A spouse who stands in the place of a parent to a child can be obligated to pay child support, according to s. 5 of the Ontario Child Support Guidelines ("Guidelines"). The amount a step-parent will be ordered to pay is at the discretion of courts. When exercising this discretion, the court will look to the other provisions of the Guidelines, and to any other parent's obligation to support the child (including biological parents). The approach courts take to calculate the amount of child support owing by a step-parent can vary. They range from apportionment to percentages and top-ups. However, the case law has carved out several principles that courts generally follow in their determination of a step-parents' child support obligations. These principles are described below.
Primary Child Support Obligation of the Biological Parent
The Ontario Court of Appeal in Wright v. Zaver, 59 OR (3d) 26 [2002] interpreted s. 3 of the Guidelines as placing a primary obligation on the biological parent to pay child support in the amount that is determined by the Guidelines (sometimes referred to as the table amount). The Guidelines determine the quantum of child support based on the income of the payor parent and the number of children to whom support is owed. For the biological parent, this amount is automatically calculated, and cannot ordinarily be negotiated lower due to the presence of a step-parent.
On the other hand, the step-parent can argue for a reduction in the quantum of child support payable if a court finds that it is appropriate to do so. The full Guideline amount may be the starting point for the court's determination, but the step-parent can rebut the supposition that they owe the full table Guideline amount with compelling evidence that the Guideline amount would be inappropriate (Kobe v Kobe, [2002] OTC 186 [ONSC]). Regardless of the approach taken, the Guideline table amount will likely still serve as an upper limit for the step-parent's support obligation.
Step-parent's Child Support Obligation is in Addition to Biological Parent's Obligation
If a court orders a step-parent to pay child support in accordance with the Guidelines, the biological parent's support obligations are still not displaced. It is at the discretion of the court to determine what additional amount would be appropriate for the step-parent to pay. In most cases, it is unlikely that courts will find it appropriate to award a "windfall" to the support recipient resulting from collecting the full amount of child support twice: from the biological parent and from the step-parent. It is also unlikely that the court will grant this accumulated child support obligation from all parents when this would lead to a standard of living beyond one the child has previously enjoyed. However, if the child support payable by the biological parent is not enough to provide the child with the standard of living enjoyed previous to their parent's separation, the step-parent may be obliged to top up the amount paid by the biological parent or pay the full Guideline amount, where the biological parent is unable to pay at all, or cannot be located.
Children First Objective
It is important to keep the objectives found at section 1 of the Guidelines in mind. These include that a "fair standard of support" and "reduction of conflict between parents" are relevant to the determination of appropriate support by a step-parent. The legislation and courts set out to provide a degree of certainty for parents sorting out their affairs after a separation. However, primacy is given to the standard of living the child enjoyed when the parents were still living together, and the best interests of the child, in accordance with the "children first" perspective of the Guidelines.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
