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M.(L.M.) v. B.(W.G.), 2003mbca17
Docket(s): AF01-30-05107
Source: http://www.canlii.org/mb/cas/mbca/2003/2003mbca17.html

 

IN THE COURT OF APPEAL OF MANITOBA

Coram: Huband, Steel and Freedman JJ.A.

B E T W E E N:

LEANDRE MICHELLE MONKMAN

)

      D. J. Overall

)

      for the Appellant

                              (Petitioner) Respondent

)

)

      R. O. O. West

)

      for the Respondent

- and -

)

)

      Appeal heard:

)

      October 4, 2002

WALTER GEORGE BEAULIEU

)

)

      Judgment delivered:

                               (Respondent) Appellant

)

      February 3, 2003

STEEL J.A. (giving the first judgment at the invitation of Huband J.A.)

1                      The nature of a stepparent's obligation to support a stepchild pursuant to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), was settled by the Supreme Court of Canada in the case of Chartier v. Chartier, [1999] 1 S.C.R. 242.

2                      The case at bar raises a different but related issue. It deals with the nature of that obligation when it arises pursuant to The Family Maintenance Act, R.S.M. 1987, c. F20, in a situation of a common-law relationship rather than a divorce under the Divorce Act.


FACTS

3                      These parties began their common-law relationship in August 1988 and ended it in January 1992. The mother has five children, one of whom is the child of the parties. Kristen, who is the focus of these proceedings, had a different biological father. She was about a month old when the relationship began and three and a half years old when it ended. The motions court judge found the respondent to be in loco parentis to Kristen. This appeal only concerns this child and the child support order that flowed from that determination.

4                      It is crucial to note that, although there had been an order for a trial of the issue as to whether Mr. Beaulieu stood in loco parentis, the matter proceeded by way of affidavit on agreed facts. These facts included the admissions by the respondent that from about the age of 2, Kristen called him "Dad," that he shared in all the parenting responsibilities regarding all the children, and that, other than the day of her birth, Kristen has not seen or interacted with her biological father in any way.

5                      The motions court judge found that the phrase in loco parentis, as contained in The Family Maintenance Act, means the same thing and has the same consequences as the phrase "stands in the place of a parent" within the Divorce Act. She held, following the decision in Chartier, that such status, once established, cannot be unilaterally terminated. She also held that given the evidence that the biological father was presently incarcerated, the appropriate quantum of child support should be determined having regard only to the respondent's income.

6                      Mr. Beaulieu appealed, arguing, among other things, that the motions court judge erred in finding that he stands in loco parentis to Kristen or that she erred in failing to consider whether he had formed the necessary intention to enter into any in loco parentis relationship.

7                      The motions court judge stated in her reasons (at para. 8):

  • In the case before me the facts which are provided are not in contention. There is no question that during the period of the cohabitation the respondent accepted K. as his stepchild. He provided for her, cared for her, nurtured her and presented himself to her, to the family and the community as a father figure, the only one that she has ever known.
  • Intention must be inferred from words or conduct. Given the fact that the parties agreed to proceed on affidavit evidence, no cross-examination was conducted on those affidavits, and Mr. Beaulieu agreed he had shared in all parenting responsibilities, the motions court judge was entitled to come to the conclusion she did. I would dismiss this ground of appeal.

8                      Two other grounds of appeal were also submitted. First, it was argued that the judge erred in her interpretation of the meaning of in loco parentis within the context of The Family Maintenance Act. Second, if the respondent was in a in loco parentis situation, then it is submitted that it was only secondary to that of the child's biological father. Consequently, the quantum of support should have been determined by having regard to the annual income of the biological father of the child and not the respondent's annual income.

9                      For the reasons that follow, I find that the motions court judge was correct in her decision, and I would dismiss the appeal with respect to the two above grounds of appeal as well.

LAW

10                  The phrase "stands in the place of a parent" is found in the definition of "child of the marriage" in the Divorce Act and reads as follows:

  • 2.    (1)     In this Act, ....
  • (2)     For the purposes of the definition "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.
  • . . . . .

