Child Support - Who is Responsible?

Who is Responsible for Child Support?

Child support may be claimed under the DA or the FLA, or under both where the parties are married. Orders for child support may be under s. 15.1 of the DA or s. 149 of the FLA.

Divorce Act Provisions

Under s. 15.1 of the DA, either spouse may apply for an order that child support be paid for the benefit of any or all children of the marriage. As set out in s. 2 of the DA, a “child of the marriage” is a child of the two spouses or former spouses who at the material time is under the age of majority and who has not withdrawn from their charge, or is the age of majority or over but unable by reason of illness, disability, or other cause to withdraw from their charge. “Other cause” has been interpreted liberally to include adult children attending post-secondary school as well as those suffering from a disability. Spouses who stand in the place of a parent are also subject to an order for child support under s. 2(2) of the DA.

Family Law Act Provisions

Section 146 of the FLA defines the terms “child”, “guardian”, “parent” and “step parent”. For the purposes of the child support sections, a guardian does not include a guardian who is not a parent and whose only parental responsibility is respecting the child’s legal and financial interests.

Section 147 of the FLA defines when there is a duty to provide support for a child and specifically addresses guardians who are not parents and step parents.  Section 147 also addresses situations where children under the age of 19 are no longer dependent on their parents and where child support is or is not payable.

The court may make orders for child support pursuant to s. 149 upon the application of a child’s parent or guardian, the child or a person acting on behalf of the child, or the Ministry responsible for social assistance.  This section also limits the application of an order against a step parent.  If you find yourself with a file involving step parents, carefully refer to these sections and research to see if there has been any judicial consideration of these sections.

Section 150 of the FLA notes that the amount of child support must be determined in accordance with the Child Support Guidelines.

Section 152 of the FLA describes the circumstances under which the court may change, suspend or terminate an order respecting child support.  It expressly provides for retroactive variation of child support orders and the order may be made if there has been a change in circumstances, if new evidence has become available that was not available during a previous hearing, or if evidence of a lack of financial disclosure by a party was discovered after the last order was made.

Community Discussion

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The potential liability of a step-parent raises some interesting issues.  The FLA prioritzes biological or adoptive parents over step parents in terms of child support obligations. I have a case where the biological father claims he cannot pay child support because he suffers from a mental disability.  He is unemployed and his mental health issues do impact on his employability.  A 2009 Order makes child support reviewable this year.  His current spouse, from whom he recently separated, earns a significant amount of money.  The language of the FLA suggests that (1) because she is separated from the biological father, (2) has supported her step-children for the year before separation, and (3) we commenced an action within one year of her separating from the biological father, she may be liabile to pay support for her step-children.  As noted above there is no case law on the issue of step-parents under the FLA.