P.M. v. S.L.D., (2008) 436 A.R. 370 (QB)

• Judge: Burrows, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 03, 2007
• Citations: (2008), 436 A.R. 370 (QB);2008 ABQB 109

P.M. v. S.L.D. (2008), 436 A.R. 370 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MR.036

In The Matter Of the Family Law Act, S.A. 2003, c. F-4.5

And In The Matter Of the child S.R.D., born [xxx]

P.M. (applicant) v. S.D. (respondent)

(FL04 00311; 2008 ABQB 109)

Indexed As: P.M. v. S.L.D.

Alberta Court of Queen's Bench

Judicial District of Grande Prairie

Burrows, J.

February 19, 2008.

Summary:

The applicant was a former roommate of the child's biological mother. He sought guardianship of the mother's year and a half old child, on the basis that he was in loco parentis to the child. The foster parents of the child were also applying for guardianship, and to adopt the child, who was presently still in their care. The foster parents and the mother asserted that the applicant had no legal standing to apply for guardianship under the Family Law Act and that the court had no jurisdiction to hear the matter.

The Alberta Court of Queen's Bench, in a decision reported at 414 A.R. 95, held that it had jurisdiction to hear the applicant's application for guardianship. The applicant could bring his application to prove that he was in loco parentis, and if found to be in loco parentis, whether or not he should be granted guardianship. The foster parents' guardianship and adoption applications should also be heard at the same time. A trial of these issues was directed, and should be held as soon as possible following the full disclosure of the Child Welfare files. Trial proceeded on the question of whether the applicant stood in loco parentis to the child.

The Alberta Court of Queen's Bench dismissed the application. The applicant was not in loco parentis to the child.

Editor's note: certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1812

Custody and access - General - Persons in loco parentis - The applicant was a former roommate of the child's biological mother - He sought guardianship of the mother's year and a half old child, on the basis that he was in loco parentis to the child - The Alberta Court of Queen's Bench dismissed the application - The applicant was not in loco parentis to the child as defined under s. 48 of the Family Law Act - Section 48 translated in loco parentis to "standing in the place of a parent" - Since they were never married, the question was whether the applicant and the mother were in "a relationship of interdependence of some permanence" (s. 48(1)(a)) - There was no such relationship between the applicant and the mother - They shared a bedroom for four months and a house for 14 months - They never shared one another's lives - They were never emotionally committed to each other - Their financial cooperation and living arrangements were never such as to justify the conclusion that they functioned as an economic and domestic unit - Finally, their relationship had very little, if any, permanence - Given these findings, the applicant was not a person standing in the place of a parent - He had no standing to apply for guardianship.

Guardian and Ward - Topic 363

Appointment and qualifications of guardian - Practice - Application for private guardianship - Time for or when available - [See Family Law - Topic 1812 ].

Cases Noticed:

Shtitz v. C.N.R., [1927] 1 W.W.R. 193 (Sask. C.A.), refd to. [para. 27].

W.D. v. G.P., [1984] 5 W.W.R. 289; 54 A.R. 161 (C.A.), refd to. [para. 35].

K.K.W. v. E.J.R., C.F.R. and C.T.W. (No. 1) (1989), 102 A.R. 106; 69 Alta. L.R.(2d) 95 (Q.B.), refd to. [para. 35].

Langdon v. York (1994), 161 A.R. 279; 25 Alta. L.R.(3d) 378 (Q.B.), refd to. [para. 35].

B.B. v. L.D., [2002] 8 W.W.R. 178; 313 A.R. 291 (Q.B.), refd to. [para. 35].

Statutes Noticed:

Family Law Act, S.A. 2003, c. F-4.5, sect. 48 [para. 28].

Authors and Works Noticed:

Alberta, Law Reform Institute, Final Report No. 93: Family Law Project The Conclusion, p. 29 [para. 31].

Counsel:

Gordon H. Andreiuk, for the applicant;

Carol MacKay, for the respondent;

Robert Pollick, for the child, S.R.D.;

Claus Thietke, Q.C., for the Director of Child Welfare.

This application was heard on December 3, 2007, by Burrows, J., of the Alberta Court of Queen's Bench, Judicial District of Grande Prairie, who delivered the following judgment on February 19, 2008.