The mother and father were married for 11 years, during which time they had two children. They successfully shared custody after they separated. The mother entered into a common-law relationship with the man who became the children's stepfather in 1994. The stepfather insisted that the father pay no child support. It was discovered in 1999 that the stepfather sexually assaulted his stepdaughter, and had made videotapes of her bathing and sleeping. The mother separated immediately from the stepfather and sought interim child support from him. He was ordered to pay $750 per month based on his then income of $92,000 and the mother's income of $65,100. The father voluntarily began paying $100 per month for the children. The mother applied in 2003 for permanent support payable by the stepfather. The stepfather was unemployed and had no access to the children. He was ordered to pay child support of $297 per month based on his 2002 income of $20,000. The father was ordered to pay support of $376 per month, representing the differential between his own notional amount and that of the mother. The mother and daughter sued the stepfather. The daughter received $42,000 in damages and $12,000 in legal costs, while the mother settled her claim in exchange for the stepfather's interest in the family home. The stepfather obtained employment in 2003. The mother applied to increase child support payable by the stepfather, while he sought a discontinuance of or decrease in his support obligation. The stepfather had not been paying his taxes because he was trying to pay the judgment to the daughter, so his income was being eaten up by payments to the Canada Revenue Agency. The mother lost her job but found a new one, although there was some doubt as to whether it was permanent. The children were spending most of their time in the mother's home, and the daughter was attending college full-time. The judge considered all the circumstances, including the stepfather's assumption of all responsibilities for the children when he got together with the mother, the father's reliance on this in taking on new family and financial responsibilities, the stepfather's failure to disclose his increased income to the mother, and his obligation to pay the damage award to the daughter. The father was ordered to pay $430 per month, the stepfather was ordered to pay $1,100 per month for 2004, $1,075 per month for 2005, and $1,251 per month on an ongoing basis. With the mother's contribution of $890 per month to the children's expenses, the children's estimated monthly expenses of $2,200 would be met with an additional amount for unexpected expenses. The stepfather appealed this decision to the Court of Appeal.
- Is the support award against the stepfather correct under the Federal Child Support Guidelines?
Writing for the court, Newbury holds that there is a hierarchy of support obligations. The biological parent has the highest obligations; they do not get a break simply because a stepparent is also obligated to pay support. The stepparent obligation arises from s. 5. Newbury finds no less than six different approaches in the caselaw to awarding support under s. 5, but concludes the bottom line is the child's standard of living with the stepparent's obligation being a top up. The stepparent top up is an adjustment to raise the child's standard of living to that which existed while the child lived with the stepparent, but no higher than that.
Applying this to the case at bar, the father was ordered to pay his full table amount, $1,581/month. This resulted in a shortfall of $360/month, which the stepfather was then obliged to pay. In the circumstances Newbury decided that forcing a repayment of the stepfather's overpayments to date would not be in the best interests of justice, considering the sordid facts of the case.
When looking at support payments for stepparents:
- Are the parents married or in a common law relationship?
- Stepparents in a common law relationship have no support obligations under Chartier (Fitzgerald v Siepierski).
- Is the biological parent still in the picture?
- If the biological parent is in the picture and contributing fully financially and otherwise, stepparent may not stand in loco parentis at all, or may have a nominal top up.
- If the biological parent is out of the picture or cannot afford to pay the table amount, the stepparent may have to pay up to the full table amount.
- The biological parent's obligation must be assessed before the stepparent's - the stepparent's obligation is only a top up obligation.
The duration of stepparent support orders is still uncertain; pre-Chartier limited duration orders for the length of the relationship were common, but less so currently.