April 20, 2009

When does a Step-Parent Have to Pay Child Support?

It's a common misconception that only biological parents have a child support obligation when a relationship breaks down. Rather, the law states that where a step-parent or common law partner of someone with a child has been standing in the role of a parent, known as in loco parentis, the court will order that person to pay child support, even though they are not biologically related to the child.

However, child support will only be ordered where the person is found to be a "parent", which is a defined term under the Family Relations Act:

A "parent" includes
(a) a guardian or guardian of the person of a child, or
(b) a stepparent of a child if
(i) the stepparent contributed to the support and maintenance of the child for at least one year, and
(ii) 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;

Section 1(2) of the Act states:

(2) For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child
(a) are or were married, or
(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender.

So to summarize, the court will only order a step-parent to pay child support where three conditions are met.

The step-parent:
  • was either in a marriage-like (common law) relationship with the child's parent for at least two years OR married to the child's parent for any length of time; AND
  • contributed to the child's support or maintenance for at least one year; AND
  • last contributed to the child's maintenance or support within one year of the date that the child support claim was filed with the court.

This last point means that if the biological parent starts a court action for child support more than a year after the step-parent last contributed to the child's maintenance, the court will almost certainly dismiss the case because it is after the limitation date in the Act.

43 comments:

  1. So does all conditions have to be met or just one?

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  2. check out chartier vs chartier on wikipedia...a well known supreme court of canada case

    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.

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    1. This law is completely out of line. There is NO WAY that a person who lived with someone who had children form a previous relationship should be held responsible for the financial needs of those children unless they formally adopt them. Children are entitled to what their BIOLOGICAL parents can provide them. Thatis it! People who are living common law are being railroaded.

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    2. As I understand it from my lawyer, our laws are based on industrial era laws from England that were meant to protect orphans from being "cared for" by an adult who needed cheap labour to run their businesses, then discarded back as orphans when they were no longer useful. So, if you care for a child at anytime in that child's life you are responsible for them until they are an adult. The qualifiers - must have provided support for one year, etc are meant to provide some protection for casual relationships. BUT-this is something many people are not aware of when they enter into a relationship with someone who has children.

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    3. OK my friend... Please know I'm asking advise... not trying to get into a dilemma.... my son's father has not paid support "ever" even though the court ordered payment of 221.00 per month.... after 8 years our son went to live with hid dad... heart breaking as it was, I could not deny my son his father, over the 6 years I continued to pay his health care, dental, glasses etc... not to mention 500 here 1000 there all in trust it was for my son... sorry our son. Yet when ordered by court for 221.00 a month he refuses to pay and has not paid his debt is now over 18,000.00 and per every government agency they say they can't do anything... any advice???

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  3. Disgusting. Why the hell should anyone who is not the biological parent have to pay anything? It's up to the parents to make sure the child is financially taken care of not us who didn't breed!!

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  4. My ex had 3 kids with her ex husband and she's now trying to screw me into paying child support for those kids. Her ex ran off to the States. I already pay support for my 2 biological children. Canadian Laws are complete crap. They use "the best interest" of the child analogy to justify anything. Free money from anybody the kids ever knew should not be the norm. Had I known I would be on the hook for her kids, I would have NEVER gotten involved with her. It's a scam beyond proportions that governments take advantage of people that try to be nice to non biological kids and then get scammed out of money.

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  5. my husband has been taking care of my child for 5 years shes only known him she calls him dad and its right that he just walks out her life? He knew from the get he wasnt the dad he took her in and called her his since she was 3 months! shes basically 5 is it fair that he decides he wants to leave and not take care of her? I know im resposible for her but at the same time she has no other man or farther figure but him its not right that a man would do that and unlike some of these stories he took care of her since birth basically ill be damn if you walk out on her cause shes a kid she doesnt deserve that at all he wants to leave me fine but dont do an innocent child that at all and some of yah call yourself men?YOU DONT HAVE TO BE THE BIOLOGICAL PARENT TO BE A FARTHER OR A MOTHER IT TAKES A VILLAGE TO RAISE A CHILD AND A REAL MAN TO STEP UP! A LEADER WITH NO FOLLOWERS IS JUST A MAN TAKING A WALK BUT A LEADER THAT HAS FOLLOWERS AND IS LEADING BY EXAMPLE IS A MAN CHANGING THE WORLD! because of men like this is the reason we have these laws

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    1. Where is the child's biological father, why aren't you holding him to that standard? Step parents are not replacements for biological parents. Because you love someone it is unfair that all their choices become your reality when you have chosen to live your life differently. If you have made a choice to have a child you should have the financial capacity to care for that child period.

