Does a Stepparent Have to Pay Child Support in BC?

Divorce and the “recombining” or blending of families is increasingly common, which raises the question: does a stepparent have to pay child support in BC? The answer is yes; the law in BC is clear that a stepparent can indeed have a child support obligation if certain criteria are met, even though he or she has no biological connection to the child. This article will provide an overview of the law relating to when a stepparent has an obligation to pay child support for a stepchild in BC.

Does a stepparent have to pay child support? The definition of “stepparent” in BC

Part 7 of the Family Law Act, S.B.C. 2011, c. 24, deals with (among other subjects) the subject of child support and governs when the issue is “Does a stepparent have to pay child support?”. Section 146 includes the following definitions:

“parent” includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];

“stepparent” means a person who is a spouse of the child’s parent and lived with the child’s parent and the child during the child’s life.

So, according to the definition in s. 146 of the Family Law Act, a “stepparent” is “a person who is a spouse of the child’s parent and lived with the child’s parent and the child during the child’s life.” As can be seen, buried in s. 146’s definition of stepparent is the term, “spouse,” which in turn is defined in s. 3 of the Family Law Act – it includes legally married spouses and those who live in marriage-like or “common law” relationships:

3(1)     A person is a spouse for the purposes of this Act if the person

(a)   is married to another person, or

(b)    has lived with another person in a marriage-like relationship, and

(i)      has done so for a continuous period of at least 2 years, or

(ii)    except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2)       A spouse includes a former spouse.

(3)       A relationship between spouses begins on the earlier of the following:

(a)    the date on which they began to live together in a marriage-like relationship;

(b)    the date of their marriage.

(4)       For the purposes of this Act,

(a)    spouses may be separated despite continuing to live in the same residence, and

(b)    the court may consider, as evidence of separation,

(i)      communication, by one spouse to the other spouse, of an intention to separate permanently, and

(ii)    an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

Does a stepparent have to pay child support? The source of the duty

Subsections (4) and (5) of s. 147 of the Family Law Act define when the duty arises for a stepparent to pay child support for a stepchild:

(4)       A child’s stepparent does not have a duty to provide support for the child unless

(a)    the stepparent contributed to the support of the child for at least one year, and

(b)    a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

(5)       If a stepparent has a duty to provide support for a child under subsection (4), the stepparent’s duty

(a)    is secondary to that of the child’s parents and guardians, and

(b)   extends only as appropriate on consideration of

(i)      the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and

(ii)    the length of time during which the child lived with the stepparent.

As such, to be bound by a duty (albeit a secondary one) to provide child support, a stepparent must be proven to have “contributed to the support of the child for at least one year”.

Does a stepparent have to pay child support? A case example

In O.Z. v. M.Z., 2016 BCPC 416 the court was asked the “Does a stepparent have to pay child support for twins born by extramarital affair?” and, despite the complex and unusual family circumstances in that case, decided that the stepparent did have a prima facie child support obligation. The parties were married in Russia in 1990 and had a daughter together who was born in 1994. Several years later, twin boys were born to O.Z. as the result of an extramarital affair she had with another man. O.Z. never pursued the twins’ biological father to pay child support. O.Z. and M.Z. divorced in 2003 before immigrating to Canada in 2004. A few years after their divorce and immigration to Canada, O.Z. and M.Z. resumed cohabiting. In June 2012 they bought a townhouse in Port Coquitlam and they reunited under its roof as a family. Eventually, the reconciliation attempt failed and came fully to a close at the end of June 2015, after which O.Z. sought an order requiring M.Z. to pay her child support, in his capacity as an alleged stepfather, for the benefit of twin 12-year-old boys.

The court concluded that the facts brought M.Z. squarely within the definition of “stepparent” under s. 146 of the Family Law Act. There was no doubt that from June 2012 until the end of June 2015, M.Z. was O.Z.’s “spouse” by dint of the fact that he had been her spouse before and had had a child — their daughter — with her. He was also O.Z.’s spouse by dint of the fact that, from June 2012 to July 2015, he lived with her and the twins in the townhouse in a marriage-like relationship continuously for over two years.

The court then turned to consider the issue of whether M.Z. had a duty as stepparent to pay child support. The evidence showed that M.Z. isolated himself to some degree from the day-to-day costs of making provision for the twins’ needs (e.g., he did not pay for any sporting expenses for the twins, give the twins an allowance, or pay for their school tutoring or buy their clothing). However, M.Z. did pay half of the mortgage and the strata fees for the townhouse in which he, O.Z., the twins and their daughter resided together as a family for three years. M.Z. also bought some of the food that the family consumed over that period. That evidence satisfied the court that M.Z. made expenditures from his funds that met, in part, the twins’ most basic needs — their needs for shelter and food. He also made expenditures from his funds that covered part of the cost of entertainment and domestic and international travel for the entire family, including the twins.

Despite his attempts to minimize or diminish the significance of his role in the lives of the twins, M.Z. also acknowledged that he (for example) sometimes walked them to school. M.Z.’s participation in making provision for the twins was, in almost all respects, consistent with his having stood in loco parentis to them during the three-year period between June 2012 and June 2015 when he and O.Z. gave their spousal relationship another try — a period during which he contributed financially, in kind, and emotionally and psychologically to their upbringing (emphasis added):

[38]        Altogether, M.Z.’s words and his actions leading up to and during most of the parties’ three-year experiment at reconciliation betoken meaningful engagement on his part with the parenting of the Twins — including the aspects that called for money and in-kind contributions from him.  While they may have been lesser financial and in-kind contributions than what might be expected in more conventional circumstances, M.Z.’s contributions were nevertheless far from insignificant.  His economic contributions, as outlined above, extended well beyond the “trivial” and the “sporadic”; what he provided, either through money or in-kind, were not mere “gestures of occasional generosity” of the sort that the cases show will not attract a duty to support: see, for example, Smart v. Wiewior (1990), 1990 CanLII 1673 (BC CA), 28 R.F.L. (3d) 225 (B.C.C.A.), McConnell v. McConnell, 2007 BCSC 748 (CanLII) and, more recently, D.C.D. v. R.J.P.C., [2014] B.C.J. No. 3155 (S.C.).  Rather, M.Z.’s contributions to the cost of, inter alia, shelter, food, vacations and the like for the Twins were substantial, consistent and regular.

[39]        For all of the foregoing reasons, I find that the nature of M.Z.’s role in the lives of the Twins from June of 2012 to June of 2015 — both financially and otherwise — was such that it triggered a prima facie duty on his part under s. 147(4) of the Family Law Act to provide support for the Twins, as their stepfather, following his break-up with O.Z. and their separation at the end of June of 2015.

In the result, O.Z. was entitled to child support from M.Z. for the benefit of the twins and, accordingly, the next step was to determine the quantum of his obligation and the time from which it should run, having regard to the considerations mandated under subs. 147(5) and 150 of the Family Law Act and the fact that O.Z. had not made any efforts to pursue the biological father of the twins to pay child support for their benefit.

Does a stepparent have to pay child support? The take home point

When spouses separate, stepparents can have an obligation to pay child support for stepchildren. A stepparent may have to pay child support if they have lived with and contributed to the support of the child for at least one year. A stepparent’s duty to pay child support is secondary to that of a parent or guardian. Though it was not discussed in this article, the quantum of a stepparent’s child support obligation is limited by consideration of how long the stepparent lived with the child and the standard of living the child had during the relationship between the stepparent and parent. For more information on the issue of the child support obligations of a stepparent, contact Onyx Law at (604) 900-2538.