11                  In The Family Maintenance Act, there is no mention of the phrase "stands in the place of a parent." Instead, the legislation makes reference to the concept of in loco parentis in both the definition section and in s. 36(4):

"child" includes a child to whom a person stands in loco parentis;

  • Person standing in loco parentis
  • 36(4)     A person who stands in loco parentis to a child has the obligation to provide reasonably for the support, maintenance and education of that child, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.

12                  In this court's decision in Chartier v. Chartier (1997), 118 Man.R. (2d) 152, the court commented (at para. 30):

  • Whether the Manitoba legislation imposes a different duty than the [Divorce Act], as interpreted by the Carignan [(1989), 61 Man.R. (2d) 66 (C.A.)] case, is yet to be determined by this court.

13                  It is that issue exactly that must now be determined by this court in the case at bar.

14                  Counsel for the respondent argued that the phrases had different meanings; first, because one is in Latin and the other is in English, and second, because the wording of s. 36(4) in The Family Maintenance Act contains a limitation upon the support which may be ordered.

15                  In the cases of Carignan v. Carignan (1989), 61 Man.R. (2d) 66, and Chartier, this court considered the meaning of the phrase in loco parentis in the context of the Divorce Act and adopted the common law definition of that phrase, which included the concept that the relationship could be unilaterally terminated. This court was wrong in that conclusion.

16                  In the Supreme Court of Canada decision of Chartier, Justice Bastarache discussed the meaning of the phrases in loco parentis and "in the place of a parent" and concluded that the two phrases have the same meaning and that once the relationship has been established, it cannot be unilaterally terminated. It is interesting to note that the parties themselves agreed in the Chartier case that their rights and obligations under The Family Maintenance Act and the Divorce Act were identical for the purposes of that action.

17                  Thus, I place no weight on the fact that the Divorce Act uses the English and The Family Maintenance Act uses the Latin.[1] Both phrases mean the same thing.

18                  I am strengthened in this conclusion by the French translation of in loco parentis in The Family Maintenance Act. This is referred to in the case of Tuesday v. Daniels (2002), 165 Man.R. (2d) 216, 2002 MBQB 199, where Duval J. notes (at para. 33):

The French-language version of s. 1 of the Family Maintenance Act defines "child" as including a child to whom a person stands in the place of a parent. This definition is consistent with the conclusion of the Supreme Court of Canada in Chartier in respect of the meaning of "in loco parentis" under the Divorce Act.

19                  It should be noted that the Manitoba Interpretation Act, S.M. 2000, c. 26 - Cap. I80, reads in s. 7 as follows:

  • Bilingual versions
  • 7           The English and French versions of Acts and regulations are equally authoritative, in accordance with section 23 of the Manitoba Act, 1870.

20                  As well, in this court's decision in Carignan, this court agreed that the phrases in loco parentis and "in the place of a parent" mean the same thing. On that point, Huband J.A. stated (at para. 24):

  • A major revision of the statutory law took place which resulted in a new Divorce Act, S.C. 1986, c. 4. The Latin is no longer used, and the English translation now uses the phrase "in the place of a parent". It would seem clear, however, that those words were intended to have the same meaning as one would attribute to "in loco parentis".

21                  Thus, if this court is to reach a conclusion different than the Supreme Court in Chartier on the question of unilateral termination, that conclusion must arise from a difference in the use of the phrases or in the purposes of the two statutes.

22                  It is now accepted that statutory interpretation must be attempted within a purposive and contextual approach. Statutory interpretation cannot be limited to the words used by themselves. Instead, the words of an Act are read in their entire context and in their grammatical and ordinary sense harmoniously within the scheme of the Act, the object of the Act and the intention of Parliament. See R. v. Loscerbo (A.) (1994), 92 Man.R. (2d) 263 at para. 18 (C.A.), per Scott C.J.M. Most recently, the Supreme Court of Canada had occasion to confirm this one overarching approach to statutory interpretation in Bell ExpressVu Ltd. Partnership v. Rex, [2002] 5 W.W.R. 1, 2002 SCC 42, at para. 26, per Iacobucci J.