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    2. You haven't given it much thought have you. what happens if you meet someone new, is your new man then going to be the daddy to your daughter! what would happen to your ex then, would you stop him seeing your daughter? what would your new boyfriend/husband think if a man who is not your daughters biological father keep coming round to see her. What if you find someone else and then you split up would he also have access to your daughter, so on and so on. I think it would be better and less confusing for your daughter if she didn't see him again she is young and will forget in time.
      After all how many daddies could she end up with.
      (My daughter in law was a single mother when my son married her, she has broken up the marriage and still wants my son to be the daddy after the divorce. It breaks his heart and mine but IT IS best for the child not to see us anymore as there will eventually be a new 'daddy' on the scene.)

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    3. He should get custody of his daughter so you can go work and pay him child support for his little girl.

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  6. It's a difficult one, and no one really has the right to judge. If an adult gets involved with someone with children that adult should know that he or she is taking on a responsibility. The reality is that children do bond with mother/father figures who are not their biological parents , and all adults have to do is maintain those relationships with the children no matter what the adult relationship becomes. In the end kids shouldn't have to go through losing parent figures because the adults didn't get it right. And I don't agree that because children are small they forget! They don't forget, they feel abandoned and can't express those emotions, all they do is adapt to the situation but suffered abandonment issues later on in adult life. I think this law is fair, and people should be aware of it. If anything it would deter people with false intentions from getting involved with other people's children and destroying those children.

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    1. A marriage is between a husband and wife and no one else. It is clearly stated on the license. You are responsible for your own children. How dare you try to bring anyone else in on that choice that is yours and yours alone. Take care of your own children. Don't expect someone else to do your responsibility. There is no such thing or truth to step parent or children or brother and sister. It is a lie. They are your spouses children. Or he family of someone else

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  7. I don't think a step parent should be made to support a stepchild. They have the least to do with the child yet get more affected in a negative way than anyone else. Its very well saying they should assume responsibility when marrying their partners but their partners and other parent know their responsibility towards THEIR own children. Expecting a step parent pick up the slack is so very cheeky.

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    1. I know what you are saying and feeling... however should you choose to adopt a child with your new spouse, you have chosen to take the responsibility... your choice!!! because you love the child and the child's parent. As always your choice.. my dad chose to adopt me... gave me his last name... a name I hold proud! he as he says today took the responsibility not because it was his to take... but because he loved my mother and me... he never paid... except for the grief I put upon him, but he proudly accepts that as a fatherly duties... and that is what a father is... adopted or not!! Never mind payment teaching is more important

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  8. This sounds very ridiculous..Step parents should not pay child support.They should give gifts ect,bcos they love the children.If there's a divorce,then they should still be in a child's life if they decide too,BUT NEVER BE FORCED TO PAY FOR THEM.
    I have step kids and I LOVE THEM SO MUCH!! I buy them gifts,pay for parties,school outings bcos I want too,no enforced by the courts.You have kids,you pay for ur own damn kids.Find the father,Make him support you.

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    1. Understand... you say you love them... yet in your first sentence you talk about money and what you do for them, Maybe just maybe, love them for who they are and just stop paying!!!, like my step dad did for me... he taught me how to fight and stand up for myself (without payment) my dad taught me respect and dignity towards others... it is hard to be a step dad and I know cause I am a step daughter who loves her dad (step) or not he is still my dad my father and one whom I respect because he taught me not bought me.

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    2. but Dessi it sounds like your stepfather legally adopted you. He willingly took on the responsibility of parenting, knowing he was not the bio dad. There's a difference between the responsibilities of step parents who legally adopt the child and those who... well...don't. It's great that your Dad adopted you but that doesn't mean that every step parent should automatically be assigned the responsibilities he took on voluntarily.

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  9. Its a sad thing where people have to go through a divorce. Now when a man or women gets out of what could be a cancerous relationship and tries to recover some normalcy of life, now has to worry about their potential spouse if he/she has kids. Why would any person who went through a horrible relationship feel the trust and comfort knowing that if one day something changes they would be on the hook for a child that was not his. Totally disgusted. Signed, Single to the End.

