Suppose a child has three legally-recognized parents. Suppose further that two of them are in a couple, and they break up. Would this entitle the child to more total financial support than if there were only two parents? It’s an interesting question, and a potentially live issue in the context of fertility law. It has not yet been addressed by the courts. In theory, the answer seems to be yes — the child would get more.
This question owes its existence, in Ontario, to the groundbreaking 2007 appeal court decision AA v. BB, where the court ruled that a child can have more than two legally-recognized parents. In that case, the court declared that in addition to the biological mother and biological father, the mother’s common-law wife was also a parent. (see April 4 2014 blog) The court noted that being declared a parent not only brings “practical and symbolic recognition of the parent-child relationship,” it also brings into play “all the rights and obligations of a custodial parent.” And while the court didn’t come right out and say so specifically, it seems reasonable to infer that these obligations would include paying child support in the event of break-up.
Child support is a two-pronged obligation: firstly, there is the basic “table” amount a payor must pay each month, geared to the payor’s income, in accordance with the table in the Child Support Guidelines. This amount is meant to cover ordinary day-to-day expenses. Secondly, there are the so-called “section 7” expenses which may get added on to the payor’s bill if they are necessary for the best interests of the child, and if the payor can reasonably afford them. Section 7 payments cover things like child care, extracurricular activities, private school, and college or university. So, it would seem that if you’re planning on being born, you should seriously consider having three parents — preferably wealthy ones — so you can eventually be sent to Harvard.
Would it really work that way if push came to shove? It has never been litigated, as far as the writer of this blog is aware. However, it does seem reasonable to suppose that if a break-up occurred in a three-parent family, and if the third parent, who had previously been declared by a court as a “legal” parent, were to now try to avoid child support obligations, it would be a contradiction — indeed a slap in the face — to the very declaration they had taken the trouble to get. Hence, accordingly, it would seem repugnant in law for a court to allow any legal parent — no matter how many of them there might be — to shirk child support.
True, there is much case law on the child support obligations of step parents, whom the law defines as people who have demonstrated a “settled intention” to treat a child as their own. (Note: once this intention is settled, it is extremely difficult to “unsettle.”) Basically, step parents may well be on the hook for child support in the event of a break-up, and courts have discretion to determine the amount they must pay according to what is “appropriate” in the circumstances. The amounts vary case by case, and there seems to be no consistent judicial philosophy.
Would a court follow the step parent approach to child support in a case where all parents are “legal” parents — e.g., the two biological parents, plus a third legally declared parent? Or would a court instead automatically impose the full table amount, plus section 7 expenses, on the parent(s) who do not have (or share) primary residence of the child?
We must wait and see. However, in cases where all the parents are legally-recognized as full-on “parents,” there is reason to doubt that the step parent approach (i.e. discretionary according to what is “appropriate”) will be followed. After all, it is entirely possible that the “legal” parents could all re-partner with others. And these others, in turn, would be deemed step parents. Then we would have a myriad of potential sources of child support — the “legal” parents and the step parents! If this ever gets litigated, pity the poor judge who has to decide.
Bill Rogers is a Toronto lawyer and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice. He can be contacted at www.rogersfamilylaw.com