Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child Support
Part 2: Child Support (continued)
Child support obligations of a spouse who stands in place of a parent
Spousal and family relationships of varying permanence, and blended families, have become more common in Canadian society in recent years. A person who acts as a parent to the children of his or her spouse may have a legal obligation to support those step-children after the relationship with the spouse ends. Footnote 1
Currently, the federal Divorce Act defines a child of the marriage (a child eligible to receive child support) as a child of two spouses or former spouses, and includes
"any child of whom one is the parent and for whom the other stands in the place of a parent."
Most provinces and territories have adopted a similar definition in their own legislation or have defined child as
"a child in relation to whom a person has demonstrated a settled intention to treat as a child of his or her family." Recently, the Supreme Court of Canada decided that it is not in step-children's best interests for a person to leave a relationship, in which he or she has assumed the role of a parent, in order to avoid paying child support.
Once a step-parent relationship has been established, the obligations of that step-parent towards the children are similar to those of the natural parents. The process for determining the child support amount when there are step-parents is not set out clearly in federal, provincial or territorial legislation. The Federal Child Support Guidelines, for example, currently allow judges to set a child support amount they consider appropriate. When making this decision, judges must take into account the amount set out in the child support tables and the legal duty of any parent other than the step-parent to support the children.
In provincial legislation such as Manitoba's, a step-parent's obligation to pay child support is second behind the natural parents' obligation. In addition, the step-parent generally has to pay support only when the natural parents fail to provide reasonably for the children's support, maintenance or education. When the children's natural parents pay the full amount of child support, the step-parent may not have to pay anything. The law does not say how to determine how much the step-parent should pay when the children's natural parents are not paying the full amount.
Judges have used various approaches to calculate the amount of child support a step-parent would pay under both the Federal Child Support Guidelines and provincial and territorial legislation. For example, judges have done the following:
- split the total amount of the expenses related to the children among all the paying parents, according to the ability of each parent to pay;
- added the incomes of all the paying parents to get the total income, found the child support table amount for that figure, and then split that amount among the paying parents, based on the percentage of the total income each earns;
- figured out the percentage figure that reflects the role each parent plays in the children’s lives, each parent then paying that percentage of the table amount for his or her income level; and
- had each parent pay the table amount for his or her income level, an option that may result in the amount of child support being larger than it might otherwise be.
Should the child support guidelines be changed to provide more direction to parents and judges about whether a stepparent should pay child support, and how much he or she should pay?
There are different ways judges could figure out how much support a step-parent should pay. Two ways are:
- The step-parent could pay the table amount minus the amount the natural parent is paying.
- Each paying parent, including the step-parent, could pay the table amount for his or her income level.
Please describe in your feedback booklet any other approach you think would be effective and explain why it would work.
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