Little-Known Obligation of Cohabitation

04 Jan

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Little-Known Obligation Of Cohabitation - Stephen Durbin And Associates

It may come as a surprise to many that a person who is not the biological parent of the children in a relationship may be found to have support obligations for those children. If the partner who is not the biological parent cohabits with their partner’s children in the same residence for some period of time, depending up on the nature of their relationship with the children, they may be found liable to pay child support for children from the new partner’s prior union. The ability to pay of the other biological parent (the former partner) of those children is certainly a factor; however, it is rarely a factor that fully absolves someone from the responsibility to pay child support when stepping into a parental role as a non-biological parent.

Being in Loco Parentis

The legal term describing someone who steps into the position of a parent is “in loco parentis.

Factors courts look at in determining in loco parentis are:

a) Participation of the children and purported parent in family events;

b) Purported parent’s financial contribution towards the children;

c) Purported parent’s participation in household duties related to the children;

d) Purported parent’s involvement in the discipline of the children;

e) Children’s use of purported parent’s surname;

f) Purported parent’s presentation, explicit and implicit, as parent to the children, to family, and to the community;

g) Purported parent’s consideration and related efforts to adopt the children;

h) Reference to the purported parent as “mom” or “dad”;

i) Length of the purported parent’s relationship with the children;

j) Age of the children when the relationship commenced; and,

k) Nature of the children’s relationship with their biological parents.

Are people who begin to cohabit capable of contracting out of that requirement? The short answer is “no”. The reason for this is the parens patriae jurisdiction of the court. Simply put, it means the court is the over-arching parent and final arbiter on parenting issues. A court of law can step into an agreement between parents, biological or otherwise, and set aside any prior agreement they have made that the court considers not to be in the best interest of the children.

As an example, suppose cohabitating couple “N” and “A”. N comes into the relationship with three children from a prior relationship. N and A live together for five years, and the three children reside primarily with them. N and A then part ways. The children stay with N. The other biological parent of the three children is no longer in the picture, financially speaking, as they are deceased, have disappeared, or are unable to pay sufficient child support. In this situation, A could be liable to pay table child support for the three children, as well as what are referred to as section 7 special and extraordinary expenses.

Assume that A’s income is $150,000 per annum and N’s income is $50,000 per annum. Based on the Child Support Guidelines, A’s monthly child support obligation would be $2,698. In addition, A could be responsible for what should probably be a proportional amount of section 7 expenses. Based on the relative incomes, that would be 75% of things like orthodontic work not covered by benefits, high-end recreational sports, post-secondary tuition, and other significant expenses not covered by child support.

Needless to say, one should carefully consider this aspect of family law before taking the step of beginning to cohabit with someone. For someone earning less than the other partner, and coming into the relationship with children, their life and that of the children might be substantially improved beyond what it would otherwise have been, but woe is the unsuspecting higher income-earner who enters into this kind of relationship unaware of the full implications of en loco parentis parenthood. Those concerned can contact a family lawyer to help them navigate these implications of cohabitation.

The above is the current state of Ontario law. The law on this topic varies from province to territory. Be sure to contact a family law practitioner within your jurisdiction to ensure you have all the information you need.

The abiding mantra is always the same: Avoid serious, and sometimes irreversible, missteps in the process of separation and divorce. Retain a good family lawyer early on in the process, advisably prior to entering into any relationship.

Please be advised that all articles written on this website are for informational purposes only and do not constitute legal advice on any subject matter. The information contained within these articles is subject to change at any time and should not be acted upon without previous consultation with legal counsel. 

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