One of the most contentious issues around child support is defining who is a child of the marriage, and therefore entitled to be supported.
The Divorce Act defines a “child of the marriage” as a child of two spouses or former spouses, who is under the age of majority (and under the parents’ charge), or who is the age of majority or over and still under the parents’ charge because of illness, disability or other cause.
Because the age of majority varies across jurisdictions in Canada, the definition of a “child of the marriage” will depend on the province in which the child is living. The age of majority is 18 years of age in Alberta, Manitoba, New Brunswick, Ontario, P.E.I., Quebec and Saskatchewan. For all other provinces, the age of majority is 19 years of age.
It also means that older children who continue their education beyond high school, and who continue to rely on their parents, can still be considered children of the marriage, entitled to support.
Furthermore, a child of the marriage does not have to be biologically related to both parents; it will suffice if one or both parents stand “in the place of a parent” (sometimes referred to as in loco parentis). In other words, an adopted or step parent will, in most cases, have an obligation to support a child.
The leading case for step-parents is the Supreme Court of Canada case in Chartier v. Chartier, where the court looked at the actions and intentions of parents, and stated:
38 …The appellant argued that the test for whether or not a person stands in the place of a parent should be determined exclusively from the perspective of the child. I cannot accept this test. In many cases, a child will be very young and it will be difficult to determine whether that child considers the person as a parental figure. Further, an older child may resent his or her step-parent and reject the authority of that person as a parent, even though, objectively, that person effectively provides for the child and stands in the place of a parent. The opinion of the child regarding the relationship with the step-parent is important, but it constitutes only one of many factors to be considered. In particular, attention must be given to the representations of the step-parent, independently of the child’s response.
The definition of in loco parentis has been applied quite broadly by courts. In Gardiner v. Gardiner the Supreme Court of Nova Scotia held that a woman who had no intention of adopting children but treated them kindly while living in the same house as their father stood in the place of a parent.