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Should Stepfather Pay Support if Biological Father Given a Pass?

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Should Stepfather Pay Support if Biological Father Given a Pass?

A recent Ontario case considered the question of whether a stepfather, who voluntarily assumed support responsibility for a stepchild, can have that obligation reduced because the child’smother fails or refuses to legally pursue a contribution toward that support from the child’s biological father.

In Truong v. Truong, the couple were married in 2003 and had one child together.  However the woman had been married before, and had a child from that relationship who was now 18 years old.   When the couple decided to separate and divorce, they agreed that the man would pay $1,000 per month for support for both children, based on his $72,000 annual income.  Primary custody was to remain with the mother.  

The man had been voluntarily contributing to the support of his 18-year-old stepson throughout the relationship, and had assumed a parental role toward him.   As such – in keeping with Canadian law in such circumstances – he did not dispute that he was obliged to pay child support after the separation.  However, the stepfather contended that the stepson’s natural father ought to pay child support as well, and that at the least, such support obligation should be shared between the two men.

Indeed, over the course of their relationship the stepfather had periodically raised the issue with the mother, but she had flatly told him that she would not be pursuing any support contribution from the biological father.  For one thing, she claimed she did not know his whereabouts; however the stepfather   she could easily find out through connections in the parties’cultural community.  In any case, the stepfather never pushed the issue during the relationship, since on their combined incomes money was not a concern and there was no pressing need for contribution from the boy’s biological father at that point.

Once the parties separated, however, the stepfather claimed that the mother should pursue such contribution, and that his corresponding support obligation should be reduced accordingly.

The mother resisted, pointing out that the stepson’s biological father had not been in contact with him since he was about five years of age.   In fact, over the years she had essentially received no support from the biological father at all, and she had never pursued him for it via the legal process, despite the fact that he was apparently living in the U.S. and earning over $100,000 per year.   He had remarried and had other children.  The court found that she had apparently told the biological father that she would forego her right to child support from him provided he did not pursue his custody or access rights.

In determining whether the stepfather’s support obligation should be reduced in the circumstances, the court also evaluated the source of both his and the biological father’s support responsibilities to the stepson.  First of all, it confirmed that under the Child Support Guidelines, the biological father    to pay child support in accord with the Guideline amounts.  With respect to the stepfather, however, the Child Support Guidelines indicate that where there is a person who “stand in the place of” a parent for a child, that person may be obliged to pay child support in an amount that the court considers to be appropriate, having regard to the Guidelines and any other legal duty to support the child.

In addition, the court confirmed the following general principles:

• a step-parent can be obliged to pay support, even when the biological parent does not;
 
• a step-parent is entitled to commence a separate action to seek contribution from the biological parent;
 
• there is no obligation on a recipient parent (here, the mother) to legally pursue support from the biological parent.
 

In this case, the court surmised that the mother had avoided pursuing support from the biological father because she was content to not have involved in their lives and did not want to trigger him to pursue custody or access to the boy.  

However, the court stated that if the mother did not earnestly pursue support from the biological father, then the stepfather should not be obliged to contribute the entire amount.  The mother was simply not entitled to “elect” to choose between two possible payors, one of which was the stepfather, and could not unilaterally transfer the full support obligation onto him.    

In the end, the court concluded that stepfather should not be required to pay the full Guideline amount merely because the mother had chosen not to pursue the stepson’s biological father for it.

The court accordingly ordered that the stepfather should pay $225 for the boy, notwithstanding the fact that he had previously agreed on consent to pay $1,000 per month.

For the full text of the decision, see:

Truong v. Truong, 2012 ONSC 3455  http://canlii.ca/t/frsvj

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com.