Conversations on adoption, family, parentage and the law

Adoption, stepparents and separation: child support when relationships end

Earlier this month, I wrote about the implications a child’s legal status can have on inheritance when a parent dies.  Similarly, a child’s legal relationship to his or her parents can have significant implications when parents separate.

Parents have a legal obligation to support their children.  If a couple separates, the Child Support Guidelines determine who is to pay child support and how much.  Generally speaking, if the children live primarily with one parent, the other parent pays support based on his or her income.  If the parents share parenting time fairly equally, the parent with the higher income is usually required to pay support.

But what if the parent’s child is not legally their child?

Step-parents do not have the same child support obligations as natural or adoptive parents.  If a child is adopted, the legal relationship with the child’s birth parents is severed, and the adoptive parent assumes full legal responsiblities and rights in regard to the child.  In the event a couple adopts a child and then separates, there is no difference in how the law handles the child support issues than there would be if the child had been born to the parents naturally.

Not so with step-parents.   In Canada, if the step-parent is legally married to the child’s parent, the step-parent will be obligated for child support provided he or she stood in the place of a parent (see s. 2(2) of the federal Divorce Act).  If the parties are not legally married, however, only provincial laws apply.  In B.C., this means there are time limits on a step-parent’s obligations.   Under the provincial Family Relations Act— the legislation that applies if the parties are not married– a step-parent will only be obligated to pay child support after separation if they had been contributing to the child’s support for at least one year during the relationship.  In addition, the application for child support must be made within one year of the last time the step-parent contributed to the child’s support.

Married or not, if a step-parent is obligated to pay support, how much they will have to pay and for how long is worked out taking into account the obligation of the child’s natural parent to contribute.

In many situations, these differences between step-parent and legal parent obligations make sense.  But consider scenarios similar to those I mentioned the other week:  families where one of the child’s parents is deceased, and the step-parent has been co-parenting the child for many years.  Or perhaps the child has only ever had one legal parent– the child may have been born to one of the parents through artificial reproductive technology, possibly before the couple began living together.  They may have considered an adoption, or at least a parenting agreement, but never did the paperwork.

If a couple living common law in those circumstances separates and the child’s legal parent delays pursuing child support, that parent could be shocked to discover that the one-year limitation date has passed by the time he or she decides to take legal action.

Unless they have an enforceable agreement with the step-parent that requires them to pay support, the  step-parent may no longer have any support obligation.

Fortunately, in my experience step-parents who have been lovingly involved in the parenting of their step-children will often willingly continue that loving relationship and support the child after separation.  But that is not always the case.  If you are going through a separation, you should obtain legal advice as soon as possible.

 

 

Adoption, step-parents and inheritance: why you need a Will

In B.C. if a parent dies without a will,  any property falling into their estate is divided between their spouse and children.  If they don’t have a spouse, the children receive it all.

But what if the parent’s child is  not legally their child?

The courts have held that a step-child who was  not adopted by the deceased parent will not inherit in these circumstances.  (If you are looking for it in the legislation, it’s called the distribution of an “intestate estate”– where there is no will, the deceased’s parent’s estate is divided between the deceased’s spouse and lineal descendents.  See Part 10 of the Estate Administration Act).

This can have serious implications for families who are waiting for adoption or parentage paperwork to complete, or who have taken a child into their lives but have not taken legal steps to formalize the parent-child relationship.

Consider these scenarios:

A couple marry when one of them is widowed and already has a child.  The step-parent is intimately involved in the raising of that child and considers herself a mother to him;

A woman fosters a boy who then remains part of the family into adulthood.  She considers him a son, but no adoption application is ever made;

A same-sex couple have a child through surrogacy.  One of the men provides the sperm and is named as the child’s father on the birth certificate.  Both of the fathers consider themselves equal parents, but aside from an agreement with the surrogate no other paperwork is done.

In each of these cases,  if the parents die without wills that properly address this issue, these children could be left with nothing– regardless of what the parent may have wanted.   In some circumstances, the child or other family members may have to decide whether or not to pursue potentially expensive and emotionally divisive litigation.

When it comes to estates law, being a parent in act and spirit is not enough.  Even written agreements about parentage may not be enough.

What can address the problem is thoughtful estate planning.   Parents can specify in their wills exactly who is to benefit from their estate and what they are to receive, and, if necessary, document why they are making these decisions. They can also consider using beneficiary designations on life insurance, RRSPs and other plans to ensure their wishes are met.  Estate planning is important for everyone who has children, but it is particularly critical for families in these circumstances.

If you have any doubt as to whether your existing will meets the needs of you and your children, get legal advice.