People beginning a relationship with someone who has children should understand that they could be held liable for child support upon separation, even if the biological parent is still alive, says Fredericton family lawyer and mediator Jennifer Donovan.
“Don’t enter into these situations haphazardly, thinking that you won’t have an obligation to support the family when it’s over,” says Donovan, owner of J. Donovan Law Group.
“When you start a relationship where there are minors, you are stepping into a potentially serious and important role that may not end when the romance does. So take that step very seriously,” she tells AdvocateDaily.com.
Donovan explains that in family law, the phrase “in loco parentis” is commonly used, which means “standing in the place of a parent.”
“This issue mainly involves men who are ordered by the courts to pay child support for the children in the relationship, whether the biological father is alive or not,” she says.
If the children looked at their mother’s new partner as a father figure, or if he provided any kind of financial support such as helping to pay the rent or buy food, that would likely trigger child support obligations, Donovan says.
“If they later separate, the man can’t just walk away and think he is not exposed to child support obligations,” she says.
Donovan says there’s really no way to avoid this responsibility, unless people take the proper steps at the beginning of the relationship, including seeing a lawyer to have a cohabitation agreement drawn up.
“Even if that person agrees to contribute financially to the household, the agreement could state those contributions shall not be deemed as supporting the children,” she says.
While cohabitation agreements are not a perfect defence to avoid liability, Donovan says they do show the intention of the parties going into the relationship.
“If the agreement specifies a man has no financial responsibility for the child, and the relationship ends, the woman can’t really argue that she is unable to make it without his support,” she says.
When deciding whether a person in a relationship was “in loco parentis,” Donovan says the judge will look at factors such as the time the couple was together.
“It’s a common misconception to think these obligations only arise after the six-month mark,” she says. “There is no fixed time period the court looks at. Decisions are made on a case-by-case basis.”
The age of the children is also a factor, Donovan says, noting the age of majority in New Brunswick is 19, with those under that threshold entitled to support unless special conditions arise.
“If the child is 17 or 18, has graduated high school and is self-sufficient, then excellent arguments can be made that they’re not entitled to support,” she says.
Another factor would be if the biological father was still alive, and is already contributing to child support, Donovan says.
“Perhaps the biological father is only paying a small portion because that’s all he can afford, so support from the new man in the family’s life will be needed,” she says.
The final factor would be if the children of the relationship have special needs arising from conditions such as autism, which could result in extra expenses for the caregiver, Donovan says.
“In all cases, know what you are getting into, and if you want to prevent future obligations in the event of a separation, then obtain legal advice early, and get the appropriate contracts in place,” she says.