Step-Child Support:  A Penalty for Kindness

Recently, by coincidence, I found myself involved in several cases simultaneously where my clients—all men—were being sued by their estranged wives or girlfriends for the support of children who were not the men’s biological offspring, but only step-children.   

There’s nothing new in this, of course.  For many years, the Divorce Act has imposed support obligations on a divorcing person who “stands in the place of a parent” despite having no biological relationship with the child.   Most provinces have similar laws for step-parents leaving common-law relationships, although the criteria vary.

The average Canadian male doesn’t seem aware of this, however.  My clients were all shocked to learn that being nice to their partner’s kids for a while might have sentenced them to supporting the kids for a decade or two, without any hope of reprieve.  Since the 1999 decision of the Supreme Court of Canada in Chartier v. Chartier,  it has been clear that terminating the relationship with a step-child doesn’t get you off the hook, once you have been found to meet the statutory criteria. 

There’s nothing like having to explain the law to a client to reinforce a lawyer’s own understanding of its rationale.  So I tried to explain the logic behind this policy of step-parent obligations, but no matter how hard I tried, I couldn’t come up with anything persuasive.  I was forced to conclude that the policy is actually rather stupid and cries out to be changed. 

I’m not a big fan of the law on spousal support either, but at least there are a couple of situations where it does justice.  For instance, where a couple has explicitly agreed that the wife will give up her job to raise the kids and maintain the household, then if her husband dumps her, I think he has an obligation to help her get back on her feet financially.  The courts call this the “contractual” rationale.

Then there are cases where a wife has worked at some menial job to put her husband through dental school, on the understanding that he’ll later support her through law school.  If he runs off with his hygienist instead, the so-called “compensatory” model of support seems justified. 

But neither of these rationales applies to the relationship between step-parent and step-child.  When a step-parent bestows time, attention or material goods upon his spouse’s child, the child doesn’t give up any opportunities for his future in reliance upon that benevolence.  It’s not as though the child could be out there nailing down some other step-father if not for the jerk that mom brought home. 

Nor does the child necessarily reciprocate with any kind of benefit to the step-parent—even filial affection.  The flow of benefits is all too often completely one-way.  In many cases I’ve seen, the kids remained aloof or even actively hostile to the step-parent despite the adult’s best efforts to foster a relationship.   “My real dad says you’re not my father and I don’t have to listen to you,” is the stock sentence that clients quote their step-children as having uttered.  

In fact, conflict between step-parent and step-child is often one of the reasons why the relationship between the two adult partners ultimately breaks down.  Unfortunately, before the final denouement, in an attempt to salvage the relationship, the husband frequently promises the wife that he will henceforth make even greater efforts to treat the ungrateful little wretches as if they were his own.  In Ontario, that’s the coup de grace.  The law says that if you have “demonstrated a settled intention to treat the child as a child of his or her family” then you’re a “parent”, with all the consequent support obligations. 

This gives rise to some pretty bizarre results, such as the case of Brown v. Laurin [2004] O.J. No. 5233 where a step-father was ordered to pay support for two kids even after they had gone to live with their natural father.  Or consider this:  in Ontario, you can become liable for supporting step-children even if you haven’t cohabited long enough with their biological parent to make you responsible for supporting her. 

Good laws should encourage responsible behaviour and discourage irresponsible behaviour.  The law makes people support their biological children as a disincentive to irresponsible procreation.  You don’t get to make babies and walk away scot-free.  But this reasoning doesn’t apply to step-children.  The children are already in existence when the step-parent comes on the scene, so allowing step-parents to walk away would not encourage irresponsible procreation. 

The step-parent support laws are actually perverse, providing disincentives for socially desirable behaviour.  First, they discourage people from entering into relationships with single parents.  Second, they discourage people from attempting to forge close relationships with their step-children if they are so foolhardy as to overcome the first disincentive.  It is only because so many people are ignorant of the law that it “works” at all.

If a single parent wants to find someone to help support her kids permanently—that is, even if the relationship ends and the kids stop visiting--the onus should be on her to get that explicit, unambiguous commitment (preferably in writing) from the prospective step-parent.  If she can’t, the law should not impose it on someone merely because he was kind enough to help shoulder the burden for some period of time. 

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