Non-biological parents can face child-support payments, too

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One of the key issues for separating couples with children is how much child support will be paid per month, and by whom. This is not surprising, given that child support may increase over time and how important it is for the well-being of the children of the relationship.

However, what is discussed less frequently are the obligations of non-biological parents following separation. It might surprise you to learn that, in certain instances, non-biological parents may be ordered to pay child support.

A non-biological parent may be a step-parent, but may also include a grandparent. The only requirement is that the non-biological parent must have demonstrated an intention to assume the role of a natural parent to the child or children in question.

This all begs the question: In what instances may a non-biological parent of a child be ordered to pay child support following separation?

The requirement for parents to provide support for their children in Ontario is set out in section 31 of the Family Law Act, and the framework for paying child support is set out in the Federal Child Support Guidelines.

Pursuant to section 31 of the Family Law Act, a parent must provide support for their children. Section 1(1) of the Family Law Act defines a “parent” as follows:

• “Parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

Finally, section 5 of the Federal Child Support Guidelines confirms that an individual who stands in the place of a parent for a child may be ordered to pay child support in an amount considered appropriate by the court, having regard to the Guidelines and any other parent’s legal duty to support the child.

Importantly, there is no requirement for the non-biological parent to have adopted the child. The non-biological parent could be a step-parent but could also be a grandparent. In order to be found to be a parent by settled intention, the person must clearly be shown to have assumed the role of the natural parent and to have substantially substituted for the natural parent’s role.

When determining whether support should be ordered, courts have focused on the following factors:

• (a) If the step-parent and child had a close relationship.
• (b) If the step-parent and the child continue to have a close relationship.
• (c) If the child enjoyed a high standard of living when the step-parent lived with the child/whether the individual provided financially for the child.
• (d) If the step-parent has the means to pay the table amount.
• (e) If the biological parent has a remote relationship with the child.
• (f) If the biological parent does not have a reliable payment history.
• (g) If the parties have agreed to pay a higher amount in a separation agreement.
• (h) If it is a long-standing relationship between the step-parent and the child.
• (i) Whether the child participated in extended family gatherings.
• (j) Whether the individual disciplined the child.

In Stairs v Wilson, 2022 ONSC 3676, Justice Nicholson of the Superior Court of Justice stated “the threshold to be met must be sufficiently high so as not to impose long-term financial obligations on stepparents who are kind and friendly to their stepchildren but not truly acting as their parent.”

If a court finds that the non-biological parent stood in the place of a parent, it will then have to consider how much child support is owed. In situations where the child has a biological parent, their obligation to pay child support will be taken into account, and may off-set the amount of child support found owing by the non-biological parent.

Once an individual has been found to be a parent by settled intention, they have an obligation to provide support. This is the case even where there is no longer a relationship between that individual and the non-biological children as a result of the separation.

Courts have found that parents cannot unilaterally withdraw from the relationship in an attempt to avoid paying child support. In the same decision referenced above, Justice Nicholson noted: “It is the relationship that existed prior to the breakdown of the parties’ relationship that is relevant to the analysis. A parent is therefore not entitled to “backdate” their decision to parent the children based on events following the parties’ separation.” The closeness of the relationship may be a factor that the Court takes into account, but it will not be determinative.

Michael J. Stangarone, Partner, and Juanita Valencia, Associate, exclusively practice family law at Toronto-based MacDonald & Partners LLP.

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