As a family law lawyer, I have had the opportunity to speak to many different people from many different types of families.  There are all sorts of familial relationships and connections out there and, as our own Catherine Hyde has pointed out, the modern family is no longer what one might once have thought of as typical.  In fact, it is relatively commonplace for the relationships within a household to include the relationship between a step-parent and a step-child.  When that family splits up, or more specifically, when the two spouses split up, there is often an issue about whether the step-parent has a child support obligation for his or her non-biological children.  I have found that it comes as a surprise, to some, that, in those circumstances, there may be an obligation to pay child support for children who are not biologically related.    

Whether a step-parent has an obligation to pay child support is not determined by the relationship between the two spouses.  It doesn’t really matter whether the spouses had a common law relationship or whether they chose to get married.  What the courts are going to be looking at is whether the potential support payor voluntarily assumed the role of a parent during the time that the family functioned together as a unit.  If he or she stood in the place of a parent, the children are entitled to rely on that “parent” as a continued source of financial security.  An adult who voluntarily assumes a parental role, will not be permitted to escape a child support obligation by unilaterally ending his or her relationship with the child. 

There are no hard-and-fast rules for determining whether a person has stood in the place of a parent and each case will depend on the facts that are specific to the particular family.  The following factors are, however, generally considered:

  • The child’s opinion about his or her relationship with the step-parent.  Did the child accept the person as a parent (for example, by referring to the person as “Mom” or “Dad”) or did the child refuse to consider the person as a parental figure? 
  • The way in which the step-parent represented his or her relationship with the child to others.  If the step-parent communicated, either through action or words, that he or she  was responsible for the child as a parent, that will be certainly suggest the intention to assume a parental role.
  • The extent, prior to the spouse’s separation, of the step-parent’s financial contribution towards the child.
  • The child’s involvement with the step-parent’s extended family.
  • The level of involvement and the degree to which the step-parent became involved in the child’s life.    Did he or she attend parent teacher interviews?  Participate in the child’s extracurricular activities?  Discipline the child as a parent?
  • The nature of the child’s relationship with the “other biological parent” (i.e. the parent with whom the step-parent did not have a relationship).

The above-listed factors are not determinative nor are they exhaustive but all are frequently considered when trying to ascertain whether there has been a voluntary assumption of a parental role. 

The next stage of the analysis, assuming the non-biological parent has stood in the place of a parent, is to determine what amount of child support must be paid. 

Generally speaking, a parent’s monthly child support obligation is the amount that is set out in the applicable table as well as the amount of that parent’s contribution towards any special or extraordinary expenses.  The Department of Justice has an online Child Support Lookup to help figure out basic child support amounts according to the number of children eligible for support and the payor’s gross annual income.  A non-biological parent’s basic monthly child support obligation may, however, differ from the tables.  The Court has the discretion to order an amount that is “appropriate” having regard to (a) the amount payable pursuant to the guidelines; and (b) any other parent’s duty to support the child.

Ultimately, a non-biological parent’s “appropriate” support amount will depend on the particular circumstances that are invariably unique to each family.  In some cases, a step-parent will be ordered to pay the full table amount of child support and, in other cases, the step-parent will be ordered to pay a lesser amount.  Although the amount of the support obligation is difficult to predict, once an individual stands in the place of a parent for a non-biological child, he or she will not be permitted to cast aside parental responsibility simply because the relationship with the child’s parent has come to an end and there will likely be some amount of support payable for that child post-separation.

I am continually amazed at the number of clients I interview who tell me that they don’t have a will and never have had one.  This situation can be disastrous for them.  If they die without a will, they will have no say over how their estate is distributed or  the guardianship and welfare of their children.

I received a copy of the article below in an email newsletter.  I found it very informative and helpful when discussing with clients their need to create or change their wills now that they are separated or about to remarry.

Reprinted in full with permission:

Holy matrimony! Time to review your will

globeandmail.com

Mon Sep 27 2010

Section: Business

Byline: Dianne Nice

First comes love, then comes marriage, then comes a review of your will.

Failure to do so could leave your loved ones empty-handed when you pass away, says Barry Fish, a wills lawyer and co-author of Where There’s an Inheritance: Stories from Inside the World of Two Wills Lawyers.

“We have reviewed many wills where a person’s will was dated in the 1990s and, several years later, that person entered into a marriage. It invariably comes as a shock to people in this position when we tell them that their marriage has revoked their will and that they have no will at all,” Mr. Fish says.

“The opposite situation arises where a person who is separated is often surprised to learn that his or her separation does not revoke the will that he or she had made while still married to the person from whom they separated.”

Mr. Fish also advises those who are separated to double check their beneficiary designations on life insurance policies, RRSPs, RRIFs, TFSAs and deferred annuities. “These, too, must be changed, in addition to the will, if the separated spouse is no longer to be named on them. The will alone will not effect such a change.”

