Demystify the myths and legends that haunt family law, including those concerning support for adult children and the obligations of stepparents.
We’ve already debunked some myths about child support law, but there are so many! Let’s talk about 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) if the child has not “removed from parental care”. This means that one of the child’s parents is always supporting them. Parents may be required to continue supporting their child aged 18 or over if that child is unable to remove themselves from parental care or support themselves due to illness, disability or another reason, such as attending a post-secondary school. Sometimes this permanent need is obvious, sometimes not. A judge looks at each family’s facts to decide if it’s reasonable for a parent to continue to be obligated to pay child support for an adult child. If a child is a full-time student, most judges would agree that child support should continue, at least for a first degree, diploma or certificate.
Neither the Divorce law nor provincial family legislation, such as that of Alberta Family Law Act, have an upper age limit. However, until 2018, the Family Law Act capped the child support obligation at 22 years. Some people still believe this is the case, but it is now a myth. In addition, for administrative purposes, some government law enforcement programs, such as Alberta’s Maintenance Enforcement Program, have policies to stop collecting support when a child turns 22, unless a new court order specifies that support must continue.
Usually, the amount of child support a parent has to pay is strictly based on that parent’s income. A court has very little discretion to override table amounts in the Federal Child Support Guidelines. However, when a child has reached the age of majority, a court has some discretion when deciding how much child support to pay. Section 3(2) of the Federal Child Support Guidelines gives the court the discretion to order a different amount taking into account the conditions, means, needs and other circumstances of the child as well as the parents’ financial ability to continue to support their adult child . So a judge can determine if the child has a job, if they have savings for school, and what expectations the parents had when they were together about the level of support they would continue to give their child when they were together. would be 18 years old.
Myth: He’s not my child, so I don’t have to pay child support.
Myth: My ex is already getting support for this child from the biological parent, so I don’t have to pay.
Biology and adoption are not the only ways a person becomes the “parent” of a child for support purposes. The definition of “child of wedlock” under the Divorce law includes a child to whom one or both parents “stand in the place of a parent”. Provincial family legislation, such as that of Alberta Family Law Act, has a similar definition.
“To stand in the place of a parent”, or be”in loco parentis”, happens when someone treats a child like their own. Not all in-laws will stand in the place of the parent, although it is common for them to fall into this role. If the matter goes to court, the judge will look at the family’s situation, including:
- child’s age
- 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 care, discipline, education, etc. of the child.
- whether the person has an ongoing relationship with the child after a separation from the child’s other parent
- whether there have been discussions about adopting the child, changing the child’s surname to their own, or applying to become the child’s guardian
- whether the person has provided direct or indirect financial support to the child, and
- any other factor that the court deems relevant.
If the court finds that someone is “standing in the place of a parent,” that person becomes obligated to pay child support. Do not forget that the child has the right to be supported by his parents. The child should not experience financial difficulties simply because their parents separated.
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 override table amounts in the Federal Child Support Guidelines. However, when a person stood in the place of a parent, a court has a lot discretion in deciding the amount of maintenance to be paid. Article 5 of the Federal Child Support Guidelines gives the court full discretion to order an amount it deems “appropriate, having regard to the Guidelines and the other parent’s legal obligation to support the child”.
It is possible for a biological parent and a step-parent to pay child support for the same child. The accompaniment of the biological parent is based on a strict application of the the tables while step-parent support is based on what a court deems appropriate. The appropriate amount could be more or less than what the birth parent pays, depending on the circumstances of the birth parents, step-parent and child.
Myth: My ex claims that I took the place of a parent for his child and therefore have to pay child support. Now I have the right to spend time with this child.
Child support obligations and “rights” to parenting time are distinct legal concepts with different legal tests. Decisions about who has what parenting time with a child are based on what is in the best interests of the child. Just because a step-parent has to pay child support doesn’t mean it’s in the child’s best interest to spend time with that same step-parent. For example, if the step-parent has committed domestic violence against the child, his parenting time could be limited or even eliminated, while he still has an obligation to pay child support.
However, it is common for the same facts that create an obligation to pay child support to also suggest that parenting time is in the best interests of the child. For example, if the child and step-parent 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 its own set of facts leading to its specific outcome.