Section 5 of the Child Support Guidelines — Financial Obligations of Step-Parent
By: Philip Epstein
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Hari v. Hari, 2013 CarswellOnt 13124 (Ont. S.C.J.): This interesting case penned by Justice Douglas Shaw in the Superior Court of Justice is an instructive lesson about section 5 of the Child Support Guidelines and the financial obligations of a step-parent. The mother brings a motion for child support for her two children, the oldest of which is 16 and whose biological father has been gone from her life for at least 12 years. There is no order requiring the biological father to pay support for that child and no evidence as to what monthly amount of support the biological father should pay. The mother seeks the Guideline amount for two children based on the step father's income which would produce a number of $950 per month, but she subtracts $180 per month that she says the biological father has paid from time to time (although he is in substantial arrears).
Justice Shaw prefers the approach set out by Justice Aston in MacArthur v. Demers, 1998 CarswellOnt 3849 (Ont. Gen. Div.) which discusses how to apportion support between the step-parent and a birth parent. Justice Aston suggests the following approach:
1. Determine the guideline amount payable by the respondent. This will involve consideration of the table amount, any section 7 add-ons and any undue hardship adjustment.
2. 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 a 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.
3. In considering whether it is "appropriate" to reduce the respondent'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).
The step-parent in this case argues that he has no relationship with his 16-year-old daughter. Justice Shaw does not engage upon a "parent and wallet" discussion. It would have no relevance in this case anyway since the child is under the age of 18 years. He finds that simply offsetting the support obligation of the step-parent by the support obligation of the birth father is not the appropriate approach even though, strangely enough, it is the approach that the mother is putting forward. Justice Shaw points out that child support is the right of the child and the only principled approach to take in this case is to require the stepfather to pay full Guideline support until better evidence is available as to the biological father's obligation. Thus, this becomes an interim interim order and I suppose it is left to the step-parent to chase down the biological parent. This approach, is making it perfectly clear that child support is about the child and the right of the child and cannot be easily reduced. This judgment clearly protects the child at the expense of the step-parent and does not seem to provide any consequences to the biological parent. Although I think this is a very principled decision, I have a suspicion that it made Justice Shaw a bit uneasy and hence he turned an interim motion into an interim interim award, so as to give the step-parent a chance to potentially reduce it without having to demonstrate a change of circumstances. Justice Shaw also ordered no costs of the motion. I hope that the step-parent can locate the biological parent and I suspect so does Justice Shaw.
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