Court Cases & Orders

“Father and Son” Photo Helps Establish Support Obligation Toward Step-Child

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

“Father and Son” Photo Helps Establish Support Obligation Toward Step-Child

There are a lot of blended families out there.   Divorced parents might go on to find new long-term partners, and bring children into the relationship with them as part of the “package”.  If those subsequent relationships later fail, it raises legal questions around whether those second partners have any financial support responsibilities towards children who have not been formally recognized as their own (i.e. through the adoption process).

In Canada, the law on this area has developed the concept of in loco parentis, which is the Latin term meaning “in the place of a parent”.  Under Ontario law, a person who is not a biological parent can nonetheless have duties toward a child in some circumstances, subject to stated tests.   For example, under the Family Law Act, the concept of “parent” for various legal purposes – including financial support in some cases – is one who has demonstrated a settled intention to treat a child as a child of his or her own family.

In a recent case called Spry v. Shetler, the court clarified the concept of in loco parentis, and confirmed the tests that apply for determining whether a person has that status.

The couple lived together for almost 7 years but never married, and had two children together.  When they met, the woman already had a child from another relationship.   Upon splitting up, they agreed to shared parenting for the children they had together, but a dispute arose as to the man’s responsibility for a child who was not biologically his, but who was about 12 years old at the time of the court hearing.

The woman asked the man for child support, arguing that he was the only parent the child had ever known.   This is because the child’s biological father had been out the picture since the child was 11 months old.  The woman never pursued the biological father for support, in keeping with their separation agreement at the time. But this was also a conscious choice since the woman did not want him in the child’s life.  He had a spotty work history, had jail time for selling drugs, and a history of drug use himself.  He had made at least two suicide attempts.

Now that her subsequent relationship with the man had also ended, the woman claimed child support only from him, but not from the biological father.   The man had been aware all along that the woman was raising the child without the biological father’s support, and fully supported that stance throughout their time together.

The man now denied he ever stood in the place of a parent to the child, and resisted the woman’s child support claim.  The matter went to court for resolution.

The court focused on the legal signposts to look for, when determining in loco parentis status.   These included looking at whether the man:

  • Represented to the child, the family, and the world – whether implicitly or explicitly – that he was responsible for the child
  • Provided financially for the child (depending on his ability to pay)
  • Disciplined the child
  • Included the child in his extended family the same way he did his other children.

It was also relevant that the child had no relationship with the biological father.

Here, the man had assumed financial responsibility for the child while he and the woman lived together.   He included the child as a “dependent” under his workplace benefits plan.   He participated in the child’s life as a father, attending sporting events, parent-teacher interviews, and doing projects together.

The child publicly called the man “dad”, and they even submitted a “father and son” photo to a magazine in 2018.

In law, the court noted, a person in loco parentis cannot unilaterally withdraw from that relationship.  Nor can the relationship be made conditional, or qualified as to its duration.   Instead, the best interests of the child dictate that, once the parental relationship is established, a child should be able to count on it continuing even if the romantic relationship between the parties deteriorates.

On the historical evidence here, the man fully intended to support the child, and in the court’s view he should continue to do so even though he and the mother had split up.   The court ordered him on a temporary basis to pay the full Guidelines amount for the child and for the two other children he had with the woman.

This did not mean that the absent biological father was off the hook financially, the court added.  He still might have primary financial responsibility for the child.  But the law did not require the mother to go after him first, especially given his unpromising personal circumstances.  The child had a right to support now, and it should come from the man.  And it was he – not the mother – who could go after the biological father later for contribution, if he saw fit to do so.  The court explained:

In my view, the [man’s] position that the court must first determine the absent biological father’s child support obligation before imposing any obligation on him is not correct. If it were, then it would leave [the child] with no support for a considerable time. His biological father is not a party to these proceedings. The biological father has had no contact with [the child] or the [mother] in years. The biological father’s circumstances and ability to provide support are entirely unknown.

To ignore the [father’s] child support obligations, when … he has stood in the place of a parent to [the child] for the past seven years, in favour of ascertaining the support obligations of an absent biological parent first, would not be consistent with the “children first” aim of the Guidelines. Primacy must be given to the child’s standard of living. A child in [the child’s] circumstances ought not be left without support and in a state of complete uncertainty. The [man] cannot unilaterally terminate that relationship.

I also do not accept the [man’s] argument that the [woman] must find and serve the biological father with notice of these proceedings. The obligation to do so is on the person seeking a contribution. In this case, the person seeking a contribution from the biological father for [the child’s] support is the [man].

For the full text of the decision, see:

Spry v. Shetler, 2021 ONSC 603

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, 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. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.