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.