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In family law, we are seeing an increasing number of clients with multiple ex-spouses and children from past relationships. These clients bring with them new challenges for family lawyers. For example, clients may want to have the same parenting regime with children from multiple relationships, or may wonder why their child support obligations are so much higher than if all of their children arose from one relationship. It is important for family lawyers to understand how children from previous relationships can cause additional complexity to a client’s dispute regarding custody, access and support.

A parent paying child support must pay the Child Support Guidelines’ table amount of child support for each particular household of children. Understandably, some clients may think this is unfair, because it requires them to pay a higher amount of child support than they otherwise would have if the children had been born of the same relationship. For example, a client who makes $45,000 annually would be required to pay $644 per month for two children in the same household. By contrast, they would be required to pay $406 per month for each of two children if they were in separate households, or a total of $812 per month.

Is there an argument to be made for splitting the $644 table amount and giving one half to each child’s household? The general answer is “no.” The courts have said that the Child Support Guidelines assume “economics of scale”; that is, the cost of supporting two children under the same roof is less than supporting two children under separate roofs. The Guidelines assume that all children are living under the same roof, and therefore the Guidelines should be applied separately to each household to determine the amount of child support that must be paid to that household.

A client may be able to pay a reduced amount of child support if he or she can show that paying table child support for multiple households will cause him or her undue hardship. The threshold for proving undue hardship is very high. Nonetheless, it is a consideration to which family lawyers should turn their mind when clients may be financially struggling to maintain their child support obligations, particularly if there are other factors, such as a high debt load arising from one or more of the relationships.

With respect to custody and access, step- or half-siblings’ relationships with each other may be an important factor for a judge determining what parenting regime is in the child’s best interests. Conversely, where a child from a prior relationship is endangering the physical or mental wellbeing of the child at issue, a court may conclude that the child should not live with that half- or step-sibling. This was the case in A.A.-L. v. M.L. where the mother’s former child’s aggressive tendencies towards the parties’ child was a factor in the court’s determination that the parties’ child should reside primarily with her father.

A client’s history with respect to his or her children from prior relationships may come back to hurt their current claims regarding custody and access or even support. In Venco v. Lie, the court ordered a lump sum child support payment in part because the payor had a history of child support arrears for his child of a former relationship.

S.E.M. v. J.J.R. aptly decided by Justice Jennifer MacKinnon, is an excellent example of how a client’s history with his children from a first family can affect claims in respect to a child from a subsequent relationship. In this case, the court was asked to determine custody, access and child support for the parties’ only child. The father had two daughters from a previous relationship, for which he shared joint custody and had them on an alternating weekly basis with the children’s mother.

At the trial, the first wife was called to give evidence with respect to the father’s behaviour during his first marriage, the difficulties of co-parenting with the father and her willingness to work with the second wife to maintain the bonds between the half-siblings. This and other evidence concerning the father’s relationship with his older children were highly relevant to the court’s decision on custody and access pertaining to his youngest child. On the issue of child support, the father unsuccessfully tried to argue that his child support obligation should be lower than the table amount, because of undue hardship caused by the child support payable for his other children, and because of debt arising from his first marriage.

In an interesting twist, the father and the first wife had also returned to court to argue changes to their parenting and child support regime following events arising out of the husband’s separation from his second wife.

This article originally appeared in the May 27, 2016 issue of The Lawyer’s Weekly

Check out other Family Law articles written by our lawyers.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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