Here are some other things Mr. Fish says to keep in mind when reviewing your will:

1. Have a backup plan. You need to name a replacement in the event that your executor dies, becomes ill or is incapacitated, otherwise someone will have to apply to the courts to do the job. The same applies to beneficiaries: If you don’t name a backup beneficiary, with some exceptions, the law may decide what happens to your gifts.

2. Count your blessings. Have you had any children since you wrote your will? If so, you’d better make sure they are included as beneficiaries, or risk having them cut out completely.

3. Protect your child’s inheritance. While the inheritance you leave your child is protected from a divorcing spouse, the growth on that inheritance is not. Be sure to include a family law clause to protect the income and capital gains made from that inheritance in the event that your child separates or divorces after your death.

4. Take stock of your assets. Outdated descriptions of your assets can create confusion when you die. If your will says “123 John Street” goes to your child but you have since moved, your child does not automatically get your new property. You need to include the phrase “any home I’m living in at my death” in the bequest.

5. Leave no grey areas. Ambiguous wording in your will can lead to more than one interpretation. If you leave one child your “antiques” and the other child questions the meaning, they could be headed to court.

6. Protect your disabled child. Some parents leave outright bequests to children who are on government disability support plans, unaware that this can put these benefits at risk. By including what’s called an absolute discretionary trust in their wills for the benefit of their disabled children, parents can protect them from losing governmental disability benefits when the parents die.

7. Plan for death and taxes. If you hold shares in your own company, you have the right to make two wills. One will covers their company shares and the other will covers everything else you own. When done correctly, the dual will structure can save significant probate tax on the value of the company shares.

A Financial Statement.  It may sound simple enough but this document could be the most intensive exercise you undertake and is an essential step in your Family Law matter.  A properly prepared Financial Statement is critical to settlement and is the cornerstone of financial disclosure, a term you will encounter often. 

A Financial Statement is a form which sets out information about your income, expenses, property and debts, and helps to determine support obligations and property settlements.  The laws and rules which govern a Family Law matter are very clear when “full and frank disclosure” is required.  There are always exceptions but most Family Law matters require that a Financial Statement accompany specific documents served on the other side and filed with the Court.  You should be aware that the Court can refuse to accept documents if they do not include a mandatory Financial Statement or may refuse the statement itself if it does not include income tax documents.  

In addition to Family Court matters, Financial Statements are also exchanged as a step in the negotiation of Domestic Contracts such as Cohabitation Agreements and Marriage Contracts (also known as “prenuptial agreements”) and Separation Agreements.  Domestic Contracts will be discussed in more detail in future postings.

Your obligations to provide disclosure includes the responsibility to keep financial information current.  Financial Statements are usually updated before conferences, motions and trial and  should be updated to advise of a material change in your life.  Your spouse and his or her lawyer may be aware of your change in jobs or perhaps an illness or injury but the Court is not an active participant on a day-to-day basis in your matter.  It is also common to update a statement if you discover incorrect or incomplete information; however, these kinds of updates (and the cost involved) can be significantly reduced when your Financial Statement is done right the first time. 

A Financial Statement that is prepared and substantiated with the proper documentation as early as possible can reduce the time and expense of litigation.  Like an affidavit, it is sworn under oath as a sworn statement of fact.  As a result, it can establish a party’s credibility.  There are no tactical advantages gained by serving a Financial Statement that lacks accuracy or details.  A party who embellishes his or her expenses and debts or is reluctant to disclose information thought to be “nobody else’s business” only fosters mistrust in an already emotionally charged process.

Your Financial Statement is just that – yours.  It is a “snapshot” of your financial situation in the past and today and is important in determining your financial situation in the future.  The form can be modified to personalize it or incorporate notes and schedules.

You will be asked to gather many documents, which step will be repeated each time you update your statement.  The documents you produce are also a part of your obligation to make full financial disclosure.  They will help to establish values, ownership and whether a value is to be included in your net family property, such as a bank account opened after separation.  Most if not all of the documentation is available to you if you know who and what to ask for.  The internet is a time-saving tool and may enable you to obtain balances for multiple accounts on one summary.

In upcoming postings, the 3 law clerks in Barriston’s Family Department will be reviewing the individual sections to a Financial Statement and discussing the necessary disclosure specific to each.

One bright, sunny day in July, while on vacation, I played a round of golf at a club I had never played at before – “Fox Meadows” near Charlottetown P.E.I. .  I was thoroughly enjoying my round of golf, the weather, the scenery and my golfing companions.  I was on the 3rd tee, which was slightly elevated.  I hit my tee shot a fair distance ending up in the right side of the fairway about 20 feet from some tall grass that paralleled the fairway.

