Do I have to Pay Child Support for my Step Kids?

Recently Vancouver family lawyers were reminded that not only parents but also step-parents may be responsible for supporting their step kids after divorce. In EZ v. PZ, 2017 BCSC 375, Justice Baird heard a case in which the mother and purported father were married at the time that the mother gave birth to a child fathered by a different man than her husband.

The parties started living together in 2004, were married in 2006, separated in 2012, and divorced in 2014. In 2014, the mother took the sole child of the relationship and moved from Ontario to BC. The purported father did not have any contact with the child after 2014.

Under Canadian law, a child has the right to be supported by his parents. There are no questions about that. It is black and white. The question that was raised in this case, and where some grey areas arise, is when the court considers who qualifies as a “parent” and as a result has an obligation to support his child. The Divorce Act in Canada provides that even if you are not a biological parent of a child, if you “stand in the place of a parent”, then you may be held responsible for supporting the child.

What does Standing in the Place of a Parent Mean?

The Supreme Court of Canada addressed what “standing in the place of a parent” means in the case of Chartier v. Chartier, [1999] 1 SCR 242. In that case, the Supreme Court of Canada confirmed that the best interests of the child is the most important factor when deciding who stands in the place of a parent. In determining whether someone stands in the place of a parent, the court found that while the intention of the parent might be a relevant factor it should only be considered as one factor and in light of all other factors.

Since Chartier, the BC case of TA v. RCA [1999] BCJ No. 1382 looked at the same issue. In that case, a man testified that he married a woman solely because he believed her child was biologically his. The judge focused almost entirely on the man’s intention and found that because the man did not intend to stand in the place of a parent to a child fathered by someone else, he did not stand in the place of a parent and no child support should be ordered.

Test is not the same as “Loco Parentis”

In EZ, Justice Baird states that he believes the judge in TA was wrong. He goes behind TA and reviews what was said by the Supreme Court of Canada in Chartier as follows:

[21] Thus, the problem with the T.A. decision is that, while purporting to follow Chartier, the chambers judge applied the outmoded doctrine of loco parentis, which Bastarache J. called “a creature of 19th century patriarchy” (para. 18), and failed to give the words “in the place of parent” a separate, independent, modern, and purposive definition that Chartier required. The court’s language about this was very direct at para. 39:

Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan was dependent on the common law approach discussed earlier. It was wrong.

[Emphasis added]

Must Consider All Factors (mistake of fact is just one)

Justice Baird goes on to review a Nova Scotia Supreme Court decision in GNP v. LAG, 2001 NSSC 165, stating that he agrees with the application of Chartier in that case. He reviews that case as follows:

[23]         G.N.P. involved twin boys born during the supposedly monogamous marriage relationship of the parties. As in the present case, it turned out that the twins were the product of an extramarital liaison, this one pursued by the mother while her husband was at sea on a fishing boat. Boudreau J. thought it likely that the mother knew all along that the husband was not the father, but she kept it to herself. In the result, the husband, blissfully ignorant of the true state of affairs, stood in place of parent to the two boys for over a decade. In the end, the bond between them was so strong that the husband wished to carry on seeing, guiding, and caring for the boys as before, albeit merely as a friend or a mentor to them.

[24]         On these facts, Boudreau J. found at para. 23 as follows:

There can be no conclusion but that Mr. G.N.P. was de facto the parent of these twin boys during the entire marriage and for some considerable time after the separation. Some ten years. He fulfilled that role completely because he thought he was the boys biological father. There could be no more complete father and son relationship. I find that, according to Chartier, that alone would necessitate a finding that Mr. G.N.P. stood in the place of a parent to these children. But even if I were in error in coming to that conclusion, I would find that Mr. G.N.P. continued to fulfill the role of father even after he had some doubts about his paternity, and even after a D.N.A. test confirmed he was not the biological father. Mr. G.N.P. has testified he wants to continue a close relationship with the boys, but he says he cannot continue as a father, rather as a friend. He therefore wants and requires access rights to the boys. All of these circumstances lead me to find that Mr. G.N.P. stands in the place of a parent as intended by the Divorce Act. To rule otherwise in these circumstances could set a dangerous precedent for significant upheaval in well and long established family support situations.

On the facts in EZ, Justice Baird finds that the purported father stood in the place of a parent and was required to support the child by law.

Support is not always Appropriate

But that is not where it ends. After making that finding, Justice Baird went on to consider his discretion for how much support would be payable. For the following reasons, he decided that no child support was appropriate in the circumstances:

1. When the child was born, the purported father believed the child was his;
2. The purported father is named on the child’s birth certificate;
3. The purported father treated the child as his own son during the short time that they lived together as father and son;
4. The two have been estranged since the parties’ separation;
5. They were separated when the son was very small so it is unlikely the child formed any durable expectations of the purported father;
6. The father’s only involvement was based on a serious and fundamental misapprehension of fact; and
7. There was no evidence about the child’s real father, what his means are, what the child’s mother’s new spouse’s income is;

Justice Baird finalizes the case as follows:

[37]         I am by no means satisfied that, in all the circumstances, it would be in the least bit just, appropriate or fair to order that the respondent should bear the full responsibility for supporting the child. In light of the complete absence of evidence concerning the means and circumstances of other parents who owe a legal duty to meet the needs of the child, in fact, and having taken into account all of the factors peculiar to this case that I have referred to above as required by Chartier, I consider this to be the sort of case foreseen in Dutrisac where the quantum of the respondent’s support should be reduced to zero.

If you or someone you know is dealing with a situation similar to that in EZ, feel free to contact us for a free case evaluation.