We’ve already determined in a previous post that child support refers to when parents are legally obligated to financially support their children and is governed by the Federal Child Support Guidelines. According to Alberta’s Family Law Act, the obligation that every parent must pay child support extends to those who are considered in loco parentis or “standing in the place of a parent” to a child. This legal concept usually comes into play in the case of step-parents to a child from another relationship.
The test for whether a person is standing in the place of a parent is contained within section 48 of the Family Law Act, as well as the Supreme Court case of Chartier v Chartier ( 1 SCR 242).
But let’s assume you are separating from your spouse who has a child from another relationship, and it’s already been determined that you are standing in the place of a parent to your step-child. Your spouse’s ex, the child’s other biological parent, is paying child support for the child already.
Here are just a few questions and answers to some common questions:
Do I Still Have to Pay Child Support?
The Alberta Court of Appeal in Theriault v Theriault (1994 ABCA 119) was of the position that once a person is found to be standing in the place of a parent, the power of the court to order child support is triggered. The Court commented that a step-parent’s obligations are not terminated once the relationship with the child’s biological parent dissolves. The Supreme Court in Chartier stated that a step-parent’s obligation to pay child support should be assessed independently of a biological parent’s. Essentially, this means that you can be ordered to pay child support for your step-child even if their biological parents are already financially providing for the child.
How Much Do I Have to Pay in Child Support?
The Guidelines state that where a person is found to be standing in the place of a parent, the court will order a child support amount it considers “appropriate” by having regard to the Guidelines and any other parent’s legal obligation to support the child. Under this provision, the court has the discretion to determine the apportionment, if any, of the child support payable by the biological parent and the person standing in the place of a parent. However, it is important to note that in Alberta, the Family Law Act states that the obligation of a biological parent to pay child support outweighs the obligation of a person standing in the place of a parent.
The court in the case of Zacharias v Zacharias (2011 ONSC 2176) has commented that different courts have employed various methods for determining the amount of child support payable by step-parents and biological parents. There is a lack of consistency and clarity on which approach is best.
In Alberta, that is indeed the case. The courts have employed the following methods when apportioning child support by multiple payors:
- Top up amount for step-parent: This approach appears to be the favoured one among courts in Alberta. The Alberta Court of Queen’s Bench in Reis v Thompson (2009 ABQB 156) considered the standard of living the child had become accustomed to since the step-father entered its life. Since the step-father had increased the child’s standard of living from what the child enjoyed with the biological father, the step-father could not walk away from his child support obligations. However, the court made a point of stating that the child should not receive more than they would if only one parent was responsible to pay support. In this particular case, the biological father was ordered to pay the full Guideline amount of child support corresponding to his income level. Since the step-father earned more than the biological father, he was ordered to pay a small “top-up” amount that was the difference between the step-father’s and biological father’s Guideline amounts of child support.
- 50/50 sharing of step-parent’s Guideline amount: In JS v DS (2005 ABQB 4), the Queen’s Bench determined the amount of child support based on the step-father’s income but ordered that the biological father bear half the burden of paying that amount.
- Proportionate sharing based on total incomes: In the case of Holmedal v Holmedal, the Queen’s Bench determined that the step-father and biological father pay a proportionate share of their respective child support obligations. The proportion was based on both fathers’ total incomes. Since the biological father earned two-thirds of the total income of both fathers, he was ordered to pay two-thirds of his total child support obligation.
Ultimately, the amount of child support you may be expected to pay to a step-child you are standing in the place of a parent for will depend on the unique facts of your case. Depending on these facts, you may be ordered to pay the entire Guideline amount of child support, a portion of it, or none at all.