23                  Within that contextual approach, the history of the doctrine does have a place. The Supreme Court acknowledges the historical background to the phrase, but also points out two important qualifications to the use of history within statutory interpretation. First, history in this case does not necessarily point us uniformly in one direction. For example, in the article by Keith B. Farquhar, "Termination of the In Loco Parentis Obligation of Child Support" (1990) 9 Can. J. Fam. L. 99, the author takes issue with the conclusion reached by Huband J.A. in Carignan (at pp. 104-5):

  • Whatever the logic of unilateral withdrawal may be in the context of equitable rules concerning portions and advancements, it is suggested here that the position need not be persuasive where the issue is the support of a young child who is in need. The equitable rules in question were not designed primarily with support of needy young people in mind, but were framed mainly to assist courts in assessing the intention of an often wealthy testator or transferor who had transferred property to a child, often an adult, who might also be well-to-do. To say that unilateral withdrawal is, or must be, part of the general body of law governing portions, advancement and in loco parentis status, does not, it is submitted, automatically make the case for other areas of the law.

24                  Second, one must be careful in statutory interpretation when adopting historical interpretations in modern situations that have changed dramatically. A court instinctively looks to the past when faced with an ambiguity in the law, but reference to the past cannot always provide a complete answer to the problem at hand. It is sometimes necessary to take a broader approach.

25                  The doctrine of in loco parentis was developed in diverse contexts, including trust law, tort law, wills and gifts. In particular, the Supreme Court refers (at para. 18) to an article by Alison Diduck, "Carignan v. Carignan: When is a Father not a Father? Another Historical Perspective" (1990) 19 Man. L.J. 580, and quotes her conclusion at p. 601, where she states:

  • The in loco parentis doctrine is a creature of 19th century patriarchy. It evolved during a time when it was a morally offensive notion for a man to be held responsible for another man's child. As Mendes da Costa U.F.J. stated in a 1987 decision, it has "its roots deep in history" and "carries with it connotations of times past" [Re Spring and Spring (1987), 61 O.R. (2d) 743 at 748 (U.F.C.)].

26                  Therefore, in Chartier, when examining the concept within the context of the entire statute, the Supreme Court stated (at para. 20):

  • ... [T]he common law meaning of in loco parentis is not helpful in determining the scope of the words "in the place of a parent" in the Divorce Act.

27                  And instead concluded (at para. 19):

  • ... [T]he policies and values reflected in the Divorce Act must relate to contemporary Canadian society and that the general principles of statutory interpretation support a modern understanding of the words "stands in the place of a parent".

28                  The same can be said of The Family Maintenance Act. The purposes of The Family Maintenance Act are stated specifically in s. 2(1):

  • Best interests test applies
  • 2(1)      In all proceedings under this Act the best interests of the child shall be the paramount consideration of the court.

29                  That section should be read in conjunction with s. 6 of The Interpretation Act, which states:

  • Rule of liberal interpretation
  • 6           Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation that best ensures the attainment of its objects.

30                  Unilateral severance focuses on the interests of the adult who assumed the in loco parentis relationship. A court should instead give the provisions an interpretation which protects the interests of the dependent child. The interpretation that best serves children is one that recognizes that when adults intentionally take on the role and responsibilities of a parent, then children can depend on the continuation of that role.

31                  An interpretation that adopts unilateral severance disregards any notions of bonding and attachment between a child and a psychological parent. Family law affecting children has moved from preserving parental rights over children to decisions identifying the best interests of children and promoting children's welfare. Those, I believe, are the objectives of the Acts, and in loco parentis should be interpreted harmoniously with those objectives.

32                  This court commented in Carignan and Chartier that unilateral termination is also consistent with the best interests of the child since, otherwise, individuals might be reluctant to enter into these types of relationships. In this court's decision in Chartier, the observation was made that "[m]odern marriages (and other forms of cohabitation) are often fragile and time-limited relationships" (at para. 15). The court wondered how many obligations divorced or separated parties must carry with them as they travel from relationship to relationship (at para. 16). Imposing legal obligations in these circumstances might prevent the formation of new family groups, it was thought.

