More than half a million Canadian couples live in “blended” families – meaning at least one child in the household is from a previous relationship of one of the parents. With our country’s high rate of relationship breakdown, the number of blended families is steadily rising.
But, common as blended families are, couples are often surprised to learn that they may have to pay child support to their non-biological, or “step-children”, when a marriage or cohabitation ends.
Are you “loco”?
Ontario’s Family Law Act defines the word “parent” very broadly to include “a person who has demonstrated a settled intention to treat a child as a child of his or her family.”
Similarly, for married couples, the federal Divorce Act defines a “child of the marriage” to include “any child for whom [the couple] 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.” This is frequently called the loco parentis test.
In determining whether someone has stood in loco parentis to a child, a court will consider a number of factors, including:
- how long the person was in a parenting role;
- the level of the person’s involvement in the child’s day-to-day life, discipline, extra-curricular activities, and schooling;
- whether the person contributed financially to the child during the relationship;
- whether the child participated in activities, holidays, etc with the person’s extended family;
- the person’s relationship with the child after separation, including whether the person exercised visitation rights or continued to participate in the child’s activities;
- whether the child referred to the person as their parent;
- the involvement of the biological parent in the child’s life; and
- any discussion relating to the possible adoption of the child.
As you’ve probably guessed by now, for the court to properly consider these factors takes time, evidence and therefore money.
Retreat is not an Option
Once the loco parentis bond is formed, the step-parent cannot withdraw from it unilaterally. Just like a biological parent that cuts contact with their children, a withdrawn step parent can be required to continue payments. The court will focus on both the child’s need for support and the child’s perception of their relationship with the step-parent.
While the court has discretion as to the amount of support payable, the presumption is that the standard Child Support Guideline amounts will apply to biological and step-children alike.
What about the Biological Parent?
What if your ex’s previous partner is not paying child support to your step child (their biological child)? Most people are surprised to discover that this has little influence on what your support obligation to the child is.
If you are sued for child support, you can claim against the child’s biological parent for a contribution to what you owe. But in the meantime, your obligation to the child may continue. Even if a child is receiving child support from a previous relationship, the court could still find it in the best interest of the child to receive support from you too and require you to pay the full Child Support Guideline amount.
If you are entering into a blended family relationship, consider signing a domestic agreement that makes it clear what each partner’s responsibilities will be to the children during cohabitation and in the event of death or relationship breakdown.
A court has the right to override these provisions if it is in the best interests of the children or if the agreement does not reflect the reality of the family dynamic. But your written agreement will at least be significant evidence of your “settled intentions” towards step children.
As with wills, powers of attorney and insurance, the small investment of time and money in such an agreement could save you a fortune if something goes wrong.
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