Second Marriage Issues Archives

When it comes to divorce and child access or support issues, one’s mind most commonly turns to the legal parents of the child. However, what about situations where a parent re-marries and their new spouse forms a close bond with the child(ren) of a previous relationship? In many step-parent/step-child relationships, serious bonds can form, and resemble that of parent and child. If that second marriage were to end in the future, does the step-parent have any claims on access to the child? For that matter, do they have any obligations to the child in terms of support? Below, we look at the current state of the law in Ontario with respect to the rights and obligations of step-parents after a divorce or separation.

Step-Parents and Child Support

Under Ontario law, it is possible that a step-parent will be found to be responsible for child support if they were married to or in a common-law relationship with one fo the child’s parents. The more the relationship resembles a parent/child relationship, the more likely this is to occur. In determining this, courts will examine a number of factors, including:

How does the child feel about their relationship with the step-parent?
Does the child take part in the extended family in the same way as a biological child?
Does the step-parent provide financially for the child to the best of their ability?
Does the step-parent discipline the child?
Does the step-parent talk about themselves as a responsible parent to the child, the family, and the larger community?
What relationship does the child have with their absent biological parent?

Even if one biological or adoptive parent to the child is already paying support from the previous relationship, it is still possible for the step=parent to be held responsible for additional support. However, unlike a parent, a step-parent’s obligation may not be determined by the federal Child Support Guidelines, which calculate support obligations based on income and other factors. A step-parent’s support may be supplementary, and therefore not quantified in the same way a parent’s support would be.

Step-Parents and Access Rights

Some people may not be aware that any individual with an interest in preserving access to a child can apply for it; it is not limited to parents. This includes grandparents, aunts, uncles and step-parents. As with any access application, the primary consideration will be the best interests of the child.

As demonstrated in a 2018 Ontario decision, even in a situation where both biological parents of a child have chosen to prohibit access by a step-parent, the court may intervene on the child’s behalf. In the case at hand, the child’s parents had divorced, and the father remarried. He was married to his second wife, the child’s step-mother, for seven years. During the course of that time, the step-mother and child bonded significantly. After the second marriage ended in divorce, both biological parents united in their desire to keep the step-mother from seeing their son.

After only being permitted to see her step-son four times in two years, the step-mother brought an application for access. The court considered the best interests of the child in light of the following:

The child loved the stepmother and the stepmother loved the child.
The child viewed the stepmother as a parent and the stepmother treated the child as her own child.
The child had an important relationship with the stepmother that needed to be preserved and fostered.
Access with the stepmother would ensure that the child could have important relationships with his sister, friends and extended family members.
The court was satisfied that the stepmother would act responsibly in parenting the child.

The court granted the step-mother access of one weekend per month and stressed the importance that the child be allowed to enjoy relationships that were important to him.

As this case shows, even when both parents are opposed to contact between their child and a third party, the courts will intervene when the contact is in the child’s best interests. As stated above, the bond between step-parent and child can be powerful, and just like it would be harmful to keep a child from a loving parent, the same can be said about a loving step-parent.

At Baker & Company, our family law lawyers are committed to minimizing as much stress as possible for clients involved in a high-conflict divorce or separation or other family law dispute. We will help you understand what you can expect, help you communicate with your ex-spouse, put agreements into place to prevent future disputes from arising, and, above all, represent your best interests. Call us at 416-777-0100 or contact us online for a consultation.

Most people understand the importance of putting a carefully considered estate plan into place in order to ensure that one’s wishes are carried out with respect to the distribution of their assets after death. Married and common law couples generally plan their estates so that their assets pass to their spouse after death, who will then in turn pass all of the couple’s assets onto the couple’s children, if they have them.

When a young couple marries or moves in together before having children or acquiring significant assets, estate planning is generally not a complicated prospect. When two people share children and build their wealth together from the start, each party usually has similar long-term goals with respect to their estates and beneficiaries. However, when couples marry or enter into a common law relationship later in life due to divorce or the death of their first spouse, estate matters can become considerably more complicated. Each person is more likely to have grown children, established assets and other interests that were built before the relationship began. This can drastically affect the estate planning process in multiple ways.

How Much to Leave to a Surviving Second Spouse

When an estate plan involves a second spouse or common law partner as well as grown children from a previous relationship, determining the best method for the distribution of assets is key. The risks of leaving everything to the surviving spouse with the intention that they will then leave assets to one’s children after their death are numerous. The surviving spouse may not respect the intention of the original plan, gifting funds during their lifetime to their own children, charitable organizations or elsewhere, leaving little or nothing to gift to the children of the deceased when they pass. The surviving spouse may also enter into a new relationship, one that may involve other children and different or shifting financial priorities.

Aside from the potential for one’s assets to be depleted by the surviving spouse, there is also an emotional component to consider. Grown children may feel hurt, angered or forgotten should a spouse who is not their parent inherit the entire estate in favour of them, even if the intention exists that the spouse will, in turn, leave assets to the children upon their death. This option leaves a lot of room for uncertainty, which is often what a testator is most trying to avoid when making an estate plan.

Another factor to consider is the taxability of certain assets. Assets such as Registered Retirement Savings Plans (RRSPs), Registered Retirement Income Funds (RRIFs), and Tax-Free Savings Accounts (TFSAs), may or may not be subject to taxes, depending on the beneficiary. Each of these assets can be transferred tax-free upon death to a surviving spouse, however, if they are left to children of the deceased, all will face tax penalties. This may not be a reason to leave these to a spouse rather than to one’s children, but if making decisions on which assets to leave to whom, this should be taken under advisement.

Leaving too little to a second spouse or partner is also a concern, particularly when there is a significant disparity in the parties’ assets and income. Leaving too little may result in insufficient assets, and the surviving spouse may find themselves needing to postpone retirement or facing the need to significantly curb spending in their later years.

A qualified estate planning lawyer will review all aspects of your financial situation and advise on how to determine a happy medium to the benefit of all family members over the long term.

The Matrimonial Home

When a couple shares a home, traditionally they will both go on title as joint tenants, which means that upon the death of one spouse, full ownership will transfer by right to the surviving spouse. When a couple each have children from previous relationships, they may choose instead to own the home as tenants in common. This means that they can allocate the percentage of ownership between them (often a 50/50 split) and when one spouse dies, their share in the property will be distributed according to their will. However, this can result in an awkward ownership split between a surviving spouse and the deceased’s children. Depending on family dynamics, this option could be just fine, but it may cause problems if any tension exists between the surviving spouse and the deceased’s children.

Another option that couples sometimes choose, particularly in common law relationships where the home is solely owned by one party, is for the spouse who owns the home to designate a life estate in the home for their surviving spouse or partner in their will. This option guarantees the right of the surviving spouse to remain in the home for their lifetime (a right not inherent in common law relationships), with the property ownership transferring to the owner’s children upon their death (or sooner, if the surviving spouse enters into a new relationship and/or chooses to leave of their own volition).

Obtaining Independent Legal Advice

When planning an estate involving later in life spouses or common law partners and children from previous relationships, it is advisable that both parties retain their own independent legal counsel. This will ensure that each party receives advice designed to protect their individual interests and allow the design of a plan that adequately addresses each party’s stated intentions.

At Baker & Company, our Toronto estate planning lawyers can help you establish an estate plan tailored to your needs, no matter your current family status. We have extensive experience and expertise in providing you with estate planning advice and implementing your desired plan. Call us at 416-777-0100 or contact us online for a consultation.