Being Nice to Your Partner’s Kids: Inheriting Child Support Obligations
For biological parents, child support obligations are straightforward: A parent’s duty to provide financial support for his or her child is based in the Canadian Divorce Act, with relevant factors and prescribed support amounts being dictated by the Federal Child Support Guidelines. However, things become murky in an era where common-law relationships, blended families, and step-parent relationships are common. When and to what extent does a non-biological parent-figure have support obligations towards the children of his or her new partner?
For example, a common scenario involves a woman with children from a prior relationship setting up a home with a new partner, who then integrates himself into her life and that of her children, usually over a period of years. If that relationship subsequently ends, a court may have to determine whether the new partner has any support obligations toward those children who are biologically not his own. To do this, courts review the new partner’s relationship with the child, and ascertain whether it is independent of the one with the wife; in some cases the partner may be merely being amicable in order to foster the relationship with the child’s mother.
This raises an important point: a new partner will not be found to be a “parent” in law merely because they are civil or amicable to a child. On the flip-side, a new partner should not have to ignore a child in order to avoid the risk of attracting child support obligations toward him or her.
The Ontario courts take into account all the relevant factors, and depending on the circumstances can produce a variety of sometimes-opposing outcomes. This is readily illustrated by reviewing a random sampling of recent 2011 cases from the Ontario Supreme Court of Justice:
• In the very recent Ontario decision in Zacharias v. Zacharias, the new husband was held liable to pay child support in relation to the two children of the wife’s former relationship, even though she was receiving more than $1,000 per month from the children’s biological father. Despite receiving this money, the mother was still in financial hardship; more importantly, the new husband had demonstrated that he was standing in place of a parent to the children. He had listed himself as their emergency contact, had taken a parenting course, had toilet trained them, taught them to ride bikes and enrolled them in sports activities, and had declared himself as their father during his wedding to their mother.
• In Andela v. Jovetic, the wife and her new husband lived together for about 8 years in a common-law relationship. Both had two children from previous marriages. The court found that the new husband had no settled intention to treat her children as his own, and the children did not see him as such: they never called him “dad” or used his surname, tolerated his presence in their lives only begrudgingly, and had no contact with him after separation. The new husband was therefore not liable for their support.
• In Nabigon v. Lavalee, the question arose as to whether the new husband was responsible for supporting the wife’s son after they separated, in addition to their own biological child. At the time when they first started living together, the boy was 5 years old and a few years later they executed a separation agreement indicating that there was only one child of the marriage, and that three would be no provision for custody, access or support for the wife’s child. Despite this agreement, the court reviewed the new husband’s involvement with the boy (which included his attendance at the boy’s football games, the boy’s use of the new husband’s surname at high school and college, and new father communicating with the boy on Facebook and beginning the message with “Hey son”). It found that the new husband had indeed assumed support obligations towards the boy.
As these cases illustrate, there is no standard answer to the question of whether a new live-in partner will assume responsibility for supporting the children of his or her spouse if that second relationship fails; the outcome will depend on the facts of each case. At Russell Alexander, Family Lawyers we can provide situation-specific advice as to any support obligations that may arise in these scenarios. For more information, visit us at www.RussellAlexander.com
For the full text of the decisions, see:
Zacharias v. Zacharias, 2011 ONSC 2176
Andela v. Jovetic, 2011 ONSC 892
Nabigon v. Lavalee, 2009 CarswellOnt 2092