Desjardines v. Desjardines, (1991) 113 A.R. 168 (QB)

• Judge: Dea, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 03, 1991
• Citations: (1991), 113 A.R. 168 (QB)

Desjardines v. Desjardines (1991), 113 A.R. 168 (QB)

MLB headnote and full text

Graydon Anthony Desjardines (petitioner) v. Karen Lynn Desjardines (respondent)

(Action No. 4803 57662)

Indexed As: Desjardines v. Desjardines

Alberta Court of Queen's Bench

Judicial District of Edmonton

Dea, J.

January 3, 1991.

Summary:

A divorced husband applied for a declaration that he did not stand in loco parentis to a child of his ex-wife, for return of maintenance paid and variation of the divorce decree by striking out the obligation to pay child support.

The Alberta Court of Queen's Bench allowed the application in part.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of - [See Family Law - Topic 4024].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of - A stepfather was ordered to pay child support upon divorce - By trial, the stepfather and child were estranged but the issue whether the in loco parentis status continued was not raised - In cancelling the order for support, the Alberta Court of Queen's Bench held that the stepfather's unilateral termination of the in loco parentis status subsequent to the divorce was a change in circumstances that entitled him to variation under s. 17 of the Divorce Act.

Family Law - Topic 4024

Divorce - Corollary relief - Maintenance awards - To stepchildren - Upon divorce a husband was ordered to pay support for his wife's child to whom he stood in loco parentis during marriage - By the time of trial the husband and child were estranged but the issue of the husband continuing status as an in loco parent was not raised - The husband subsequently applied to cancel child support - The Alberta Court of Queen's Bench held that a stepparent could unilaterally terminate the in loco parentis status but the termination did not vary the support order - Variation required application under s. 17 of the Divorce Act for changed circumstances.

Cases Noticed:

Hock v. Hock, [1971] 4 W.W.R. 262; 3 R.F.L. 353, consd. [para. 9].

Rathwell v. Rathwell (1981), 10 Sask.R. 407; 21 R.F.L.(2d) 310, refd to. [para. 9].

Pickup v. Pickup; Pickup v. Herrah (1985), 34 Man.R.(2d) 217; 47 R.F.L.(2d) 188, consd. [para. 9].

McCarthy v. McCarthy (1984), 44 R.F.L.(2d) 92, consd. [para. 9].

Carignan v. Carignan (1989), 61 Man.R.(2d) 66; 22 R.F.L.(3d) 376, appld. [para. 9].

Statutes Noticed:

Divorce Act, S.C. 1985, c. 4, sect. 2(2) [para. 8]; sect. 17(1), sect. 17(4) [para. 17]; sect. 17 [para. 20].

Counsel:

J.R.B. Shortreed, for the applicant;

L. Isaac, for the respondent.

This application was heard before Dea, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 3, 1991.

Facts