Of all the issues that must be addressed upon the breakdown of a marriage relationship, the payment of child support is usually the most straightforward. The children of the relationship are entitled to child support, which is generally paid by the access parent to the parent with whom the children live or by the higher income earner to the lower income earner in shared parenting scenarios.
However, the payment of child support becomes less straightforward in situations where a divorcing spouse is not the biological parent of one or more of the children. Many people I speak with are under the mistaken impression that if they are not the biological parent of their spouse’s children they will not be required to pay child support for them. While this may be the case, it certainly is not a foregone conclusion and in all cases will depend on the specific circumstances.
Under the definition of a “child of the marriage” in the Divorce Act, a divorcing spouse who is not the biological parent of children can be ordered to pay child support if the spouse has “stood in the place of a parent”. Further, the Supreme Court of Canada has stated that when determining whether a person “stands in the place of a parent” for child support purposes, Courts must determine the actual nature of the relationship between the spouse and the children by looking at a number of factors including:
- Whether the child participates in the extended family in the same was as a biological child would;
- Whether the person provides financially for the child;
- Whether the person disciplines the child as a parent;
- Whether the person represents to the child, family members, or the world, that he or she is responsible as a parent to the child;
- The nature or existence of the child’s relationship with the biological parent; and
- The length of the relationship.
Simply put, whether or not a divorcing spouse will be required to pay child support for children that are not their own will depend on the factual determination of whether or not that spouse has been “standing in the place of a parent” to the children.
If you have any questions about the information included in this article or any other issue related to divorce or separation please contact myself or one of our other knowledgeable family law practitioners for a consultation.
