Who is a 'Parent'? 'Standing in the Place of a Parent' and Section 5 of the Child Support Guidelines
| Author | Nicholas Bala |
| Pages | 71-118 |
Who
is a
"Parent"?
"Standing
in the
Place
of a
Parent"
and
Section
5 of the
Child Support Guidelines
Nicholas Bala
A. WHO IS A
"PARENT"
AND WHY
DOES
IT
MATTER?
This paper deals with
the
controversies concerning
the
obligations
of
those
who
"stand
in the
place
of a
parent"1
under
the
definition
in the
Divorce
Act,
or who
"demonstrate
a
settled intent
to
treat
a
child
as
their
own"2
under
the
Ontario
Family
Law
Act,
to pay an
amount
of
child sup-
port that
is
"appropriate" under section
5 of the
Child Support
Guidelines.3
Before
discussing
the
issues
that have
arisen
in the
interpretation
of
these provisions,
in
particular since
the
1999 Supreme Court
of
Canada
decision
in
Chartier
v.
Chartier,*
it is
useful
to
consider
the
broader social
and
legal context
in
which
the
present
divergence
of
judicial
opinions
is
occurring.
The
issues that
face
lawyers
and
judges
in
Ontario
in
deal-
ing
with cases involving
the
child support obligations
of
those
who are
not
biological
parents
—
most frequently cases about
the
child
support
*
Nicholas
Bala
is a
Professor
of Law at
Queen's
University
in
Kingston.
The
author
wishes
to
acknowledge research assistance
from
Queen's
law
students
Pamela
Tripp,
Katherine
Duvall
Antonacopoulos,
and
Karen
Hogan,
and the
financial sup-
port
of a
grant
from
the
Social Sciences
&
Humanities
Research Council.
1
Divorce
Act, R.S.C. 1985, (2nd Supp.),
c. 3, s.
2(2).
2
Family
Law
Act,
R.S.0.1990,
c.
Fvj.
3
S.O.R./1997-175,
s. 5
[Guidelines].
4
1*999]
J
S.C.R.
242
[Chartier].
71
72
NICHOLAS BALA
obligations
of
stepfathers
—
are an
aspect
of one of the
most
contentious
issues
in
family
law
today,
both
in
Canada
and
other countries:
the
ques-
tion
of
"who
is a
parent."
Changes
in
familial
relationships
and
develop-
ments
in
reproductive technology have resulted
in an
increasing number
of
children having more than
two
adults
who
play
a
"parental" role
in
their lives. While most "parents"
in
Canada have both
the
biological
and
social relationship
of
parent
in
regard
to a
child,
some parents
may
have
only
a
biological relationship
to the
child,
and
others will assume only
a
parent-like social relationship
to the
child.
The law
must
define
the
rights
and
obligations
of
adults
who
have
a
parental relationship
to the
child
and
deal with
the
complex issues that
can
arise when more than
two adults have a parental relationship with a child.
Almost
all of the
case
law
that will
be
discussed
in
this paper deals
with
the
support obligations
of
step-parents
and,
in
particular,
the ob-
ligations
of
stepfathers,
but
consideration
of
other contexts
in
which
courts
and
legislatures
are
dealing with issues that involve
the
definition
of
"parenthood"
can
help
to
illuminate
the
discussion
of the
obligations
of
step-parents. While
by far the
most frequently litigated
issues
regard-
ing
step-parents
in
Canada relate
to
their support obligations, there
are
also cases
in
which
a
step-parent
is
seeking custody
or
access.
It is now
accepted, both
as a
matter
of law and
social behaviour, that
in a
step-
family,
a
child
may
have "two fathers"
—
the
biological father
and the
stepfather
—
with
the
latter
fulfilling
some
or all of the
financial
and so-
cial roles
of a
"father"
in a
child's
life.
Resolution
of the
question
whether
a
stepfather
has
"stood
in the
place
of a
parent" depends,
at
least
in
part,
on a
consideration
of the
complex
and
contentious
question
of
what
is
the
role
of a
father
in a
contemporary Canadian
family.