As I headed to my golf cart, I noticed out the corner of my eye, something move in the tall grass.  I turned to look and to my amazement I saw a red fox coming out of the tall grass and make a bee-line directly towards my ball.  Without a moment’s hesitation the fox picked up my ball and trotted straight back into the tall grass.   Needless to say, I wasn’t about to go after my ball.   I didn’t have  a Rule Book with me so I wasn’t sure on how to score this unexpected event.  I decided to ignore it and play my next shot from where I thought my ball had landed.

That was a story that I could take back home to tell family and friends – a kind of “what I did on vacation” story. But wait, there’s more!  On the 8th hole, my approach shot to the green landed about 10 feet short but in the middle of the fairway.  As I was driving up to my ball, wouldn’t you know it, another fox (or maybe the same one – they all look the same to me) came out of the long grass along the side of the fairway and was again making a bee-line towards my ball! This time I was a little better situated.  I was about 30 yards from my ball when I spotted the fox.  So I turned my golf cart and drove in a direction that put my cart between the ball and the fox.  I wasn’t going to lose another ball! (my Scottish ancestry was coming out in me).  The fox stopped in its tracks and backed off a bit (but not entirely).  It waited for me to chip onto the green and then waited for me to putt out, then followed me to the next tee box.  It as is if it was saying “you got me last time, but I‘m hanging around in case you and your ball get separated again”.

I have taken no small amount of pleasure regaling my golfing buddies with this story several times since my return from vacation.

This experience brought home to me the expression “always expect the unexpected”.  This has also been my experience in the realm of working with couples who are going through a separation or a divorce.  While the spouses may start out hoping for an amicable, straightforward and stress-free process, often this turns out not to be the case.

The separation process can be an emotional rollercoaster and sometimes spouses are not on the same ride at the same time.  The emotional journey can take you through periods of denial, anger, rage, guilt or jealousy, and remorse until you get to an emotional place where you can deal with the issues more rationally.

It is wise to be aware that what may start out as an “amicable separation” may end up somewhere very different, with threats and false accusations being made by one spouse against the other, or even against other members of the spouse’s family.

It is for this reason I strongly suggest to family law clients that they remain polite to their estranged partner but also make their best efforts to document or substantiate all events that transpire during the lifetime of the separation negotiations.  For example, I will suggest to clients that they terminate their use of all “social media” to keep friends or family up to date on the events of their separation or any developments in their “love life”.  You never know who may be reading the story of your life and the purpose for which they may be reading it.

It is also wise for separating spouses to keep track of the documents that can verify their assets and debts at the time of separation and any significant or out-of-the-ordinary spending that they may make in the weeks or months after the separation.  Documenting this spending his will help recreate the spending patterns of the parties and help determine if one spouse should be compensating the other for taking on debts or expenses that should be shared by the parties.

If there are young children involved in the separation I often recommend that the parties keep a journal or some other form of note-keeping on significant events that occur with the children, or to create a chronology of the time each parent spends with the children and the types of activities or tasks that each parent performs with the children.  There is a very handy internet-based software called Our Family Wizard that is excellent for this purpose.  You may view a demonstration of how this works at www.ourfamilywizard.com.

My golfing experience has served to remind me, and I hope that it provides some insights for you, to “expect the unexpected” when you are venturing into new areas or experiences.

Perhaps you have had a chance to catch the show on ABC entitled “Modern Family”.  It’s about three different types of families all of whom are related to each other.  It reminds us that there is no one type of family.  There is no longer only the typical mom, dad and 2 kids. It’s not Ozzie and Harriet or the Brady Bunch. Families can be made up of any type of grouping of people who love and are connected to each other.

Going through a divorce can be difficult.  You perhaps feel that you have let yourself and your children down because you are no longer that “typical” family.  That simply is not the case. There is no social stigma to being divorced. Your children will have many other friends in school and their extra-curricular activities who they will identify with.

What is important however is how you are dealing with your new situation.  If you are having difficulties getting on with your new life, you need to talk with a counselor.  Your lawyer is not the appropriate person to provide you with this support.  Your lawyer will guide you through the process of getting the financial support and property division you require and although they may be sympathetic to your situation, they cannot provide the emotional support and guidance you may require.  Your lawyer can suggest counselors to you. One of the groups we frequently recommend is  Family TLC

Your children may also require counseling to help them adjust to their new situation.  Make sure you are looking out for any signs that they are in distress such as not eating, overeating, highly emotional, not enjoying activities that they used to enjoy, etc.. Again, counselors can assist your children and you should seek assistance for them.

Divorce can be a difficult road.  It will take some time to adjust to your new situation.  It is ok to mourn the past, what could have been, but then you must pick yourself up, dust yourself off and start anew. You can make it better for yourself and your children by remembering there is no such thing as the perfect family or just one type of family.  If you get a chance watch the show and have a laugh.  Laughter is, after all, the best medicine.

