Sweet Child O’Mine (by or Court Order) – Step Parents, and Obligations Prepared For: Legal Education Society of Alberta Child Support Fundamentals

Presented by: Jocelyn Innes Innes Law Grande Prairie, Alberta For Presentation In: Edmonton – February 7, 2012 Calgary – February 9, 2012 SWEET CHILD O’ MINE (BY MARRIAGE OR JUDICIAL DECREE)

STEP PARENTS, IN LOCO PARENTIS AND CHILD SUPPORT OBLIGATIONS A REVIEW OF SECTION 5 OF THE FEDERAL AND ALBERTA CHILD SUPPORT GUIDELINES –

WHAT IS THE JUDICIAL APPROACH TO DETERMINING STEP PARENT CHILD SUPPORT OBLIGATIONS IN ALBERTA?

INTRODUCTION

Child support may be obtained in Alberta through the Federal Act1 (“DA”) and through the Provincial Act2 (“FLA”). These two statutes each employ very similarly worded Regulations – the Federal Child Support Guidelines3 (“FCSG”) and the Alberta Child Support Guidelines4 (“ACSG”). Both sets of Guidelines have the same objectives which are to: establish a fair standard of support for children to ensure that they continue to benefit from the financial means of both parents/spouses after separation; reduce conflict between spouses; encourage settlement; make the calculation more objective; improve efficiency of the legal process; and ensure consistent treatment of spouses and children in similar circumstances5.

The FCSG and the ACSG both have the same presumptive guideline amount and the same various exceptions. Biological parents (or adoptive parents) are subject to the presumptive guideline amount under section 3 to pay child support for a child under the age of majority as set out in the applicable table (according to the number of children and the income of the payor spouse) and the amount, if any, as determined under section 7 (special and extraordinary expenses)6. The exceptions to the presumptive guideline amount (section 3) are provided under the following sections: section 4 – incomes over $150,000; section 5 – spouse in place of a parent; section 8 – split custody; section 9 – shared custody; and section 10 – undue hardship.

This paper is confined to reviewing the exception under section 5 of the FCSG and the ACSG wherein step parents may incur child support obligations to their non-biological step children. A section 5 analysis is a two-step process that involves determining:

1 Divorce Act, R.S.C. 1985, c.3 (2nd Supp) [DA]. 2 Family Law Act, SA 2003, c. F-4.5 [FLA]. 3 Federal Child Support Guidelines, SOR/97-175 (Divorce Act) [FCSG]. 4 Alberta Child Support Guidelines, Alta Reg. 147/2005 (Family Law Act) [ACSG]. 5 FCSG, supra note 3 at s. 1; ACSG, supra note 4 at s.1. 6 FCSG, supra note 3 at s. 3; ACSG, supra note 4 at s.3. 1) Whether the step parent qualifies as “standing in the place of a parent” (threshold inquiry); and 2) If the step parent qualifies, determining an appropriate amount of child support to be paid having regard to the Guidelines, the biological parent’s legal duty to support the child and, if under the FLA, the duration of the step parent relationship or any other relevant factor (quantum and apportionment inquiry)7.

The Court is not bound to make a presumptive child support award for step parents under section 3. The Court is mandated in section 5 to make a discretionary judgment in determining the amount of support it considers appropriate based on the facts of that case. That discretion is limited in two ways: by a review of the Guidelines and then by a review of other parent’s legal duty to support the child8. If under the Alberta FLA, the discretion is limited further by the duration of the step parent relationship and any other relevant factor.

Brian Burke and Stephanie Chipeur in their article “The More the Merrier? Multiple Parents and Child Support9”, argue that the uncertainties as to step parent’s quantum and apportionment of child support poses a significant problem and “leave the potential support payors/payees, judges, and lawyers only minimally better off than they were before the enactment of the Guidelines in terms of knowing what result will likely obtain in any given situation10.” This bears true today and can be demonstrated by reviewing the recent array of judgments in Alberta. Thus, with the discretion implicit in the section 5 exception, the objective of the Guidelines for step parents to obtain predictability is not met.

In this paper, I intend to primarily review section 5 of the Federal and Provincial Guidelines and the judicial approach to determining step parent child support obligations in Alberta. I intend to review the following aspects: I. The Wording of both the Federal and Provincial Legislation; II. The History of the Doctrine; III. The Threshold Inquiry; IV. The Apportionment Inquiry;

7 Brian Burke & Stephanie Chipeur, “The More the Merrier? Multiple Parents and Child Support.” (2010) 29 Canadian Family Law Quarterly 185 [Burke] at 1. 8 G.N.P. v. L.A.G., 2001 NSSC 165 (CanLII) [GNP v. LAG] at para. 27. 9 Supra note 7. 10 Supra note 7 at 2.

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