Liability of a step-parent for child support if the partner dies in British Columbia
There are many step-families across British Columbia where either the mother or the father is not the children's biological parent. But if the blood parent were to die, would the step-parent be liable for child support? The short answer is “yes” in many cases, though a variety of factors must be considered.
Who is a step-parent?
Under BC’s Family Law Act (FLA), a step-parent is “a spouse of the child's parent and lived with the child's parent and the child during the child's life.” The Act also states that the term “‘parent’ includes a step-parent, “if the step-parent has a duty to provide for the child.”
When does a step-parent have to pay support?
The involvement of the step-parent in the lives of the children is crucial. The FLA states that step-parents must pay child support if they contribute to the children's support for at least one year. That would include helping with the cost of housing, food, activities, school costs and clothes.
Keep in mind that a step-parent's responsibility to pay child support comes after the children's parents' or guardians' responsibility.
The federal Divorce Act defines “a child of the marriage” (a child eligible to receive child support) as a child of two spouses or former spouses and includes "any child of whom one is the parent and for whom the other stands in the place of a parent."
It is important to note that the FLA does not impose an automatic liability for child support on step-parents. Instead, that is determined on the facts and circumstances of each case. As part of that consideration, the court may order a step-parent to pay child support even if they are not liable under the FLA.
The legal issues in this area can be complicated, which is why it is recommended that anyone in this situation should obtain legal advice.
What does ‘standing in place of a parent’ mean?
The courts have determined that a step-parent must pay child support if they “stand in place of a parent” (sometimes called in loco parentis) in their relationship with the children. That can be in a marriage or as an adult interdependent partner (commonly referred to as common law) arrangement.
When deciding on whether a step-parent stood in place of a biological parent, judges in British Columbia will often reference Chartier v Chartier, a seminal Supreme Court of Canada decision.
As it notes, “A determination of whether a person stands in the place of a parent must take into account all relevant factors, viewed objectively … the actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a child of the marriage.”
Supreme Court guideline
Some of the factors outlined in the judgement when defining a parental relationship include:
- Whether the child participates in the extended family in the same way as would a biological child.
- Whether the step-parent provides financially for the child.
- Whether the step-parent disciplines the child as a parent.
- Whether the step-parent “represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child.”
- The nature of the child’s relationship with the absent biological parent.
Simply stated, a step-parent who has lived with a child for more than a year and has helped support the family will likely be deemed to be liable for child support if the other partner dies.
The Chartier decision also held that a step-parent’s attempt to terminate the relationship unilaterally with a step-child does not necessarily absolve them from paying child support.
Other court decisions have included the considerations as to whether the child refers to the step-parent by their name or as “mom” or “dad” and the best interests of the children.
The federal Department of Justice (DoJ) notes that “once a step-parent relationship has been established, the obligations of that step-parent towards the children are similar to those of the natural parents … judges [can] set a child support amount they consider appropriate. When making this decision, judges must take into account the amount set out in the child support tables and the legal duty of any parent other than the step-parent to support the children.”
Federal Child Support Guidelines
According to information from the DoJ, “the process for determining the child support amount when there are step-parents is not set out clearly in federal, provincial or territorial legislation. The Federal Child Support Guidelines, for example, currently allow judges to set a child support amount they consider appropriate.”
What is clear is that child support is the legal right of the child, not the parent who receives the support. An agreement that releases a parent from paying child support will not be legally enforceable.
Child support includes basic child support under s.3 of the Guidelines and special or extraordinary expenses under s.7. In most cases, the amount of basic child support that must be paid is determined solely by the Federal Child Support Tables that are part of the Guidelines.
Stepfamilies in Canada
According to Statistics Canada, 12 per cent of couples with children were stepfamilies in 2021. That means their families included at least one biological or adopted child whose birth preceded the current union. This proportion has been stable since data on step-families were first collected in the 2011 Census.
Among couples with children, those living common law were more than four times as likely to be stepfamilies (31 percent) as their married counterparts with children (seven per cent).
Among couples with children, stepfamilies were considerably more common for same-gender couples (39 per cent) than for different-gender couples (12 per cent), transgender couples (16 per cent) or non-binary couples (22 per cent).
In almost three-quarters (74 per cent) of stepfamilies composed of same-gender, transgender or non-binary couples, all the children in the family were the biological or adopted child of only one spouse or partner in the couple. This share was relatively lower among stepfamilies composed of two cisgender persons of different genders (62 per cent).
Contact us for assistance
Though the FLA makes it clear that step-parents who were taking an active role in the lives of the partner’s children may be liable to pay support if their partner dies, each case will be decided on its merits. The law in this area is nuanced and evolving, which is why families in this situation should seek legal counsel. Mills Family Law offers a full array of family law services. Contact us for a free consultation.
