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Step-Parents and Family Law: Custody, Access and Support

4 minute read

I am frequently asked about the rights of step-parents and children in family law. Step-parents themselves are concerned to know whether or not they must give up on children who they have often come to know and love. Biological parents are concerned to understand what role, if any, their former partners will have in their children’s lives moving forward.

While the rights of step-parents are not the same as those of biological parents, Canadian law recognizes the rights and obligations of step-parents. This has impacts on custody and access matters as well as child support.

The Law on Step-Parents

The Divorce Act, which governs both child support and custody matters in cases where family law litigants are married to one another, defines a “child of the marriage”. This definition includes “any child of whom one is the parent and for whom the other stands in the place of a parent”. “In the place of a parent” means a step-parent who has acted as a parent to the child at issue.
The Family Law Act, which governs child support matters in cases where a family law litigants are not married to one another, similarly defines a “child” to include a “person whom a parent has demonstrated a settled intention to treat as a child of his or her family”. Again, this means a step-parent who has demonstrated such intent.

The Children’s Law Reform Act governs custody and access matters in cases in Ontario where family law litigants are not married to one another. It permits parties other than the parents of the children to bring applications for both custody and access of those children. This includes step-parents.

Taken together, the relevant legislation allows step-parents to make claims for custody, access and support of their stepchildren and permits biological parents to make such claims against step-parents.

The question of whether a given step-parent did in fact “stand in the place of a parent” or “demonstrated a settled intention to treat a child as his or her family” is answered after a thorough examination of the relationship between the stepparent and the stepchild. Such considerations include:

  • Did the step-parent have responsibility for disciplining the child?
  • Was the step-parent involved in the child’s schooling and medical matters?
  • How did the family represent the relationship between the step-parent and step-child
  • How did the step-parent and step-child act towards one another?

An understanding of facts such as these help lawyers and, if need be, judges to understand the nuances of the relationship between the step-parent and step-child and determine whether the relationship meets the definitions in the legislation.

If a step-parent stood in the place of a parent or demonstrated a settled intention to treat the child as his or her family, that parent has similar rights and obligations to their step-children as a biological parents have to their children.

Custody and Access

Biological parents need to understand that it is not a given that they will obtain custody of their children in preference to the children’s step-parents. If a court determines that it is in a child’s best interest, a step-parent can be given sole custody of a step-child, even in the face of a biological parent arguing that access should be terminated altogether.

Step-parents who are considering bringing applications for custody and access must fill out different court paperwork than biological parents. They are under an obligation to obtain a police records check as a component of their application.

Given the fact-specific nature of the test for the definitions of parents and children under the legislation and the nuances of the application itself, step-parents are well-advised to seek legal advice before commencing an application.

Support

Step-parents who stood in the place of the parent, or have demonstrated a settled intention to treat the child as his or her family may bring claims to receive child support, or may have claims for child support brought against them.

However, the amount of child support paid by step-parents for their step-children may not be the amount indicated in the Child Support Guidelines (as is the case for most biological parents). Instead, the Court will determine the appropriate amount of child support to be paid in light of the amount which the child’s other biological parent is contributing. While there is no set formula, the overriding concern of the courts is to both ensure that the child is adequately provided for and that the child-support recipient does not receive what amounts to a windfall by obtaining full support from both the child’s other biological parent and the step-parent.

Conclusion

Family law negotiation and litigation involving children are complicated even in what appears to be the most uncomplicated of cases. Where one of the parties is a step-parent, matters become a further complicated because of the particular laws relating to step-parents and step-children.

While obtaining independent legal advice is always recommended to parents who have separated, it is especially important to ensure that both biological parents and step-parents understand the rights and obligations of step-parents following a breakdown of the relationship. A step-parent’s role in a child’s life rarely ends just because the step-parent’s relationship with the child’s biological parent does.

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Jordan McKie

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