Q: What obligation does a man have to step-
children after his relationship with the mother ends? After our divorce, my wife got a support order for all three children, including the stepchild. The mother now lives with the biological father of the stepchild. Can I change the support I have to pay?
A:The law imposes support obligations on both biological and step-parents. Saskatchewan’s Family Maintenance Act, which is similar to the law in most provinces, says every parent has an obligation to provide maintenance for his or her child. A
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parent includes “a person who has demonstrated a settled intention to treat a child as a child of his or her family.”
Provincial maintenance laws apply when one seeks support but no divorce is sought. The federal Divorce Act provides that upon granting a divorce a judge can order spousal support and child support. A child of the marriage is defined as “any child of whom one is the parent and for whom the other stands in place of a parent.”
There have been many court decisions confirming a step-parent’s obligation to support his stepchild. In its 1999 decision, C vs. C, the Supreme Court ruled “that once a person is found to stand in place of a parent, that relationship cannot be unilaterally withdrawn by the adult.” The court also ruled that the determination of whether a person stood in place of the parent was made before the relationship between parents ended. Factors included whether the child participated in the extended family, whether the parent provided financially for the child, whether the person disciplines the child and whether he holds out to the public that he is the parent.
In this case, the couple began living together in 1989 and had a child in 1990. A year later the couple married. The wife had a child, J, from a previous relationship. The relationship did not last and court proceedings were commenced to deal with support and divorce. The court found that “while the parties lived together, the husband played an active role in caring for both children and was a father-figure for (J).” The court confirmed that the stepfather had a continuing obligation to support J.
The court also dismissed the concern that the child might be able to collect double support from both the biological and the step-parent.
“The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. The obligation to support a child arises as soon as that child is determined to be ‘a child of the marriage.’ The issue of contribution … should not affect the child. If a parent seeks contributions from another parent, he or she must, in the meantime, pay support for the child regardless of the obligations of the other parent.”
An application for variation of a maintenance order can be made under the Divorce Act and provincial maintenance laws when there has been a change in circumstances. Does the fact that the biological parent is now living with his child amount to a material change in circumstances?
First, as noted in the C case, obligations to a step-child continue after the parents have ended their relationship. In CA vs. CA, a former husband applied to have spousal support discontinued because his wife had remarried. The judge decreased the maintenance spousal support from $659 per month to $350.
In an Alberta case, W vs. W, the ex-husband sought to have spousal support to his former wife cancelled. He argued that her remarriage was “a material change in her needs and circumstances.” Citing other judgments, the court concluded that remarriage was only one factor to consider in deciding whether to continue a spousal support order and that this factor alone did not automatically end support obligations. In this case the judge continued the child support, but canceled spousal support.
Child support guidelines must be considered in any application to vary child support. Established in 1997, the purpose of these guidelines is to provide uniformity in child support. There is a separate guideline for each province. They can be found on the net at http://justice.gc.ca. Look for laws, then child support guidelines.
