By Peter Ewanchuk
If you are acting as a step-parent for a child, either in a marriage or as adult interdependent partner (commonly referred to as a common law partner), you may be expected to pay child support if your partner dies.
The federal Department of Justice (DoJ) notes that “once a step-parent relationship has been established, the obligations of that step-parent towards the children are similar to those of the natural parents … judges [can] set a child support amount they consider appropriate. When making this decision, judges must take into account the amount set out in the child support tables and the legal duty of any parent other than the step-parent to support the children."
Under the Federal Child Support Guidelines, a judge can decide that a person who is not a parent but who has stood in the place of a parent (sometimes called in loco parentis) can be ordered to pay child support. In some provinces, judges are left to determine if someone is standing in place of a parent, but legislation in Alberta is more precise.
Act spells out who is a step-parent
In the Alberta Child Support Guidelines there are clear rules establishing when a person stands in the place of a parent and must pay child support. The guidelines refer to the province’s Family Law Act, which defines a person standing in the place of a parent as a person who:
- is or was the spouse of the mother or father of the child or who is or was in a relationship of interdependence of some permanence with the mother or father of the child;
- and has demonstrated a settled intention to treat the child as the person's own child.
The Act states what factors should be considered to see if a person has treated a child as their own. These include:
- the child's age;
- the duration of the child's relationship with the person;
- the child's perception of the person as a parental figure;
- the extent to which the person is involved in the child's care, discipline, education and recreational activities;
- any continuing contact or attempts at contact between the person and the child if the person is living separate and apart from the child's father or mother;
- whether the person has considered applying for guardianship of the child, adopting the child or changing the child's surname to theirs;
- the nature of the child's relationship with any other parent of the child; and
- any other factor that the judge considers relevant.
Simply stated, if a person has lived with a child for a number of years and has helped support the family, they will likely be deemed to be liable for child support if the other partner dies.
The federal Divorce Act also defines “a child of the marriage” (a child eligible to receive child support) as a child of two spouses or former spouses, and includes "any child of whom one is the parent and for whom the other stands in the place of a parent."
Guidance from the Supreme Court
The 1999 case of Chartier v. Chartier is often cited in judgments involving the support obligations of step-parents. It states, “A determination of whether a person stands in the place of a parent must take into account all relevant factors, viewed objectively. The court must determine the nature of the relationship and do so by looking at a number of factors, including intention … 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 child of the marriage.”
It adds that some of the relevant factors in defining the parental relationship are:
- if the child participates in the extended family in the same way as would a biological child;
- if the person provides financially for the child;
- if the person disciplines the child as a parent;
- if the child, and others, believe that they have the responsibility as a parent; and
- the nature of the child’s relationship with the absent biological parent.
“Once it is shown that the child is to be considered, in fact, a child of the marriage, the obligations of the step‑parent towards him or her are the same as those relative to a child born of the marriage,” the judgment reads.
How child support is calculated
According to the Department of Justice, “the process for determining the child support amount when there are step-parents is not set out clearly in federal, provincial or territorial legislation. The Federal Child Support Guidelines, for example, currently allow judges to set a child support amount they consider appropriate. When making this decision, judges must take into account the amount set out in the child support tables and the legal duty of any parent other than the step-parent to support the children.”
The DoJ states that when determining how much support a step-parent should pay under both the federal and provincial legislation, judges will:
- divide the expenses related to the children among all the paying parents, according to the ability of each to pay;
- add the incomes of all the paying parents then find the child support table amount for that figure, and then split that amount among the paying parents, based on the percentage each earns;
- match the percentage they owe to the role each parent plays in the children’s lives; or
- have each parent pay the table amount for their income level.
In Alberta, families and courts can reference the Alberta Child Support Calculator. It can be used to determine the base amount of child support that a paying parent should provide on a monthly basis. Information accompanying the calculator notes, “You can safely assume that the amount calculated by child support calculator Alberta will generate a number almost perfectly in line with the Federal Child Support Guidelines for Alberta.”
The government also encourages parents to seek the advice of legal counsel to arrive at equitable support payments, noting: “The Alberta child support calculator is here for informative purposes only. It is not intended in any way to replace the advice of a qualified legal professional. For more information on Alberta child support and family law actions, as well as the procedures of Alberta’s Courts, you should contact a lawyer.”
Step-families in Canada
According to Statistics Canada, 12 percent of couples with children were step-families in 2021, meaning that their family included at least one biological or adopted child whose birth preceded the current union. This proportion has been stable since data on step-families were first collected in the 2011 Census.
Among couples with children, those living common law were more than four times as likely to be step-families (31 percent) as their married counterparts with children (seven percent).
Among couples with children, stepfamilies were considerably more common for same-gender couples (39 percent) than for different-gender couples (12 percent), transgender couples (16 percent) or non-binary couples (22 percent).
In almost three-quarters (74 percent) of stepfamilies composed of same-gender, transgender or non-binary couples, all the children in the family were the biological or adopted child of only one spouse or partner in the couple. This share was relatively lower among stepfamilies composed of two cisgender persons of different genders (62 percent).
Call us for assistance
The amount of child support you may be required to pay to a step-child, in the event of your partner’s death, will depend on the unique facts of your case. Federal and provincial guidelines can give you some insight into your obligations, but if you are in this situation, you will benefit from legal counsel. We offer a free 15-minute telephone or video consultation where we can discuss your case and explain your options. Contact us today for an appointment.