33                  First, I note that one of the obligations that society has agreed that parties should carry with them is the obligation to children. As the motions court judge said, "While modern unions may be transitory, children are not" (at para. 12).

34                  Moreover, several academics have questioned this proposition. Farquhar, in his article, responds to this policy argument as follows (at p. 126):

  • It is suggested with respect that this theorem is questionable. In the first place, even granting the debatable principle that human action is governed only by enlightened self-interest, the motivation for forming family relationships is almost always complex and not merely a matter of the presence or absence of economic inducements.

35                  Alison Harvison Young, "This Child Does Have 2 (Or More) Fathers ...: Step-parents and Support Obligations" (2000) 45 McGill L.J. 107, when discussing the question of unilateral termination and whether it discourages stepparents from becoming active players in the lives of their stepchildren, concludes (at p. 128):

  • There seems to be very little in the way of empirical evidence, in either the Canadian or the U.S. context, to support such assertions. Will a concern about possible financial liability for support in fact affect conduct during a happy phase of a relationship when a family unit is being formed? Will this really, for example, deter a stepfather from taking a child to soccer practice? If so, it may well be better, as some have suggested, to have this reticence flushed out early in the relationship, thereby preventing the creation of a doomed family unit. Bastarache J. himself expresses this view in Chartier.
  • As a matter of fact, Young points out that in terms of social policy, unilateral termination creates additional problems (at p. 129):
  • While the question of whether imposing support obligations on step-parents will discourage them from establishing strong relationships with their stepchildren during the marriage remains an open one, Chartier will eliminate a related problem created by the pre-Chartier line of cases led by Carignan: the incentive for step-parents to discontinue contact after divorce or separation in order to avoid support obligations.

36                  There is one significant difference between the Divorce Act and The Family Maintenance Act that should be addressed in the context of statutory interpretation. The Family Maintenance Act is applicable in situations other than marriage, while the Divorce Act is limited to married couples. Does the fact that the parties cohabit in a non-marital relationship make a difference in the obligation to support children?

37                  If the purpose of The Family Maintenance Act is to enhance the best interests of children, then it should be recognized that more and more children are being raised in common-law unions as opposed to marriages. Statistics Canada's third release of data from the 2001 census indicates that the number of common-law couples accounted for 13.8 per cent of all families in 2001, more than double the proportion in the 1981 census. In Quebec, where the prevalence of common-law couples is highest of any province, common-law couples constituted 30 per cent of all couples.

38                  The trend in family law has been to extend legal obligations to children regardless of the legal status of the relationship of the adults. For example, there is no distinction between children born inside or outside marriage in Manitoba (see s. 17 of The Family Maintenance Act). Financial support was extended to common-law partners under The Family Maintenance Act in 1983[2], and the Act now treats spouses and common-law partners the same. The Family Maintenance Act defines common-law as:

  • "common-law partner" of a person means a person who, not being married to the other person, cohabited with him or her in a conjugal relationship
  • (a)     for a period of at least three years, or
  • (b)     for a period of at least one year and they are together the parents of a child;
  • "common-law relationship" means the relationship between two persons who are cohabiting as common-law partners of each other.

39                  Section 14(1) of The Family Maintenance Act makes clear that "[w]here common-law partners have cohabited for a period of at least one year and they are together the parents of a child, this Act applies with such modifications as the circumstances require."

40                  As well, s. 36(3) of The Family Maintenance Act already imposes an obligation upon cohabiting couples to support each other's children during cohabitation.[3] That obligation is identical in every respect to the obligation of a spouse to support the child of the other spouse while the child is in the custody of the two spouses. This obligation is imposed on a person cohabiting in a conjugal relationship, a wider category than that of a "common-law" relationship. However, the point is the same. A marital relationship between the adults is not necessary to create a legal obligation between the adult and child.

41                  Farquhar, in his article, states (at p. 126):

A second point that may be made about the reasoning in Carignan is that its concentration on the right of unilateral termination translates, logically, into the proposition that an established alternative parent has no duty to support a child but merely an option to do so. If this were the true intention of Parliament and the various legislatures, there would have been very little point to legislating on the issue at all.

