Andrews v. Andrews, (1992) 97 Sask.R. 213 (CA)

• Judge: Tallis, Vancise and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 12, 1991
• Jurisdiction: Saskatchewan
• Citations: (1992), 97 Sask.R. 213 (CA);1992 CanLII 8326 (SK CA);1992 CanLII 8326 (BS SC);88 DLR (4th) 426;[1992] 3 WWR 1;38 RFL (3d) 200;[1992] SJ No 52 (QL);12 WAC 213;97 Sask R 213

Andrews v. Andrews (1992), 97 Sask.R. 213 (CA);

    12 W.A.C. 213

MLB headnote and full text

Mark Steven Andrews (appellant/respondent) v. Brenda Lynn Andrews (respondent/petitioner)

(No. 376)

Indexed As: Andrews v. Andrews

Saskatchewan Court of Appeal

Tallis, Vancise and Sherstobitoff, JJ.A.

February 5, 1992.

Summary:

A stepfather refused to support his wife's children following separation and divorce. The trial judge ordered him to pay child support. The stepfather appealed.

The Saskatchewan Court of Appeal allowed the appeal and set aside the main­tenance order.

Family Law - Topic 2203

Maintenance of wives and children - General principles - Persons obligated to support children (in loco parentis) - The Saskatchewan Court of Appeal discussed the concept and definition of the phrase "in loco parentis" - See paragraphs 6 to 9.

Family Law - Topic 2203

Maintenance of wives and children - General principles - Persons obligated to support children (in loco parentis) - The Saskatchewan Court of Appeal held that the court had jurisdiction to make an order for maintenance against the father of a child in loco parentis but only where the child is under 16 or over 16 but in a dependent state - See paragraph 12.

Family Law - Topic 2203

Maintenance of wives and children - General principles - Persons obligated to support children (in loco parentis) - The Saskatchewan Court of Appeal held that a parent in loco parentis or who stands in the place of a parent cannot unilaterally withdraw from the obligation to support a child or children and the determination of the amount of support should be made pursuant to ss. 15(2) and 15(5) or 17 of the Divorce Act 1985 - The court set out five principles respecting the determination of the amount of support - See paragraph 29.

Family Law - Topic 2203

Maintenance of wives and children - General principles - Persons obligated to support children (in loco parentis) - The Saskatchewan Court of Appeal set out four principles respecting the status of a person "in loco parentis" to maintain a child or children - See paragraph 27.

Family Law - Topic 2203

Maintenance of wives and children - General principles - Persons obligated to support children (in loco parentis) - Dur­ing his seven year marriage to their mother, a stepfather treated her two children as his own - Following separation and divorce, however, he refused to sup­port the children - Since the separation he had virtually no contact with them - Nei­ther had any interest in seeing the other - The children rejected him as a stepfather - The Saskatchewan Court of Appeal held that while the stepfather stood in loco parentis to the children during the mar­riage, in the circumstances it would not be reasonable for him to continue to support the children - See paragraphs 30 to 32.

Family Law - Topic 2346

Maintenance of wives and children - Maintenance of children - Obligation of spouse to support other spouse's children - [See all five Family Law - Topic 2203 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - [See all five Family Law - Topic 2203 ].

Cases Noticed:

Shtitz v. C.N.R., [1927] 1 W.W.R. 193; 21 Sask.L.R. 345 (C.A.), refd to. [para. 8].

Powys v. Mansfield (1838), 3 Myl. & Cr. 359; 40 E.R. 964, refd to. [para. 9].

Timmerman v. Timmerman, [1976] 4 W.W.R. 296; 27 R.F.L. 312 (Man. Q.B.), refd to. [para. 9].

Hock v. Hock, 3 R.F.L. 353 (B.C.C.A.), refd to. [para. 11].

Harrington v. Harrington (1981), 22 R.F.L.(2d) 40 (Ont. C.A.), refd to. [para. 11].

Carignan v. Carignan, [1990] 1 W.W.R. 641; 61 Man.R.(2d) 66 (C.A.), refd to. [para. 12].

Miller v. Miller (1988), 13 R.F.L.(3d) 80, refd to. [para. 12].

Leveridge v. Leveridge, [1974] 2 W.W.R. 652; 15 R.F.L. 33 (B.C.S.C.), consd. [para. 16].

Rathwell v. Rathwell (1981), 10 Sask.R. 407; 21 R.F.L.(2d) 301 (Q.B.), consd. [para. 18].

Horvath v. Horvath (1978), 5 R.F.L.(2d) 43 (B.C.S.C.), consd. [para. 20].

Tucker v. Tucker (1984), 43 R.F.L.(2d) 199 (Ont. S.C.), consd. [para. 22].

McCarthy v. McCarthy (1984), 44 R.F.L.(2d) 92 (Ont. U.F.C.), consd. [para. 23].

Pickup v. Pickup (1985), 34 Man.R.(2d) 217; 47 R.F.L.(2d) 188 (Q.B.), consd. [para. 25].

Statutes Noticed:

Divorce Act, S.C. 1967-68, c. 24, sect. 2(a) [para. 7].

Divorce Act, S.C. 1986, c. 4, sect. 2 [paras. 5, 7, 11]; sect. 15 [para. 27]; sect. 15(2) [paras. 5, 29]; sect. 15(5) [paras. 5, 29]; sect. 17 [paras. 27, 29]; sect. 17(1) [para. 5].

Authors and Works Noticed:

Farquar, K., Termination of the In Loco Parentis Obligation of Child Support (1990), 9 Can. J. Fam. Law 99 [para. 28].

Counsel:

R. Ottenbreit, Q.C., for the appellant;

D. Kreklewich, for the respondent.

This appeal was heard before Tallis, Vancise and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal on September 12, 1991. The decision of the Court of Appeal was delivered on February 5, 1992, by Vancise, J.A.