Ottawa Divorce .com Forums

Ottawa Divorce .com Forums (https://www.ottawadivorce.com/forum/index.php)
-   Divorce & Family Law (https://www.ottawadivorce.com/forum/forumdisplay.php?f=3)
-   -   cs and s7 obligations (https://www.ottawadivorce.com/forum/showthread.php?t=9255)

06nomad 05-11-2011 03:26 PM

cs and s7 obligations
 
Hi

I have a senreio that i was looking for some input.

Couple married/living together for 4 years. Spouse'A' has acess to two children about 35-40% of the time. Spouse 'b' treats children as if they were their own, acted in a parental role and children called spouse 'b' as mom or dad.

Couple split up. Does spouse b have any cs or s7 ect obligations to those children? Spouse A, is already paying cs to child's natural parent.

HammerDad 05-11-2011 03:39 PM

The spouse of the NCP has no obligation for c/s to the NCP's children. My fiance and I had this conversation yesterday and I explained that there is virtually no scenario where she would be responsible for c/s (save and except should I ever become the CP and THEN we divorce some time afterwards).

Maybe, in the slightest scenario, where there is 50/50, it MAY be determined there is some obligation. But it would be an uphill battle argument to show entitlement.

WorkingDAD 05-11-2011 04:02 PM

Quote:

Originally Posted by HammerDad (Post 66655)
The spouse of the NCP has no obligation for c/s to the NCP's children. My fiance and I had this conversation yesterday and I explained that there is virtually no scenario where she would be responsible for c/s (save and except should I ever become the CP and THEN we divorce some time afterwards).

Maybe, in the slightest scenario, where there is 50/50, it MAY be determined there is some obligation. But it would be an uphill battle argument to show entitlement.

Are you sure HD? I saw several cases about step-parent has to pay CS if proven that he treated children as his own ...

Ontario's Family Law Act leaves much more to debate by defining a parent as:

"parent includes a person who has demonstrated a settled intention to treat a child as a child of his or her family."

This option is a substantial disadvantage to step-children (but a bonanza for lawyers), as it requires a person, usually poor to begin with, no option in the face of a reluctant ex-step-parent, but to litigate.

The federal Divorce Act also invites litigation by defining child of the marriage using these words:

"...a child of two spouses or former spouses includes any child for whom they both stand in the place of parents, and any child of whom one is the parent and for whom the other stands in the place of a parent."

Of course, to invoke the Divorce Act, there would have to necessarily be a separation between the natural parent and the spouse, alleged step-parent. This is not necessarily so with provincial legislation.

In Chartier, based on the open-ended wording of the Divorce Act, Canada's Supreme Court wrote that a step-parent cannot unilaterally end an in loco parentis relationship (and thus avoid his/her child support liabilities):

"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 court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. 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 member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person 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 or existence of the child’s relationship with the absent biological parent....

"Nevertheless, not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts and it must be established from the evidence that the adult acted so as to stand in the place of a parent to the child.

"Even if a relationship has broken down after a separation or divorce, the obligation of a person who stands in the place of a parent to support a child remains the same. Natural parents, even if they lose contact with their children, must continue to pay child support."
One curious feature of all this odd mix of differing family laws is that there is no theoretical limit to the number of step-parents from whom a step-child may be able to extract child support.

From time to time, a renegade court decision rears its head and pronounces that a natural obligation to pay child support outweighs an in loco parentis obligation (Re Spring and Spring)

Or that in loco parentis support is time-limited. In Bradbury v Mundell, step-parent child support was held to be limited to five years.

These types of cases led to the 1995 Child Support Guidelines which provide, at §5:

"Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child."
A step-child need not look to his/her natural parent first before claiming support from a step-parent. But a step-parent facing a child support claim would have to strongly consider joining in as a co-defendant a natural parent.

Given the wording of the Guidelines, and as to the quantum of child support in a step-parent situation, Justice Preston got it right when, in rejecting a claim for step-parent child support, he said, in Russenberger:

"The appropriate child support order is a matter of (judicial) discretion.
"Recognition of the primary obligation of biological parents for the support of children is inherent in the structure of the Guidelines and the Family Relations Act. Determination of the appropriate child support obligation of a parent who stands in loco parentis must be made in light of all of the circumstances of each individual case."

In Russenberger, the court also enumerated a series of relevant facts that serves as a good base to a step-parent child support analysis.

Another good example of how these claims can pan out in real life is H v H in which Justice MacKenzie refused an application for step-parent support where the relationship had been short; the proposed Payor already paid support for two children of a previous marriage; he had a modest income; the biological father was paying child support; and the mother had medical and dental coverage for the child.

HammerDad 05-11-2011 04:29 PM

The step-parent would have to be the spouse of the CP AND have acted as a parent to the child.

There is no entitlement of an NCP's spouse to pay child support. If that were the case, then who would the step parent pay CS to? The NCP themselves (effectively subsidizing the NCP's c/s obligation and then there is the question of would that be treated as income to the NCP and thus increasing their obligation to the CP). Or would the step parent have to pay c/s directly to the CP whom they never had a relationship with and are not party to any agreement or court order?

The only instances where new spouses/step-parents of NCP's income is figured into c/s is in the event that NCP claims undue hardship. Otherwise there is court case after court case that has determined the incomes of the NCP's spouse is not factored into determining the c/s obligation of the NCP.

WorkingDAD 05-11-2011 04:32 PM

May be I do not understad clearly what situation is about. After secor read I see what I missed...

My apology. You are right as always. (except that Avalange truck:cool:)

HammerDad 05-11-2011 04:46 PM

Quote:

Originally Posted by WorkingDAD (Post 66662)
May be I do not understad clearly what situation is about. After secor read I see what I missed...

My apology. You are right as always. (except that Avalange truck:cool:)


lol, no worries. :D


All times are GMT -4. The time now is 08:47 AM.