42                  I agree with Farquhar. What would be the point of s. 36(4) of The Family Maintenance Act imposing a legal obligation on certain adults who have assumed the parental role after the breakdown of a relationship if they could terminate it at will? If one can unilaterally terminate an in loco parentis relationship, why define such a relationship as giving rise to legal obligations under the legislation?

43                  Using the best interests of the child as the primary objective, I find that such objective is best supported by imposing obligations in certain conjugal relationships. I adopt the comments of Moen J. in the case of B. (B.) v. D. (L.), [2002] 8 W.W.R. 178, 2002 ABQB 429, where he states (at para. 23):

  • Is the situation so different when the man and woman live together as a family and the child is treated as a child by the non-biological parent. Does a legal marriage make a difference to the child? I think not.

44                  I also disagree with the interpretation given s. 36 of The Family Maintenance Act by my brother Huband. Section 36 states as follows:

  • Obligation to support children
  • 36(1)      Each parent of a child has the obligation, subject to The Child and Family Services Act [S.M. 1985-86, c. 8 - Cap. C80], to provide reasonably for the child's support, maintenance and education, whether or not the child is in that parent's custody.
  • Child of spouse
  • 36(2)      A spouse has the obligation to provide reasonably for the support, maintenance and education of any child of the other spouse, while the child is in the custody of the spouses, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.
  • Child of cohabiting person
  • 36(3)      A person who is cohabiting in a conjugal relationship with, but is not married to, another person has the obligation during cohabitation to provide reasonably for the support, maintenance and education of any child of that other person, while the child is in the custody of the persons or either of them, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.
  • Person standing in loco parentis
  • 36(4)      A person who stands in loco parentis to a child has the obligation to provide reasonably for the support, maintenance and education of that child, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.

45                  In my opinion, s. 36 does not treat stepparents in a marital situation differently from parents in a common-law situation. Subsections (1), (2) and (3) of s. 36 all place obligations on adults towards children during the existence of a relationship. When individuals who are already identified as parents under The Family Maintenance Act[4] separate, the Act imposes an obligation upon them to support children. When adults separate in a
relationship as identified in s. 36(2) or s. 36(3), there must be a judicial determination as to whether they can be considered to stand in loco parentis to the child who lived with them in that relationship. It is s. 36(4) of The Family Maintenance Act that is activated upon termination of a relationship, and it would apply both to adults in a marital relationship under s. 36(2) and adults in a conjugal relationship under s. 36(3).

46                  Given all of these reasons, I conclude that in situations dealing with children, where the best interests test prevails, there should be no distinction in the application of the in loco parentis test between children living in a relationship where the parties are married and children living in a relationship where the parties are not married. This general conclusion does not preclude the possibility that in a particular case, the evidence may be that the parties did not marry specifically because of a hesitancy on the part of a non-parent in assuming the role of a parent towards a child. Such evidence might tend to negate the existence of a deliberate intention to enter into a parental role and would be relevant to the factual determination of whether an alternative parenting relationship had been established in that particular case.

47                  This interpretation would have the added benefit of uniformity between the Divorce Act and provincial legislation. Uniformity between federal and provincial legislation in matters dealing with families and children should be encouraged whenever possible.

48                  In summary, the crucial element in all of this should be the relationship between the child and the adult and not the relationship between the adults. Perhaps Mendes da Costa U.F.C.J. said it best back in 1984 in the case of McCarthy v. McCarthy (1984), 44 R.F.L. (2d) 92 (Ont. U.F.C.), when he held that once established, a relationship of in loco parentis could not be changed since (at p. 98):

  • ... a husband, against whom a hotly contested order for child support has been made, could thereafter, turn his back on the child and then require the court, as a matter of law, to declare that the order has spent its force, on the basis that he has withdrawn from the relationship of in loco parentis. It seems unlikely that Parliament intended to place the financial well-being of a child in so vulnerable a position or to render so potentially ineffectual an order of the court.
  • DECISION

49                  The best interests of the child is the paramount consideration in both The Family Maintenance Act and the Divorce Act. Consequently, a review of the objects and purposes of The Family Maintenance Act leads me to the conclusion that the phrase in loco parentis, as used in s. 36(4), has the same meaning and the same consequences as the phrase "stands in the place of a parent," as used in s. 2(2) of the Divorce Act.

