E. Obligation of De Facto Parent

Author:Julien D. Payne - Marilyn A. Payne

Page 372

1) Relevant Statutory Provisions

The definition of "child of the marriage" in section 2(2) of the Divorce Act reads as follows:

2(2) For the purposes of the definition of "child of the marriage" in subsection (1), a child of two spouses or former spouses includes:

(a) any child for whom they both stand in the place of parents; and

(b) any child of whom one is the parent and for whom the other stands in the place of a parent.

A divorcing spouse can, therefore, be ordered to pay child support even though he or she is not the biological parent of the child. For example, a divorcing step-parent, who stands "in the place of a parent" to his or her spouse’s children from a previous marriage, may be ordered to support those children.7

Page 373

A spouse stands in the place of a parent within the meaning of section 2(2) of the Divorce Act when that spouse by his or her conduct manifests an intention of placing himself or herself in the situation ordinarily occupied by the biological parent by assuming the responsibility of providing for the child’s economic and parenting needs. Judicial opinion is divided on the question whether the requisite intention can exist when a husband who is alleged to be standing in the place of the parent erroneously believes that he is the father of the child.8In Peters v Graham,9Boudreau J, of the Nova Scotia Supreme Court, concluded that a husband, who unknowingly stands in the place of a parent to his wife’s children because he erroneously believes that he is their biological father, may be ordered to support the children but the amount of support to be paid may be reduced pursuant to section 5 of the Federal Child Support Guidelines in light of the concurrent obligations owed by the children’s biological father and the wife’s "common-law spouse" who currently stands in the place of a parent to the children.

While financial contribution towards the support of the child is a material consideration, it is not decisive in determining whether the contributor stands in the place of a parent. Accordingly, a step-parent is not liable to pay support where his or her relationship with the stepchildren "never jelled into a family unit," even though he or she made indirect contributions to an educational trust for the children by way of contributions being paid out of joint family accounts.10Evidence of financial support may simply be indicative of kindness and compassion and is insufficient in itself to justify a finding that a spouse stands in the place of a parent where there is no evidence of any relationship akin to that of parent and child.11Such a status implies an intention on the part of the person alleged to stand in the place of a parent to fulfill the office and duty of a parent in both a practical and legal sense.12Courts look to a variety of objective factors for the purpose of determining intention. For example, they may consider the duration of the relationship, the age of the children, whether psychological parenting has

Page 374

taken place, day-to-day care of the children, involvement in vital activities such as the child’s education or discipline, how the child and the person in question acknowledge each other in their daily roles, as well as any financial contribution to the children.13In Chartier v Chartier, Bastarache J, speaking for the Supreme Court of Canada as a whole, observed:

39 Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan [v Carignan (1989), 64 DLR (4th) 119 (Man CA)], was dependent on the common-law approach discussed earlier. It was wrong. The Court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a "child of the marriage", the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires

Page 375

certain rights, such as the right to apply eventually for custody or access under s 161(1) of the Divorce Act.

40 Nevertheless, not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts and it must be established from the evidence that the adult acted so as to stand in the place of a parent to the child.

41 Huband J.A., in Carignan, [above,] expressed the concern that individuals may be reluctant to be generous towards children for fear that their generosity will give rise to parental obligations. I do not share those concerns. The nature of a parent relationship is complex and includes more than financial support. People do not enter into parental relationships with the view that they will be terminated.14A spouse’s subjective feelings15and motivation16are not relevant when his or her objective behaviour has manifested an intention to treat the child as a member of his or her family.17The judgment in Chartier v Chartier leaves open the question whether a person can or should be deemed to stand in the place of a parent in circumstances where both biological parents continue to play a significant role in their child’s life. This question was examined by Campbell J, of the Supreme Court of Nova Scotia, in Cook v Cook.18He concluded that Parliament endorsed the use of the words "in the place of" to indicate that parental status, with its concomitant child support obligations and the right to apply for custody of or access to the child, would arise only when a person has "substantially replaced the natural parent with respect to the various needs of the [child]." Campbell J acknowledged that the judgment of the Supreme Court of Canada "clearly implies that both the biological parent and the step-parent can be required to pay support in appropriate circumstances" and that there are circumstances where concurrent payments would be appropriate, as, for example, where the biological parent is paying inadequate support and the step-parent has provided "financial, emotional and physical support and guidance over a sufficient period of time in substitution for the natural parent."

Page 376

Both before and after the implementation of the Federal Child Support Guidelines on 1 May 1997, several courts have shared the opinion expressed by Campbell J in Cook v Cook, above, and have been disinclined to impose long-term child support obligations on cohabitants who assume parental...

To continue reading