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    1. Funny as per you... Single to the end!!!!!!!!!!!! However I'm sure we have all gone through painful relationships... My choice is to remain single and it's not because of relationships ... it's my choice, to find me first... all to often we love for the feeling of being loved, yet we don't know how to love...(me) first has always been the attitude ... I am so sorry for your divorce... please do not blame... YOU!.. YOUR WIFE / HUSBAND or CHILD... Understand there is a growing process within us all, and sometimes we grow apart to grow together.

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  10. Conclusion:
    NEVER marry to woman with a child/ children! If you play "Good Samaritan" then the law will PUNISH you!

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  11. I am a step father and my step daughter sees her biological dad every second weekend! She is always brings her biological dad contributions in her like more than mine!! She is about 13 years old. Am I liable to support her if my common law relationship ends for any reason manufactured by my common law wife? I have been in the relationship for about 5 years!

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    1. Tell you what... I am a biological daughter adopted by a step father... ( and today I am proud to carry his name) you will go through nothing but grief... there is an old saying... the grass is always greener on the other side however daughters truly are the worst... and they will make the grass on both sides decay... Ask me I am one... I had my biological dad who didn't care about me... (I know that now) but there was no telling me then.... I had my step dad... who stood for me every step of the way... and still does... trust me there will be a day of reckoning and (your) daughter adoptive or not will come to know who and what a father truly is... as I did... trust me it is a fight but one you will win...

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    2. you could possibly be held liable but introduced to the court I doubt it! she will have to fight it out with the father not you, keep notes, of days, times, etc of when the child goes to the father as well as payments and what the mother used them for... and if she tries to hold you liable for the child, use these and again put the onus on the father and x partner (mother) the courts are not so easily swayed anymore.

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  12. Does this law apply in South Africa?
    My common law step dad has supported me for 8 years while my mother was staying with him, mother passed 7 months ago.
    He is now the major claimer on her inte estate and not giving anything to myself and my sister, could i sue for him to then continue paying support

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    1. I do not know how the African law works... but I'm sorry take your case to a lawyer (someone who will look into your case) (without payment) a far as our law is concerned... it is up to the recipient to decide where the estate money goes even if there is funds bequeathed to son's, daughters, or other family members... it is up to you to stay the proceedings of the will. If your father or common law father is named as beneficiary it will be a battle but fight it if you feel this is right! you have the right to stop payment until the courts are satisfied.

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    2. It's moot now, I suppose, but here are some facts that apply in South Africa: first, there is no such thing as common-law marriage - you're either married or not. One can have a cohabitation agreement but that is not the same. Second: this so-called 'common-law' stepdad in fact has nothing to do with the mom's estate UNLESS he was named as beneficiary, and even if he was, anyone else who can prove financial dependence on the deceased has a claim against that person's estate. So if you were such a dependent, you can certainly lodge a claim.

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  13. how does the law rule when the biological father is currently paying maintenance for the child whom mother married to another so under certain circumstance the step dad is also divorcing the mother, so is the step father also going to be obliged to pay maintenance?

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    1. Not necessarily... If the mother is claiming support from the step father (and being paid) she has to prove the biological father is neglectful of his payments... (something to figure into your case)... should these children possess your last name this is another thing in it's entirety... however should the father still be paying support use it, and him to prove that perhaps the mother is not the best suit for the children if you truly love these children... you have to look into your state or province's laws.

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  14. If a man adopts a woman's child and they split up does he stand a chance at taking that adopted child with him instead of the child staying with their biological mother?

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    1. I do believe the adoptive father stands a chance to take biological children away from the biological mother. Given the mother is proven to be completely unfit. He should be given access for these children were once his own as he adopted them as his (gave him their last name)... I was adopted by my step father... thank god I got a good one... but I know my step father would have never challenged my Mom unless he felt I was in danger... not saying this is your case! but understand! fathers do love being biological or adoptive. May hate mothers but oh well right?

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  15. This law system is so bloody annoying

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  16. Well, that settles it for me. No mans children will enter my home, ever. Sorry single moms. The law has made it too great of a liability to date you. Yes, I am a single dad too, but lets face it: who's more likely to want to work fewer hours and ponder the benefits of going after former step-parents? Right. Women are. The idea a woman can hop from partner to partner every other year and amass a list of payors for the same children sickens me. Is this really the "best interests of the children"? Or is this a neat new way for single moms to subsidize their income, or lack thereof? Also of note: If single mommy makes a good income today, she may opt out of working as many hours down the line and then have her lawyer send out nice letters to her former lovers: I now have no income. Your new child support payment is: $$$$$$. Sorry ladies, not happening. And I'll warn as many men getting into this situation as I can.

