In today’s society where blended families are the norm rather than a rarity it is very common for a child to have one or more step-parents, but what happens when a parent and a common law partner end their relationship?
In Chartier v. Chartier, 43 R.F.L. (4th) 1 (S.C.C.) the parties began a common-law relationship and later married. The parties had one child together and separated almost three years from the date of their initial cohabitation. The applicant had one child from a previous relationship. The applicant requested child support for both children. The respondent denied any obligation to pay child support for his non-biological child.
The court found that “The obligation to support a child arises as soon as that child is determined to be “a child of the marriage”.” “The issue of contribution is one between all of the parents who have obligations towards the child, whether they are biological parents or step-parents; it should not affect the child.”
In Land v. Atchison 2005 CarswellOnt 372 the applicant and respondent had never married, but lived in a common-law relationship for quite some time. The applicant mother had two children from a former marriage. The mother brought an application for interim child support for the two children and other relief.
The Applicant mother claimed that when the parties lived together the respondent acted in loco parentis to her two children. In other words, she claimed that the respondent “acted in place of a parent” and therefore should pay child support for the children.
For the court to order the non-biological parent to pay child support for a non-biological child, the party requesting the support must provide evidence that the non-biological parent acted in place of a parent for the child(ren).
In both cases mentioned above, the court ordered that the non-biological parent acted in loco parentis to the children and were ordered to pay child support.
The Courts consider the following criteria to determine if a non-biological parent acted in loco parentis to a child:
- The step‑parent’s intent to treat the child as a member of his or her family;
- The extent of the child’s participation in the newly‑formed family;
- The nature and extent of any discipline imposed by the step‑parent;
- Did the step‑parent show the child, family and others that he or she was responsible for the child.
- The nature of the child’s relationship with the step‑parent;
- Does the child refer to the step‑parent as “dad” or “mom”;
- To what extent the biological parent has been a part of the child’s life, whether personally and financially relationship to the child; and
- Whether the step-parent has been financially support the child.
The court has also determined that a step‑parent’s attempt to unilaterally terminate the relationship with a step‑child does not mean that he or she is not obligated to pay child support.
Accordingly, it must be remembered that relation by biology is not necessary to establish a finding of parenthood, and that the relationship between a common law spouse or other romantic partner and a child is more important than any relation by blood in establishing whether a child support order can be made.