The
issue
of
"paternity
fraud"
(or
"paternity
misattribution")
raises
the
question
of how the law
should treat
a man
who, because
of
what
he was
told
by the
mother, believed
and
acted
as
though
he was the
bio-
logical
parent,
but
later discovers that
he is
not. These
can be
described
as
cases involving "the wrong father." While
a
concern about correctly
establishing paternity
has
long been
a
theme
of
family
law,
it is
only
in
the
past
few
years, with
the
development
of
highly reliable, relatively
inexpensive DNA-based paternity testing, that paternity
fraud
cases
are
regularly
coming
before
the
courts. Paternity
fraud
is now a
significant,
controversial issue, with
different
judges
in
Canada taking very
differ-
ent
approaches.
In
the
past
two
decades, parenting
by
homosexual partners
has be-
come
increasingly common.
The use of
artificial
reproductive technol-
ogy
by
lesbians
has
resulted
in
many children being raised
in
families
Who is a
"Parent"?
73
where there
are
"two mothers
and no
father."
There
has
been contro-
versy
in a
number
of
countries about
the
extent
to
which
the
partner
who is not
biologically related
to the
child will assume rights
and ob-
ligations. There
are
similar issues
for
opposite-sex partners
who
have
children
who are
born through
the use of
reproductive technology
and
who are
biologically related
to
only
one
partner.
Grandparents have long been involved
in
providing child care
for
their
grandchildren,
especially when
the
children's
parents
are
deceased
or
incapable
of
caring
for
their children. While
these
custodial grandpar-
ents clearly play
a
parent-like role
in the
lives
of
children,
it may
also,
in
some ways,
be
understood that these children have
"no
parents." Many
grandparents, whether
or not
they have been primary caregivers,
are
seeking legal rights
of
access
to
their grandchildren,
and in
some cases
custody; there
are
also potential
issues
of
child support.
The
increasingly complex
and
diverse nature
of
parenting
is
also
re-
flected
in the
development
of
open adoption, which allows
a
child
to be in
the
care
of
adoptive parents
—
who are the
child's legal parents
—
while
having some contact with
the
biological parents. These children
may be
said
to
have "two
fathers
and two
mothers."
While
a
full
discussion
of the
manifold
concept
of
"parent"
is be-
yond
the
scope
of
this paper,
as a
general observation,
a
person
may
have
some
parental legal rights
and
obligations,
but not
others.
A
person
may
be a
"parent"
for
some legal purposes
but not
others,
or may
have
that
status
at one
time
but may
later lose
it.
This development
has
been
referred
to by
American commentators
as
"asymmetric
parenthood."5
This
paper does
not
deal with
all of the
broad questions related
to the
concept
of
parenthood,
but
rather
focuses
on the
child support obligations
of
those
who
have
had a
parent-like role
in
regard
to a
child
but are not
biological parents,
and who
will
be
referred
to as
"social-parents"
in
this
paper.6
In
particular,
the
focus
is on the law as
applied
in
Ontario, though
this
will require some consideration
of the law in
other provinces,
and
the
paper includes
a
brief comparative discussion
to set
developments
See
Katharine Baker, "Asymmetric Parenthood"
in
Robin
F.
Wilson,
ed.,
Reconceiv-
ing the
Family: Critical Reflections
on the
American
Law
Institute's
Principles
of
the Law of
Family
Dissolution
(Cambridge,
UK:
Cambridge University Press,
2006)
[Reconceiving
the
Family].
In
this
paper,
the
term
"social-parent"
will
be
used
to
describe
a
person
who has
a
"parent-like"
relationship
to a
child
without
being
a
biological
parent;
some
authors
use
other terms, such
as
"psychological
parent."
The
term
"de
facto"
parent
is
commonly
used
in the
United States,
though
it
sometimes
has a
meaning that
is
defined
by
statute.
5
6
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