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    1. I am so sorry for you! this is only an adaptation of the law this does not mean you have to pay for children that are not yours, If and when you find someone whom you love and they love you... this should not be an issue... children should never be an issue... adoptive or not... you should not have to pay support to a women worth an ounce of self worth... and women with this trait should never ask unfortunately there are to many women like this out there and are deviant, yes be careful, be cautious but do not let yourself refuse a love that it true. The hard part is finding that right person and where is the perfect person? not sure... I'm still kinda... but not really looking myself. Bottom line is never stop looking for your mate in life... even if he or she has children, but make it known that unless you fully adopt them giving her and her children your last name you are NOT responsible for their wellbeing should the relationship go sideways. And if it does bring the responsible father into court you can do that...

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  17. Has any stepfather had to pay on child support even though the biological father is paying too? What was the outcome?

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  18. I know we’re talking here about Canadian law but the laws in the U.S. (regarding step-parents and child support) are very similar. Over here the law is shrouded under obscure and convoluted legal terms like “in loco parentis” and the “Estoppel doctrine”. In effect, a single man who attempts a relationship with a single mom and voluntarily chooses – as a matter of kindness - to provide financial assistance to her family, can indeed be punished for his generosity and forced to provide ongoing financial support if the relationship fails for any reason. People should be aware of and clearly understand these laws before entering into a serious relationship with a single parent, though our state and Federal lawmakers would prefer that they didn’t. What’s the Latin term for “blindsided”?

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  19. My son at age 11 just told me he has decided to live with his dad. So I'm wondering if my new retired husband has to pay child support? My sons via logical dad didn't pay child support.

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  20. I have recently remarried. Less than a year ago and my 11 yr old son said he wants to live with his dad so we are trying it out. I just want my son to be happy so it's not worth fighting about and having him in the middle as much as it breaks my heart. I'm wondering if my new husband that is retired and not well will have to pay child support? My ex never paid child support and I'm thinking that he may be thinking this will be a money grabber for him as he has always thought that way??

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  21. What happens if the children's biological father passes away when the children were 6 years old and the mothers new friend ( step father) decides he wants to be called Dad! Is he responsible for child support if they split up after 8 yrs of living together

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  22. I'm married to a woman who has 3 boys from a previous marriage aged 13,11,9 and they've just decided to go live with there dad, he's paid very little because he believes it's my job cus they lived with us, disgrace of a man where fatherhood concerned but will I have to pay maintenance as a step father??

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  23. Hi. In short i have a 7 + 9 year old. Their biological father passed when they were 1 year and 10 months old and the other just 3 months old. I got involved with a new person in 2009, til now 2016. We married just 10 months ago, 2015. It has been a roller coaster of highs and lows. Physical, mental and emotional abuse is freely given. He walked out on us 3 nights ago. We are still at home trying to collect oursleves. It is his home. We dont have a home. I dont earn alot but i do take care of every single financial obligation for me and my daughters. He does not contribute a cent. The only thing we dont pay for is a home. If i had the money to afford rent. water and elec I wouldn't be feeling so paniced. He is bound to come back and kick us out. Where do we go? What are my rights. I am no gold digger so dont get me wrong. I just dont know how im going to afford a home and water and elec. The rest i can do myself.

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  24. From this article I can see that the only safe way a man can have his own family is to either adopt two children or hire a foreign surrogate agency to help him pay a foreign surrogate mother to sign over two children to him for cash ($100,000 total cost for a child through surrogacy) and then once you bring the children to Canada to live with you, then AND ONLY THEN can you safely get married to a woman who has no children of her own. And you and her have to agree that she will not have any MORE children of her own, she has to simply accept the 2 children that you already has and make them her own. Since they were not HER children originally, if a divorce happens she will not get custody of the children, not even partial custody, and you as a man do not have to pay her monthly child support payments. Other than leaving the country completely and starting a new life in a foreign country, this is the only way a Canadian man can have children and a wife without worrying about having to pay child support in a divorce.

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I would love to hear your views on this post so please leave a comment below. Unfortunately, I am unable to provide any legal advice through these comments. If you need legal advice, please contact one of the pro bono resources listed on the right side of the Rights & Remedies blog.