M.S. v. A.J.A.A., (2001) 294 A.R. 82 (ProvCt)

• Judge: Flatters, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 01, 2001
• Citations: (2001), 294 A.R. 82 (ProvCt);2001 ABPC 99

M.S. v. A.J.A.A. (2001), 294 A.R. 82 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JN.080

In The Matter Of An Application For Custody of the Child B.D.A., Born February [x], 1992

M.S. (applicant) v. A.J.A.A. (respondent)

(CFC 123985; 2001 ABPC 99)

Indexed As: M.S. v. A.J.A.A.

Alberta Provincial Court

Flatters, P.C.J.

June 1, 2001.

Summary:

M.S. and A.J.A.A. separated after cohabiting for 11.5 years. M.S. had step-parented A.J.A.A.'s natural daughter for nine years. M.S. continued as the child's primary parent after the parties' separation. M.S. sought joint custody with A.J.A.A. under s. 32 of the Provincial Court Act with M.S. having residential care. In a separate pending application, she sought a private guardianship order respecting the child.

The Alberta Provincial Court held that M.S. stood in loco parentis to the child and was therefore a "parent" within s. 32. The court held that it was in the child's best interests that M.S. be granted joint custody with A.J.A.A. in the interim until a long term parenting plan could be worked out.

Family Law - Topic 1812

Custody and access - General - Persons in loco parentis - Section 32 of the Provincial Court Act provided, inter alia, that, if "parents" of a child were living separate and apart, the court could make an order respecting custody of the child - The Alberta Provincial Court concluded that when a person stood in loco parentis to a child, then legal status as "parent" was created and standing to apply for custody, absent guardianship, under s. 32 was invoked - In determining if an applicant stood in loco parentis to a child, and therefore had the right to apply for custody as a "parent" under s. 32, it was the essence and nature of the parent/child relationship which should be examined in making that determination - Thereafter, an application for custody could be granted if it was in a child's best interests - See paragraph 47.

Family Law - Topic 1812

Custody and access - General - Persons in loco parentis - M.S. and A.J.A.A. separated after cohabiting for 11.5 years - M.S. had "step-parented" A.J.A.A.'s natural daughter for nine years - M.S. continued as the child's primary parent after the parties separated - M.S. sought joint custody of the child with A.J.A.A. under s. 32 of the Provincial Court Act with M.S. having residential care - The Alberta Provincial Court held that M.S. stood in loco parentis to the child - She voluntarily assumed the role of parent to the child and continued that role in every respect following the parties' separation - She was therefore a "parent" within s. 32 of the Act - It was in the child's best interests that M.S. be granted joint custody with A.J.A.A. in the interim until a long term parenting plan could be worked out.

Family Law - Topic 1893.1

Custody and access - Considerations in awarding custody - Contest between parents and stepparents - [See both Family Law - Topic 1812 ].

Words and Phrases

Parent - The Alberta Provincial Court discussed the meaning of this word as used in s. 32 of the Provincial Court Act, R.S.A. 1980, c. P-20, which dealt with custody of children - See paragraphs 11 to 36.

Words and Phrases

Child - The Alberta Provincial Court discussed the meaning of this word as used in s. 32 of the Provincial Court Act, R.S.A. 1980, c. P-20, which dealt with custody of children - See paragraphs 11 to 36.

Cases Noticed:

J.S. v. K.K. (2000), 259 A.R. 357; 80 Alta. L.R.(3d) 64 (Prov. Ct. Fam. Div.), refd to. [para. 4].

White v. Barrett (1973), 10 R.F.L. 90 (Alta. C.A.), refd to. [para. 11].

Gingell v. R. (1976), 5 N.R. 443; 21 R.F.L. 257 (S.C.C.), refd to. [para. 13].

R.L. v. V.L. (1999), 251 A.R. 364; 73 Alta. L.R. 66 (Q.B.), refd to. [para. 14].

Shtitz v. Canadian National Railway, [1927] 1 D.L.R. 951 (Sask. C.A.), refd to. [para. 15].

Bennet v. Bennet (1879), 10 Ch. D. 474, refd to. [para. 15].

Theriault v. Theriault (1994), 149 A.R. 210; 63 W.A.C. 210; 2 R.F.L.(4th) 157 (C.A.), refd to. [para. 16].

Chartier v. Chartier (1999), 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19; 43 R.F.L.(4th) 1 (S.C.C.), refd to. [para. 16].

Ex parte Pye; Ex parte Dubost (1811), 34 E.R. 271, refd to. [para. 16].

Learning Disabilities Association of Alberta et al. v. Board of Education of Edmonton Public Schools et al. (1994), 162 A.R. 173; 83 W.A.C. 173 (C.A.), refd to. [para. 23].

R. v. J.L.S. and T.S. (1995), 162 A.R. 388; 83 W.A.C. 388 (C.A.), refd to. [para. 23].

Christensen (Bankrupt) v. Christensen (1996), 184 A.R. 194; 122 W.A.C. 194 (C.A.), refd to. [para. 23].

Valiquette v. Jabs (1986), 72 A.R. 133 (Prov. Ct. Fam. Div.), refd to. [para. 24].

R.S. v. A.L. (1994), 158 A.R. 227; 6 R.F.L.(4th) 19 (Q.B.), dist. [para. 28].

Langdon v. York (1995), 161 A.R. 279 (Q.B.), refd to. [para. 30].

Williams v. Williams (1995), 172 A.R. 10; 13 R.F.L.(4th) 152 (Q.B.), refd to. [para. 32].

A.D.B. v. B.A.S. (2001), 290 A.R. 287 (Q.B.), refd to. [para. 33].

Tucker v. Tucker (1998), 219 A.R. 383; 179 W.A.C. 383; 41 R.F.L.(4th) 404 (C.A.), refd to. [para. 41].

Statutes Noticed:

Interpretation Act, R.S.A. 1980, c. I-7, sect. 10 [para. 25].

Provincial Court Act, R.S.A. 1980, c. P-20, sect. 32(1), sect. 32(2), sect. 32(5) [para. 9].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), p. 7 [paras. 21, 22].

McLeod, James G., Child Custody Law and Practice (1992 Looseleaf Ed.), pp. 1-3, 1-8 [para. 43]; 8-6 [para. 42]; 8-10 [para. 44]; 8-20 [para. 42].

Counsel:

None disclosed.

This application was heard before Flatters, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on June 1, 2001.