J. Persons Standing in Place of Parents
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 85-114 |
Page 85
See note 342
Pursuant to section 2(2) of the Divorce Act, the phrase "child of the marriage" is not confined to the common offspring of the spouses. The definition of "child of the marriage" is satisfied where both or either of the spouses or former spouses stand in the place of parents. A spouse stands in the place of a parent when that spouse manifests an intention of placing himself or herself in a situation ordinarily occupied by the biological parent. 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.343In Peters v. Graham,344Boudreau 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 toward the support of a child is a material consideration, it is not decisive in determining whether the contributor stands in the place of a parent. Evidence 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.345Such 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.346Courts may look to a number 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 psy-
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chological parenting has 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.347In Chartier v. Chartier, Bastarache J., speaking for the Supreme Court of Canada as a whole, observed:
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, above, 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 certain rights, such as the right to apply eventually for custody or access under s. 16(1) of the Divorce Act.
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.
Huband J.A., in Carignan, supra, expressed the concern that individuals may be reluctant to be generous toward children for fear that their generosity will give rise to parental obligations. I do not share those concerns. The nature of a parental relationship is complex and includes more than financial support. People do not enter into parental relationships with the view that they will be terminated.348Professor Carol Rogerson in her article, "The Child Support Obligations of Step-Parents"349 provides a list of additional factors that can be considered by a court, including
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minimal involvement by the non-custodial biological parent, deliberate behaviour to exclude the non-custodial biological parent, reference to the stepfather as "Dad" and changes in a child’s surname, a good relationship between the child and the step-parent, joint participation in family activities, the birth of one or more children to the spouses during their relationship, adoption proceedings or discussions, and the exercise of access after separation. She also identifies several factors that tend to demonstrate an individual has not stood in the place of a parent, including a poor relationship between the child and step-parent prior to separation, the children are older when the spousal relationship begins, an involved non-custodial biological parent, and the fact that the potential payor is a stepmother rather than a stepfather.350The above criteria are to be viewed as a whole and differences in the treatment of biological and non-biological children may be insufficient to negate a finding that a spouse stands in the place of a parent to the non-biological child within the meaning of section 2(1) of the Divorce Act.351The relevant factors listed in Chartier v. Chartier, discussed above, as indicative of a parental relationship do not represent an exclusive list, nor is it necessary to establish that all the listed factors are present in a particular case. The fact that a husband has not been a good step-parent or that he may have been an excessive disciplinarian does not preclude a finding that he stood in the place of a parent to his wife’s children, where he performed most of the functions normally performed by a parent. Furthermore, absence for extended periods from the family home for employment related purposes does not preclude such a finding.352The child’s perceptions of the relationship may be relevant but are not determinative. Children often resent step-parents but that does not negate the existence of a parent/child relationship that has developed. Animosity between the child and a step-parent does not preclude a finding that the latter stood in the place of a parent.353A husband’s sponsorship of his wife and her children from previous relationships may be indicative of an intention to stand in the place of a parent to those children, but such sponsorship should be viewed in the context of the attendant circumstances for the purpose of determining the husband’s obligation to support the children in light of section 5 of the Federal Child Support Guidelines.354The respondent may be entitled to a summary judgment dismissing a claim for child support where the applicant fails to set out an evidentiary basis that shows a genuine issue for trial as to whether the respondent had stood in the place of a parent to the child.355The 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
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by Campbell J. of the Supreme Court of Nova Scotia in Cook v. Cook.356He 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 biological 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." In explaining the underlying rationale for his conclusions, Campbell J. observed:
[para 26] In marriages or relationships involving children of a previous relationship, the adults and children will necessarily show signs of family life...
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