By Lorne J. Fine
You've been married for years to a woman whose child is not your own, and now you're contemplating a divorce. You're aware that the child's biological father is on the hook for child support payments, and you're likely figuring that you can go your own way, secure in the knowledge that your financial obligation to the child ends with the marriage to their mother.
Your family lawyer, however, may take a different view of the matter.
In Ontario, the child support obligations of a step-parent are governed by Section 5 of the Federal Child Support Guidelines. That section sets out the following:
Where a spouse against whom an order for the support of a child is sought stands in the place of a parent for the child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent's legal duty to support the child.
That section has been relied upon by step-fathers in child support cases where the mother has called upon the step-father to provide child support payments for her children. In general, the child support guidelines require that the courts first calculate the parent's income, and then establish a pre-set amount - known as a "table amount" - that determines the parent's ongoing child support obligations on a monthly basis.
For spouses standing in the place of a parent - known as in loco parentis - section 5 of the child support guidelines has been used by child support lawyers to argue that a step-parent should pay less than the table amount in the appropriate circumstances. Basically, in child support cases, the courts are given a broad discretion to determine what constitutes "appropriate circumstances".
The liability of all parents for child support is considered to be joint and several - meaning, that if one of the parents reneges on their portion of the child support payments, the other parent (or parents, where a step-parent is involved) may be called upon to remedy the deficiency in order to ensure that the child enjoys a "fair" standard of living. As the Federal Child Support Guidelines are primarily concerned with the best interests of the child, issues of fairness for the other parents seldom come into play, particularly in family cases where the child's standard of living is at stake. What is "appropriate" under the circumstances really depends on what arrangement works best to ensure that the child's accustomed standard of living is secured.
And then there is the issue of apportionment of child support payment obligations between the natural parents and the step-parent. In general, the courts proceed first by determining the full guideline amounts for each of the natural parents. Then the Court considers the guideline amount for the step-parent. If the "piling" of all three amounts result in a total child support payment that is well over what could be reasonably considered to support the child's standard of living, your family lawyer may very well use section 5 of the child support guidelines in order to argue that it is not appropriate under such circumstances for the step-parent to pay the table amount.
But what if the child, while residing with his mother and step-father, was accustomed to living under a higher standard of living than he was while under the care of both his natural parents when they were married? The British Columbia court in Varga v. Varga weighed in with the following comment:
Where for example the step-parent provided a standard to the children during the period of cohabitation that was materially higher than that which the natural parents can provide by means of their Guideline amounts, a court might find it appropriate to make an order against the step-parent that is designed to provide the higher standard, or something approximating it, 'on top of' the other parents' support.
In other words, the step-father, in such circumstances, might be called upon to "top up" the total amount of the child support payments in order to bring the amount to a level consistent with the child's latest standard of living. Moreover, where one or both of the natural parents are unable to pay any support, the step-father might very well be called upon to pay the full Guideline amount of support for that child.
In the end, how the judges in these child support cases exercise their discretion will depend on the circumstances - as ever, guided by the governing concern for the best interests of the child.
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This article is presented as general information only, for your enjoyment and curiosity, and should in no way be relied upon or considered as legal advice. The author does not, and cannot, warrant that this information will be of benefit to you in any way, as only your family lawyer will be in a position to offer you the appropriate legal guidance and supervision that you may require in circumstances specific to your child support case.
Lawyer Bio:
Lorne J. Fine is a Toronto child support lawyer. Mr. Fine's boutique family law firm provides personalized and devoted attention to clients dealing with sensitive issues of divorce, custody, and child support. His web site may be found at Toronto area residents may reach Mr. Fine for a free initial consultation at lfine@torontodivorcelaw.com or at (416)661-2066.