50                  Although one must carefully examine the evidence in order to determine whether on an objective basis it could be said that an in loco parentis relationship was created, once created, that relationship cannot be unilaterally terminated.

51                  The respondent also alleged that if he was in an in loco parentis situation, the motions court judge erred when she used his income as the basis of the quantum of child support pursuant to the Manitoba Child Support Guidelines Regulation, Man. Reg. 58/98 (the Manitoba Guidelines). He argued that it was the income of the biological father that should have been used.

52                  Section 36(4) is clear in that it makes the support obligation of the respondent secondary to that of the child's biological parent. On the other hand, s. 37(2) of The Family Maintenance Act and s. 5 of the Manitoba Guidelines give the court considerably more discretion. They state:

  • Child support guidelines apply
  • 37(2)      A court making a child support order shall do so in accordance with the child support guidelines.
  • Person in place of a parent
  • 5           Where a person against whom a child support order is sought is not the child's parent but has been found by the court to have an obligation to pay for the support of the child either under the Divorce Act (Canada) as a person who stands in the place of a parent or under subsections 36(2), (3) or (4) of The Family Maintenance Act, the amount of a child support order is, in respect of that person, such amount as the court considers appropriate, having regard to these guidelines and the child's parents' legal duty to support the child.

53                  The Supreme Court in Chartier commented on the concern that support might be collected from both the biological parent and the stepparent. Bastarache J. stated (at para. 42):

  • The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. .... The obligations of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations towards the child, whether they are biological parents or step-parents; it should not affect the child. If a parent seeks contribution from another parent, he or she must, in the meantime, pay support for the child regardless of the obligations of the other parent.

54                  Diverse and vexing questions arise with respect to the issue of quantification, apportionment and the interrelationship of s. 36(4) of The Family Maintenance Act and s. 5 of the Manitoba Guidelines. I do not propose to address any of them in this case as it is not necessary within the factual matrix presented to us.

55                  In the case at bar, the biological father was in jail at the material time. He had no tangible income and, given his track record, was unlikely to have income in the future. If the respondent wished to challenge that evidence, it was open to him to add the biological father as a party to the proceedings to determine his actual income and his potential for gainful employment. Alternatively, he could have, at a minimum, cross-examined the mother on her evidence in the affidavit. The respondent did neither, and therefore, the support order was calculated based on his income in accordance with the Manitoba Guidelines.

56                  A court should not reduce the amount of support that a child is potentially entitled to receive from an alternative parent on the basis that the biological non-custodial parent has a child support obligation if there is actually no prospect of support from that source. In the circumstances of this case, the award of support was proper. I leave for another day the question of the proper apportionment, if any, of child support between the biological parent and a spouse who stands in the place of the parent and how a secondary support obligation should be interpreted in a situation where the biological father does have an ability to pay.

57                  I note also that the biological parent in this case was not joined as a party nor, as far as I can ascertain, was he given notice of these proceedings. A court's obligation to ensure procedural fairness requires a biological non-custodial parent to be given notice of proceedings involving a stepparent if there is any possibility that the biological parent will be called upon to provide child support. However, I make no comment on who has the responsibility of bringing that parent before the court. That point was not argued in front of us.

  • EVIDENCE ADDUCED ON AN IN LOCO PARENTIS
  • APPLICATION

58                  As I mentioned earlier, this motion proceeded on agreed facts. At the appeal hearing, counsel for Mr. Beaulieu agreed that, although not filed, the matter had proceeded on an agreed statement of facts which was reproduced in Mr. Beaulieu's factum. Those uncontradicted facts standing by themselves led the motions court judge to a conclusion that Mr. Beaulieu stood in loco parentis to Kristen during his relationship with her mother. The appeal was focussed on the issue of whether the in loco parentis relationship could be interpreted differently under The Family Maintenance Act than the Divorce Act. Consequently, the following remarks are obiter only. However, given the unsatisfactory nature of the evidence on many of these applications, I think it useful to make a few comments on the sufficiency of evidence required to establish that an individual stands in the place of a parent.

