Chartier v. Chartier, (1997) 123 Man.R.(2d) 127 (CA)

• Judge: Philp, Twaddle and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 14, 1997
• Jurisdiction: Manitoba
• Citations: (1997), 123 Man.R.(2d) 127 (CA)

Chartier v. Chartier (1997), 123 Man.R.(2d) 127 (CA);

    159 W.A.C. 127

MLB headnote and full text

Temp. Cite: [1997] Man.R.(2d) TBEd. DE.023

Sharon Leslie Chartier (petitioner/appellant) v. Gerald Leo Joseph Chartier (respondent/respondent)

(Suit No. AI 96-30-02976)

Indexed As: Chartier v. Chartier

Manitoba Court of Appeal

Philp, Twaddle and Monnin, JJ.A.

November 14, 1997.

Summary:

A wife applied under the Divorce Act for child support for her child.

The Manitoba Court of Queen's Bench, in a judgment reported 111 Man.R.(2d) 27, dismissed the wife's application because the husband had repudiated his in loco parentis relationship with the child. The wife appealed.

The Manitoba Court of Appeal, in a judg­ment reported 118 Man.R.(2d) 152; 149 W.A.C. 152, dismissed the appeal. The wife brought a motion to the Manitoba Court of Appeal for leave to appeal to the Supreme Court of Canada.

The Manitoba Court of Appeal allowed the motion.

Family Law - Topic 2203

Maintenance of wives and children - Gen­eral principles - Persons obligated to sup­port children - In loco parentis - [See Practice - Topic 9090 ].

Practice - Topic 9090

Appeals - Supreme Court of Canada - Leave to appeal by a provincial court of appeal - A wife's application under the Divorce Act for child support for her child was dismissed at trial and on appeal because the husband had repudiated his in loco parentis relationship with the child - The Manitoba Court of Appeal's decision in Carignan v. Carignan was followed - The wife moved for leave to appeal to the Supreme Court of Canada - The Manitoba Court of Appeal granted the motion - The question in issue arose under a federal statute hence its national dimension and was of "obvious and compelling import­ance" - Also, the Carignan decision was not universally followed in other provinces - Finally, Manitoba courts struggled with the interpretation of the "child of the mar­riage" definition in the Divorce Act - See paragraphs 1 to 14.

Cases Noticed:

Carignan v. Carignan (1989), 61 Man.R.(2d) 66 (C.A.), consd. [para. 1].

Central Computer Services Ltd. and Com­cheq Services Ltd. v. Toronto-Dominion Bank, [1980] 3 W.W.R. 587 (Man. C.A.), refd to. [para. 4].

Pearlman v. Winnipeg (City) et al. (1992), 81 Man.R.(2d) 274; 30 W.A.C. 274 (C.A.), refd to. [para. 4].

Paulet v. Brandon University Faculty Association et al. (No. 2) (1991), 76 Man.R.(2d) 283; 10 W.A.C. 283 (C.A.), refd to. [para. 4].

Winfield Developments Ltd. v. Winnipeg (City) (1989), 60 Man.R.(2d) 285 (C.A.), refd to. [para. 4].

Campbell v. East-West Packers (1969) Ltd. (1982), 20 Man.R.(2d) 146 (C.A.), refd to. [para. 4].

Lafontaine v. Montcalm (Rural Municipal­ity), [1964] S.C.R. 637, refd to. [para. 5].

Ashmead v. Medical Services Commission (B.C.), [1992] 6 W.W.R. 763; 15 B.C.A.C. 133; 27 W.A.C. 133 (C.A.), consd. [para. 7].

Andrews v. Andrews (1992), 97 Sask.R. 213; 12 W.A.C. 213; 38 R.F.L.(3d) 200 (C.A.), refd to. [para. 11].

Theriault v. Theriault (1994), 149 A.R. 210; 63 W.A.C. 210; 2 R.F.L.(4th) 157 (C.A.), refd to. [para. 11].

Statutes Noticed:

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 37 [para. 2].

Authors and Works Noticed:

Diduck, Alison, Carignan v. Carignan: When is a Father not a Father? (1990), 19 Man. L.J. 580, p. 600 [para. 10].

Counsel:

C.B. Paul, for the appellant;

P.R. Girdlestone, for the respondent.

This motion was heard on October 15, 1997, by Philp, Twaddle and Monnin, JJ.A., of the Manitoba Court of Appeal.

The judgment of the Court of Appeal was delivered on November 14, 1997 and the following opinions were filed:

Philp, J.A. (Twaddle, J.A., concurring) - see paragraphs 1 to 14;

Monnin, J.A. (dissenting) - see para­graphs 15 to 22.