

But the old common law tribulations with in loco parentis are now all but mere law museum curiosities, as eloquently described by Alison Diduck in a law journal article in 1990:

"The in loco parentis doctrine is a creature of 19th century patriarchy. It evolved during a time when it was a morally offensive notion for a man to be held responsible for another man’s child. (I)t has its roots deep in history and carries with it connotations of times past."

step parents

And Now ...

Today, the law can be stated as a gender-free obligation of a step-parent to provide for his or her step-children even after separation provided that a real family bond had been created between the step-parent and the child.

To avoid long trials over what a "strong bond" is, many jurisdictions have defined the necessary relationship in terms of duration.

There are a variety of legislative drafting techniques to achieve this. One method is to tweak the definition of a parent for the purposes of family law responsibilities. For example, in British Columbia, a parent is defined as:

"... a stepparent of a child if the stepparent contributed to the support and maintenance of the child for at least one year, and the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child."

Ontario's Family Law Act leaves much more to debate by defining a parent as:

"parent includes a person who has demonstrated a settled intention to treat a child as a child of his or her family."

This option is a substantial disadvantage to  step-children (but a bonanza for lawyers), as it requires a person, usually poor to begin with, no option in the face of a reluctant ex-step-parent, but to litigate.

The federal Divorce Act also invites litigation by defining child of the marriage using these words:

"...a child of two spouses or former spouses includes any child for whom they both stand in the place of parents, and any child of whom one is the parent and for whom the other stands in the place of a parent."

Of course, to invoke the Divorce Act, there would have to necessarily be a separation between the natural parent and the spouse, alleged step-parent. This is not necessarily so with provincial legislation.

 In Chartier, based on the open-ended wording of the Divorce Act, Canada's Supreme Court wrote that a step-parent cannot unilaterally end an in loco parentis relationship (and thus avoid his/her child support liabilities):

"Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship.

"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....

"Nevertheless, not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts and it must be established from the evidence that the adult acted so as to stand in the place of a parent to the child.

"Even if a relationship has broken down after a separation or divorce, the obligation of a person who stands in the place of a parent to support a child remains the same. Natural parents, even if they lose contact with their children, must continue to pay child support.
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One curious feature of all this odd mix of differing family laws is that there is no theoretical limit to the number of step-parents from whom a step-child may be able to extract child support.

From time to time, a renegade court decision rears its head and pronounces that a natural obligation to pay child support outweighs an in loco parentis obligation (Re Spring and Spring)

Or that in loco parentis support is time-limited. In Bradbury v Mundell, step-parent child support was held to be limited to five years.

These types of cases led to the 1995 Child Support Guidelines which provide, at §5:

"Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child."

A step-child need not look to his/her natural parent first before claiming support from a step-parent. But a step-parent facing a child support claim would have to strongly consider joining in as a co-defendant a natural parent.

Given the wording of the Guidelines, and as to the quantum of child support in a step-parent situation, Justice Preston got it right when, in rejecting a claim for step-parent child support, he said, in Russenberger:

"The appropriate child support order is a matter of (judicial) discretion.

"Recognition of the primary obligation of biological parents for the support of children is inherent in the structure of the Guidelines and the Family Relations Act.  Determination of the appropriate child support obligation of a parent who stands in loco parentis must be made in light of all of the circumstances of each individual case."

In Russenberger, the court also enumerated a series of relevant facts that serves as a good base to a step-parent child support analysis.

Another good example of how these claims can pan out in real life is H v H in which Justice MacKenzie refused an application for step-parent support where the relationship had been short; the proposed Payor already paid support for two children of a previous marriage; he had a modest income; the biological father was paying child support; and the mother had medical and dental coverage for the child.

Custody and Access

In terms of custody and access, there is some authority for giving precedence to natural parents. In Meikle, Justice Johnston of the Alberta Court of Appeal wrote:

"There can be no doubt that the parent of a child has prior right to custody over all others."

For the most part, those statement may now have been squeezed out of the law by emerging statutory definitions of parent which include, under defined circumstances, step-parents or those who stand in loco parentis.

In any event, most modern courts will decide upon a custody or access application taking into account only the best interests of the child. Many family law lawyers, such as myself, will have wrestled custody or access from a natural parent without having ever heard in the courtroom a statement such as that of Justice Johnston. Indeed, sometimes subject only to leave of the Court, third-parties who have never had in loco parentis status, such as grand-parents, can apply for custody or access rights.

Certainly, under the Divorce Act, the entitlement to apply for a custody or access order is wide-open and in fact exceeds step-parents; to wit, §16 (emphasis added):

"A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage."

Most provincial legislation is similar. For example, §35(1.1) of the Family Relations Act of British Columbia:

"... a court may, on application, order that one or more persons may exercise custody over a child or have access to the child.... Persons ... includes parents, grandparents, other relatives of the child and persons who are not relatives of the child."

Conclusions

Chek your local law to see if there is a time threshold after which you're on the hook for step-child support. If your provincial law simply refers to a "settled intention" or "stood as a parent", you'll not only need legal advice, but you'll never, ever know for sure if you ought to pay or not as in the end, it'll be a matter of judicial discretion. But at least a good lawyer should be able to establish fairly accurate odds for you. One common rule from the Atlantic to the Pacific: the more time passes between the date of separation and the demand for step-parent child support, the less the chances of child support liability.

As for custody or access rights to a former step-child: be careful what you ask for. Many custodial parents willl not seek child support from a former step-parent until and unless the ex asks for access to the former step-child. This is a sad stement but nonetheless too often true.

REFERENCES:

  • Beaudry v Gillcash (also cited as A.D.J.B. v. B.J.G.) 2001 MBQB 193
  • Bradbury v Mundell 1993 13 OR 3d 269
  • Chartier v. Chartier 1999 1 SCR 242
  • Diduck, Alison, Carignan v. Carignan: When is a Father not a Father? Another Historical Perspective, 19 Manitoba Law Journal, page 580 (1990)
  • Divorce Act, Revised Statutes of Canada 1985, 2nd Supplement, Chapter 3.
  • Family Law Act, Revised Statutes of Ontario 1990, Chapter F-3, §1.
  • Family Relations Act, Revised Statutes of British Columbia 1996, Chapter 128, §1.
  • H v H 2004 BCSC 179
  • McLeod, J., Child Custody Law and Practice (Toronto: Thomson-Carswell, 2008).
  • Meikle v Authenac 3 RFL 84 (ABCA, 1970).
  • Powys v Mansfield 34 ER 692 (1836)
  • Re Spring and Spring 61 Ontario Reports 2d 743 (1987)
  • Rex v Munden 1 Strange 190 and at 93 ER 465.
  • Russenberger v Rebagliati 200 BCSC 82
  • Shtitz v CNR 1927 1 DLR 951 (SKCA)
  • Stevenson v Perry (also cited as B.W.S. v. K.L.P.) 2005 BCSC 1089
  • Thériault v Thériault 1994 2 RFL 4th 157
  • Wilson, J., Wilson on Children and the Law (Toronto: LexisNexis, 2008).

Published: Tuesday, January 06, 2009
Last updated: Wednesday, March 24, 2010
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