BY: VALERIE DYE
Under the Divorce Act a child of the marriage is defined as ‘a child of two spouses or former spouses who, (1) is under the age of majority and who has not withdrawn from the charge of his parents, or (2) is the age of majority but is unable, by reason of illness, disability or other cause, to withdraw from the charge of his or her parents.
The determination of who is a ‘child of the marriage’ is important in determining whether or not a child is entitled to receive support. The term ‘child of the marriage’ does not mean that someone who is not the biological child of the payor is not entitled to be supported. Section 2 (2) of the Divorce Act states that a child of the marriage includes a child for whom both spouses have stood in the place of the parents or where one spouse is the biological parent and the other spouse stands in place of the other biological parent.
Obviously, if a spouse is not a biological parent the court needs to determine whether or not that spouse has actually stood in the place of a parent. The Court will look at several factors including the intention of the spouse. Whether or not a spouse intended to act as a parent will be determined on the basis of that spouse’s actions. For instance, a spouse who treats the child as a part of the family and treats the child in the same way that a biological child is treated may be deemed to be standing in the place of a parent for the purposes of paying child support. The Court will also base its determination on whether or not the spouse has provided financially for the child, has disciplined the child as his or her own child or has represented to the child or to the community that he or she is the parent.
It is important to note that once a spouse has acted in the place of a parent with regard to a non-biological child and has formed a parent-child relationship this relationship cannot be unilaterally terminated. As such if the marriage ends in divorce the spouse cannot decide that he or she is not liable for support because he or she is not a biological parent.
Presumption of paternity
Apart from the considerations related to spouses who stand in place of parents, a male is presumed to be the biological parent of a child in certain situations. If the child is born during the marriage or during a period of cohabitation with the mother there is a presumption that the man is the father of the child. Further, if he marries the mother of the child shortly after the birth of the child it is presumed that he is the biological father of the child. Even where the marriage or relationship is terminated before the birth of the child there is still a presumption of paternity if the child is born within 300 days after termination of the marriage or cohabitation whether that termination occurs as a result of divorce, separation or death.
A presumption of paternity can be rebutted by conducting paternity tests to prove that the male in question is not the father of the child. However, even where the presumption is rebutted with a paternity test the male may still have to pay child support if he has treated the child as a child of the marriage.