In most cases of parents separating from one another, there will be some form of child support ordered or settled upon between the parties. It is the duty of every parent with means to ensure the financial support of their children, even if the parenting arrangements do not permit regular contact with their child, or decision-making ability with respect to critical aspects of their child’s life. However, in some cases, those who have acted as a parent to a child can also be required to pay child support under the law.

A Person “Standing in the Place of a Parent”

While biological and adoptive parents are commonly required to pay child support following a separation or divorce, people often wonder about the obligations of step-parents who develop a close relationship with a child over a long period of time. Alberta’s Family Law Act acknowledges these relationships under Part 3 of the Act by recognizing that certain people may “stand in the place of a parent” in a child’s life, and therefore be held to similar support obligations. In order to be found to stand in the place of a parent, the individual must meet the following requirements:

  • They must have been the spouse of a parent of the child or have been in a relationship of interdependence of some permanence with a parent of the child, and
  • They must have demonstrated a ‘settled intention to treat the child as the person’s own child’ which can be determined by considering factors such as the child’s age, the duration of the child’s relationship with the person, whether the person had provided direct or indirect financial support for the child and whether the person had considered adopting the child or changing the child’s surname to that person’s surname.

In cases where a step-parent meets the criteria set out in the Family Law Act, they can be found to have an obligation to provide support. In cases where a step-parent dies while providing child support pursuant to a court order or another legal arrangement, the child will continue to be entitled to support from the step-parent’s estate.

However, if there is no order in place when the step-parent dies, the step-child would not be entitled to apply for support from the deceased’s estate. This is due to the Wills and Succession Act, which has always held a more narrow definition of the term “parent”. In fact, the Wills and Succession Act adopts the definition of ‘parent’ set out under Part 1 of the Family Law Act, which has a more narrow scope than the expanded definition for the purposes of support under Part 3. A new report from the Alberta Law Reform Institute (ALRI) hopes to change this. As stated on page vi of the Report:

ALRI’s preliminary view is that the difference between the two statutes is not justified. It is in the best interests of a child to have the opportunity to apply for support, regardless of whether the person standing in the place of a parent is living or dead.

Proposed Changes to Alberta’s Wills and Succession Act

The ALRI proposes that the Wills and Succession Act expand its definition of the term ‘parent’ to mirror that found in Part 3 of the Family Law Act. This would provide children who rely on a person “standing in the place of a parent” such as a step-parent with a means to apply for needed support in the event of that person’s death. The ALRI is careful to point out that the proposed changes would not create an automatic right of support, but merely provide children with the right to make a claim against the estate. From there, it would be up to a court to consider various factors in making a decision in the matter.

If incorporated into provincial succession law, this could have a significant impact not only on the rights of children to obtain support from a deceased person who acted as a parent. In addition, adults to whom this expanded definition could apply would need to take potential claims against their estate into consideration when making their estate plans.

The ALRI is currently accepting input from Alberta’s legal professionals and the general public on the proposed changes, through the end of January 2021. The ALRI will consider all input before making final recommendations to Alberta’s government. Comments may be submitted here.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child and spousal support awards following the breakdown of a relationship. We will work with you to ensure that you receive a support award that accurately reflects the true financial positions of the parties. Contact our office today by calling us at 403-910-3000 or contact us online.

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