Separations are, at best, difficult emotional and psychological transitions for all family members. Separations can happen by mutual agreement, by one parent removing him or her self from the relationship or, in often the most difficult of circumstances, by the intervention of the criminal law through the laying of criminal charges against one of the parents.

As a family law solicitor who has also had an historic criminal law practice, I will be writing several blog articles tracking the legal impact of a criminal charge on the co-existing family law issues. This first article will deal with stage 1, called “arrest and release”.

The criminal process is activated by a police officer receiving a complaint by one spouse alleging that the other spouse (I will use you as the example spouse) has committed a criminal offence. I will use the example of an allegation of assault as the sample offence.

It is important to understand that, some years ago, our government identified domestic violence as a serious social concern.  The police today have been instructed that there be a zero tolerance policy toward domestic violence such that police, upon receiving a complaint of domestic violence, are to exercise no discretion but to lay the appropriate criminal charge against the other spouse. The criminal procedure I describe in this and the future blogs is standard to the handling of domestic offences.

I have had many criminal file situations where the complainant spouse has contacted the police in an effort to have the other spouse simply removed from the home, not expecting that the other spouse would be arrested and charged with a criminal offence.

In the event that you are arrested, it is important that you make no statement to the police in relation to the incident. Any voluntary statement (verbal or in writing) made by you can be used in evidence against you at your trial.

After you are arrested, you will be physically removed from the home whether the home is a matrimonial home (marital relationship) or the family home (common law relationship).

At the time of your arrest, you should be provided with a caution against making a statement and notification of your charter right to access legal counsel.

Following your arrest, you will be released from custody by either your entering into a release undertaking at the police detachment or after the completion of a bail hearing at court. You will have an opportunity to obtain legal advice at the police detachment through accessing, at the very least, a legal aid duty lawyer through a toll free number. Please remember, however, that the legal aid duty lawyers’ advice is limited to the matter of your criminal charge and, as such, will not likely address any of the potential family law separation issues which will be impacted by the criminal charge.

Your release from custody will, in either event, be subject to conditions which will prohibit you from communicating or associating, directly or indirectly, with your spouse and possibly the children of the relationship.  You will also be restrained from physically attending at the family residence where the alleged assault took place. You will be allowed to attend at the home on one occasion, in the company of a police officer, to remove your personal items.

It is important at the stage where these release conditions are being negotiated for the non-association/communication release clause to have an exception to allow for your contact or communication through, at the very least, a third party or lawyer to arrange access to your children or pursuant to the terms of a family court order or separation agreement.  It is important to understand that the release conditions, unless they contain these exceptions, supersede any existing or later family court orders for access or even custody .The release conditions will remain in effect until likely the first court appearance for the charge, which may not take place until several months from the date of the laying of the charge. The release conditions provide your spouse with informal custody and exclusive possession of the home while they exist.

It is difficult to negotiate a variation of these release conditions with the Crown Attorney until a charge brief has been prepared by the police. The brief is often not physically prepared until shortly before the first appearance date in court.

In the next article, I will describe the procedure of the first appearance in criminal court.

You’ve separated. Now what? Where do you go for information? Quite likely you are talking to your friends; you may be obtaining that “coffee shop” advice on what happened to someone else you know and you should ‘watch out for that’ or go to Court now and get an Order to prevent your spouse from ….. and so it goes.  People are just trying to help but sometimes misinformation can be just the thing you don’t need.  It can cause difficulties and create hard feelings at a time when both you and your spouse are in, most likely, a highly emotional state of mind.

Family Law is a specialized field.  The reason often cited by family law lawyers for choosing that field is because they have a desire to help. At Burgar Rowe we are committed to helping our clients to the best of our abilities to obtain the best result for them in what is, for most people, a very stressful situation.  No one goes into a relationship expecting to separate from their spouse.  But it does happen.  And when it happens, and it does so in about ½ of all relationships, the initial reaction is often shock, denial or disbelief.  It can take a year or more to go through the emotional adjustments required due to separation. Emotional stress can sometimes cause you to make rash or irrational decisions and it is important to be able to obtain information from qualified professionals to assist in making those important decisions that will affect your future.

The Family Law Lawyers at Barrie’s largest law firm, Barriston LLP, are pleased to offer an additional avenue of information to clients and potential clients through our new blog ‘Matrimonial Matters’.  We hope you will be entertained as well as educated by the information and anecdotes that we will provide to you in the coming months. Contributions to the blog will be made by our 7 experienced family law lawyers and 3 insightful law clerks.

We hope our blog will help you to learn more about the separation and divorce process, financial issues associated with this process, and hopefully enable you to make more informed decisions.

We hope you will join in with us in discussing the issues surrounding separation and divorce.

Partners:     Thomas Dart     Barrie Hayes         Douglas Manning

Associates: Lori Aylwin        Jodi Armstrong     Katie Lloyd