Debunking the myths and legends that haunt family law, including those about supporting adult children and the obligations of stepparents.
We have already debunked some myths about the law of child support, but there are so many out there! Let’s address a few more …
Myth: My child is now 18 so I can stop paying child support.
Myth: My child is now 22 so I can stop paying child support.
Child support obligations apply to any child under the age of majority (in Alberta, 18 years of age) if the child has not “withdrawn from their parents’ charge”. This means one of the child’s parents still supports them. Parents may be obligated to continue to support their child 18 years or older if that child is unable to withdraw from their parents’ charge or provide for themselves due to illness, disability, or some other reason such as attending post-secondary school. Sometimes this ongoing need is obvious, sometimes it is not. A judge considers the facts of each family’s case to decide whether it is reasonable for a parent to continue to be obligated to pay support for an adult child. If a child is studying full-time, most judges would agree that child support should continue, at least for a first degree, diploma, or certificate.
Neither the Divorce Act nor provincial family legislation, like Alberta’s Family Law Act, have an upper age limit. However, until 2018, the Family Law Act did cap the child support obligation at 22 years old. Some people still believe this is the case, but that is now a myth. Also, for administrative purposes, some government enforcement programs, like Alberta’s Maintenance Enforcement Program, have policies to stop collecting child support when a child turns 22 years of age, unless a new court order specifies the support should continue.
Usually, the amount of child support a parent must pay is based strictly on that parent’s income. A court has very little discretion to ignore the amounts set by the Tables in the Federal Child Support Guidelines. However, when a child is over the age of majority, a court has some discretion when deciding how much support should be paid. Section 3(2) of the Federal Child Support Guidelines gives the court discretion to order a different amount taking into consideration the conditions, means, needs and other circumstances of the child as well as the financial ability of the parents to continue supporting their adult child. So, a judge may consider whether the child has a job, whether they have savings for school, and what expectations the parents had when they were together about the level of support they would continue to provide to their child when they turned 18.
Myth: They are not my kid so I do not have to pay child support.
Myth: My ex already gets child support for that kid from the biological parent, so I do not have to pay.
Biology and adoption are not the only ways someone becomes a “parent” to a child for the purposes of child support obligations. The definition of a “child of the marriage” under the Divorce Act includes a child to whom one or both parents “stood in the place of a parent”. Provincial family legislation, like Alberta’s Family Law Act, has a similar definition.
“Standing in the place of a parent”, or being “in loco parentis”, occurs when someone treats a child as their own. Not every stepparent will stand in the place of the parent though it is common for them to fall into this role. If the issue goes to court, the judge will look at the circumstances of the family, including:
- the age of the child
- how long the person was in the child’s life
- whether the child perceived the person as a parental figure
- whether the person was involved in the child’s care, discipline, education, etc.
- whether the person has an ongoing relationship with the child after a separation from the child’s other parent
- whether there were discussions about adopting the child, changing the child’s surname to their own, or applying to become the child’s guardian
- whether the person provided direct or indirect financial support for the child, and
- any other factor the court considers relevant.
If the court finds someone is “standing in the place of a parent”, that person becomes obligated to pay child support. Remember, it is the child’s right to be supported by their parents. The child should not experience financial hardship just because their parents split up.
As mentioned earlier, the amount of child support payable is usually strictly based on that parent’s income. A court has very little discretion to ignore the amounts set by the Tables in the Federal Child Support Guidelines. However, where someone stood in the place of a parent, a court has a lot of discretion when deciding how much support should be paid. Section 5 of the Federal Child Support Guidelines gives the court complete discretion to order an amount it considers “appropriate, having regard to the Guidelines and other parent’s legal duty to support the child.”
It is possible that both a biological parent and stepparent will pay child support for the same child. The biological parent’s support is based on a strict application of the Tables while the stepparent’s support is based on what a court considers appropriate. The appropriate amount could be more or less than what the biological parent pays, depending on the circumstances of the biological parents, stepparent, and child.
Myth: My ex claims I stood in the place of a parent to their child so I must pay child support. Now I have a right to parenting time with that child.
Child support obligations and “rights” to parenting time are separate legal concepts with different legal tests. Decisions about who has what parenting time with a child are based on what is in a child’s best interests. Just because a stepparent must pay child support does not mean it is in the child’s bests interest to have time with that same stepparent. For example, if the stepparent committed family violence against the child, their parenting time might be limited, or even eliminated, while they still have an obligation to pay support.
However, it is common for the same facts that create an obligation to pay child support to also suggest parenting time is in the child’s best interest. For example, if the child and stepparent have a strong bond and good relationship, that fact will likely support a child support obligation and generous parenting time. Each family will be unique – with their own set of facts leading to their specific outcome.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Sarah Dargatz
