When making the decision to blend two existing families, particularly when one or both people in the relationship have minor children, there are several unique legal considerations that may come into play. It is important for both the parent and stepparent to fully understand the various legal consequences of the union when it comes to one another’s children so that they can properly plan ahead.
Below we will outline some of the most common legal questions that can arise with respect to blended families, ranging from estate considerations to child support obligations and custody and access questions.
In Alberta, the rules that govern the oversight of wills and estates are set out in the provincial Wills and Succession Act. In this statute, the term “child” is defined as follows:
Turning to the definition of “parent” under Part I of the Family Law Act, this term is defined as a birth mother or biological father, or a person who became a parent to a child via assisted reproduction or adoption.
Given that stepchildren are not automatically deemed to be the testator’s children under provincial estate law, this means that if a will simply makes reference to the testator’s children, a court will not presume this reference applies to stepchildren. Court’s may consider other evidence which goes to show the testator’s intention to include stepchildren as their children under a will, however, the best approach is to make the intention clear by stating as such in the will.
Earlier this year, the Alberta Law Reform Institute published a report urging provincial lawmakers to amend current estate laws. The amendments allow a child to apply for family maintenance and support from the estate of a person who “stood in the place of a parent”, such as a stepparent. Currently, a stepchild is permitted to seek such support from their stepparent in life, however, this right does not extend to the stepparent’s estate after death. The Institute proposed that such an amendment would close this gap in the current law.
All this being said, if a stepparent wishes to leave a portion of their estate to a stepchild after their death, they should expressly state this in their will, to avoid the potential for costly and complicated estate litigation after their death.
As mentioned above, stepchildren are currently able to apply for family maintenance and child support from a person who is “standing in the place of a parent”. A person may be deemed to be standing in the place of a parent if:
When examining a stepparent’s demonstrated intention, a court will consider factors such as:
There are two ways in which a stepparent can seek permission from the court to spend time with their stepchild post-divorce or separation: a parenting order or contact order.
Under the Family Law Act, a parent or a person standing in the place of a parent can seek an order granting them parenting time with the child and/or involvement in the decision-making process with respect to the child’s education, religious upbringing, medical care, or other similar issues. This order may include details such as the scheduling of visitation and access between the parents, the allocation of the rights and responsibilities of each parent with respect to major decisions, and the method for dispute resolution in the event of a disagreement.
If the stepparent is not able to demonstrate that they were standing in the place of a parent, they can seek the court’s permission to apply for a contact order upon separation. A contact order is an order in which a court can grant access between a child and any person who is not a parent, or a person standing in the place of a parent. When determining whether or not to grant a contact order, a court will consider:
Even if the order is granted, this may not result in mandated face-to-face contact between the applicant and the child. Courts also have the discretion to grant an order providing for communication via telephone, video chat, email, or other forms of written or verbal communication.
At Mincher Koeman, we practice family law exclusively. Our divorce lawyers have represented clients in all types of matters regarding decision-making ability and parenting time and child support issues, ranging from amicable to high conflict. We provide each client with a full picture of their rights and obligations with respect to the care of their child or children and provide experienced advocacy in court if necessary.
We have built our practice to ensure that each client receives first-rate client service and will always be sure to steer clients towards the most efficient resolution of their matter, keeping costs down whenever possible. To discuss your matter with a family lawyer, contact our firm by calling us at 403-910-3000 or by contacting us online.
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