Child Support – Step-parents in Ontario may be required to pay child support

If your partner has a child, did you know that you may legally be seen as a “parent,” even if you do not marry your partner or legally adopt your partner’s child?

Whether or not a step-parent becomes an unofficial “parent” to a step-child usually is not an issue until the couple breaks up or gets a divorce. After the relationship is over, if a step-parent is seen as a “parent” by the Courts, that step-parent could be on the hook for child support for their former partner’s child. The Ontario Superior Court of Justice recently confirmed that a step-parent “cannot unilaterally terminate that relationship” with a step-child, particularly if doing so would leave the child “without the support and in a state of complete uncertainty.”

This is an area of law where legal advice could be especially helpful, since there is no set formula for determining child-support obligations for step-children. Whether a step-parent is required to pay child support is decided on a case by case basis. 

Step 1: There must be an application for child support

Step-parents in Ontario are not automatically required to pay child support. First someone, typically the child’s parent, must bring an application seeking child support from the step-parent. For such an application, the onus of proof is on the applicant to prove that the former step-parent had a relationship with the step-child that attracts child support.

Step 2: Evaluating the step-parent’s relationship with the child

So what type of relationship will result in a step-parent being required to pay child support? The way that the relationship is described will depend on whether the step-parent was married to the child’s parent, or whether they were dating.

Ontario’s Family Law Act applies to unmarried couples, and it indicates that a step-parent may be required to pay child support if that step-parent “demonstrated a settled intention” to treat the child as a member of the family. 

When married couples split, the Divorce Act applies instead. To determine whether a divorcee may be required to pay child support, the question is whether the step-parent stood in the place of a parent to the child.

Regardless of how a step-parent’s relationship with the child is described, Ontario courts consider one set of factors to determine whether a step-parent is still a parent after the couple breaks up. The factors were set out by the Supreme Court of Canada in a 1999 case – Chartier v Chartier – and they include: 

• whether the child participated in the step-parent’s extended family the way a biological child would; 
• whether the step-parent provided for the child financially; 
• whether the step-parent disciplined the child; 
• whether the step-parent indicated explicitly or implicitly that he or she was responsible to the child as a parent; and 
• whether the child had a relationship with the absent biological parent.

The Courts can also use discretion to consider other factors when examining the relationship between a child and a step-parent. For example, if the child immigrated to Canada and the step-parent gave a sponsorship undertaking, the Court may consider the undertaking. Because the Court has such discretion, each case is truly decided on a case-by-case basis.  

While the Supreme Court’s decision in Chartier v Chartier is over twenty years old now, the factors listed therein are still being applied by Ontario courts today. See, for example, Spry v Shetler, 2021 ONSC 603, where the Court determined whether a boyfriend had to pay child support for his former common law partner’s child, and L.M.A. v P.H., 2014 ONSC 1707, where the Court addressed whether a husband had to pay child support for his ex-wife’s child.

Step 3: Calculating child support

If the Court finds that a step-parent has “demonstrated a settled intention” to treat the child as a member of the family, or stood in the place of a parent to the child, the next questions are whether the step-parent should have to pay child support, and if so, how much child support must be paid and for how long.

For divorcing couples, the amount of child support payable is typically calculated based on the parent’s income using the Federal Child Support Guidelines. The same standards apply to common law couples under Ontario’s Child Support Guidelines. However, under section 5 of both Guidelines, if a step-parent is paying child support in the place of a parent, the Court may use its discretion to order an amount of child support that “the court considers appropriate, having regard to [the guidelines] and any other parent’s legal duty to support the child.” 

Practically speaking, this means that the amount of child support that the Court requires a step-parent to pay could be less than the amount of child support a biological parent pays, or that a step-parent’s child support obligation could be offset against the support obligations of the child’s biological parent. However, the Court does not always take this approach, and may order a step-parent to pay full child support for a step-child, particularly if the child’s biological parent is absent from the child’s life. On the other end of the spectrum, the Court could hold that a step-parent does not have to pay any child support.

When examining the child support obligations of step-parents, the Courts have recognized that there “is a lack of clarity or consistency as to the approach to take.” As a result, it can be difficult to predict how much child support should be paid for a step-child, and how long that child support should be payable.

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