Legal Issues in family law by Jim Herbert

A new decision of the Supreme Court of Canada defines the obligations of step parents. In a nutshell, the case says that a step parent cannot walk away from a step child, any more than a natural parent can.

Charter v. Chartier (unreported, reasons released January 28, 1999) was a decision involving a Manitoba couple. The husband and wife lived together starting in 1989 and married in 1991. The wife had a child from a previous relationship, Jenna. The husband and wife then had their own child.

The husband assumed the role of father to Jenna during the marriage. The husband and wife led her to believe that he was her natural father. At one point, they submitted false documents to a government office to get a birth certificate for Jenna in the surname of the father.

The husband and wife separated in 1992. The husband had visits with Jenna and the younger child for a while but these visits stopped, and never resumed.

The husband took the position that he should not have to pay child support for Jenna as he was not her natural parent and he had no relationship with her.

The husband was successful at trial and before the Manitoba Court of Appeal, but this was reversed by the Supreme Court of Canada. The case involved an interpretation of section 2 (2) of the Divorce Act, which extends child support obligations to persons "who stand in the place of a parent." The question was: can someone who stands in the place of the parent terminate that relationship, and thus eliminate the obligations which go along with the relationship. The Court said no.

The Court ordered the husband to pay $200 per month on a temporary basis, with the final amount to be set by the Manitoba courts.

So how does one come to "stand in the place of the parent"? The following factors are important:

• does the child see the step parent as a parent?
• does the step parent assume the role of parent to the child?
• does the step parent live with the child in a family unit?
• does the child participate in the step parent's extended family?
• does the parent discipline the child?
• does the child have a relationship with the natural parent?

What about the possibility that this ruling could discourage people from remarrying and getting involved with their new partners' step children? This was argued by the husband: people will be fearful of child support and will shy away from new relationships.

The Court disagreed. Quoting from an earlier Ontario decision, the Court said that a rule that allowed step parents to walk away from step children would encourage "superficial generosity" towards step children which lasted only as long as the relationship between the spouses. Children would feel "rejected and shattered" when the relationship ended and the support stopped. If the decision discouraged this type of behaviour, that was not a bad result.

Many step parents entering relationships will probably try to protect themselves from child support claims through marriage contracts. This will probably fail as the court always has the right to set aside agreements contrary to the interests of the children.

Jim Herbert is a lawyer practising in Toronto and can be reached at 416-351-0005 and he can be e-mailed at: jherbert@sympatico.ca.

back to articles menu