Section 5 of the Child Support Guidelines [the “Guidelines”] clearly establishes that a person standing in the place of a parent, such as a step-parent, may be ordered to contribute to child support payments. Pursuant to s. 5 of the Guidelines, a court has the discretion to award an amount it deems appropriate, having regard to the Guidelines and any other parent’s legal duty to support the child. The Ontario Superior Court was recently faced with the issue of determining how to apportion support between a step parent and a birth parent in the case of Hari v Hari. In Hari, the Applicant mother brought a motion for child support for her children, aged 16 and 8, one of which was not the biological child of the Respondent. Although the Respondent step-father, acknowledged that he stood in the place of a parent to the child, he argued that he should not be required to make any child support payments in light of his broken relationship with the child. Further complicating the matter was the fact that the child’s birth father had previously been ordered to pay support, however, he was in arrears.
Once Justice Shaw of the Ontario Superior Court rejected the step-father’s argument that he should pay no support for the child on the basis of a broken relationship, the issue was to determine what impact the birth father’s order has in determining the step-father’s child support obligations. Justice Shaw referred to the decision of MacArthur v Demurs, where Justice Aston shed light on quantifying orders of child support payments by persons standing in the place of a parent. Justice Aston suggested the following approach for structuring judicial discretion under s. 5 of the Guidelines:
Determine the guidelines amount payable by the step-parent. This will involve consideration of the table amount, any section 7 add-ons and any undue hardship adjustment.
Determine the “legal duty” of any other non-custodial parent to contribute to the support of the child. As noted above, this will be established by a pre-existing order or agreement or by guideline calculation. The words in section 5 “any other parents’ legal duty to support the child” would include the custodial parent, but the guideline scheme assumes the custodial parent meets this duty by sharing his or her household standard of living with the child.
In considering whether it is “appropriate” to reduce the step-parent’s obligation under the Guidelines, once the non-custodial parent establishes that another non-custodial parent (or parents) has (have) a legal duty to support the child, the onus ought to shift to the custodial parent to demonstrate why the respondent’s obligation should not be reduced by that of other non-custodial parent(s).
In applying Justice Aston’s approach, Justice Shaw found that the step-father was required to pay full Guidelines support on an interim basis. In coming to this conclusion, Justice Shaw determined that simply offsetting the Guidelines amount by the birth father’s obligation, as suggested by the mother, would be inappropriate in light of the lack of evidence supporting both the amount of birth father’s order and birth father’s annual income. In addition, since the birth father’s support payments are in arrears, they were of no assistance to the child. Accordingly, even though the step-father was not the biological father of the child, he was required to pay full Guidelines support.