59                  To hold that a person stands in loco parentis and that such a relationship cannot be unilaterally terminated is to fix upon that person potentially significant financial obligations. It is not a relationship that is entered into casually. Nor should being pleasant or financially generous without the intention to assume parental responsibilities be sufficient. The nature of a conjugal relationship between adults requires a pleasant interaction between the adults and the child. See Cook v. Cook (2000), 3 R.F.L. (5th) 373 at para. 26 (N.S.S.C.), per Campbell J.:

  • In finding parental status, a court must take care not to penalize a step-parent for behaving kindly or offering emotional, physical and financial assistance to the natural parent who would otherwise be raising the children alone or with some assistance from the non-custodial natural parent.

60                  Becoming a person in loco parentis requires assuming a true parental role, and this is determined by examining the conduct and behaviour of all of the parties concerned. The facts of each individual case and the entire context of the relationship must be examined in a functional and objective manner in order to determine whether a parental role has been assumed.

61                  With respect to the necessity of intention, Bastarache J., in Chartier, quotes, with approval, the decision of Laraque v. Allooloo (1992), 44 R.F.L. (3d) 10 at para. 33 (N.W.T.S.C.), with respect to the following (at para. 23):

  • At the risk of being repetitious, it is well settled law that it takes a properly informed and deliberate intention to assume parental obligations for support of a child, on an ongoing basis, to bring the in loco parentis status in law into being.

62                  In Chartier, Bastarache J. listed some factors which he considered relevant to the determination of whether the relationship has been established. He listed them as follows (at para. 39):

  • (1)      whether the child participates in the extended family in the same way as would a biological child;
  • (2)      whether the person provides financially for the child (depending on ability to pay);
  • (3)      whether the person disciplines the child as a parent;
  • (4)      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;
  • (5)      the nature or existence of the child's relationship with the absent biological parent; and
  • (6)      the opinion of the child regarding the relationship with the stepparent.

63                  The factors mentioned above do not represent an exclusive list nor is it necessary to establish all the listed factors in any one particular case. The facts in Chartier themselves give an indication of the type of factors that reflect the necessary level of commitment. In Chartier, the stepfather considered adopting the child; he participated in an amendment of the birth certificate, indicating that he was the father; and he agreed to a consent judgment acknowledging that he was the father.

64                  In another example, in the case of Tuesday, a common-law situation under The Family Maintenance Act, the court considered detailed evidence of parenting over the course of the relationship, including such elements as postcards sent to the child by the stepparent which were signed as "Dad" and Father's Day cards sent by the child.

65                  Again, in the decision of Hall J. in M. (R.) v. M. (P.) (2000), 8 R.F.L. (5th) 320 (Nfld. S.C. (T.D.)), the court considered the factors set out by Bastarache J. in Chartier. The wife had three children from three prior relationships. During the time that the parties lived together, no other person acted as father to the children. The wife testified that the respondent provided food and housing for them, as well as gifts and money on occasion. He disciplined the children, and they viewed him as their father. When the family was transferred from place to place, he claimed transfer costs for each child. The parties discussed adoption, but it never occurred. The court held that the children were children of the marriage.

66                  On the other hand, in the case of A. (V.) v. F. (S.) (2000), 197 D.L.R. (4th) 500, the Quebec Court of Appeal set aside an interim order granting child support for a stepchild in a two-year marital relationship. The court held that the evidence required to establish that a person stands in the place of a parent must be clear, unequivocal and unambiguous. The evidence before the motions judge did not meet that standard. The husband's behaviour was as consistent with an intent to please the wife and to lay the foundation for a solid family life as it was with a desire to stand in the place of the boy's father. The evidence did not establish that the husband wished to consider his new wife's son as his own child and to assume full parental responsibility.

67                  What is clear is that evidence of conduct after the break-up of the relationship is normally not relevant. The period of time being examined is the time the family functioned as a unit. As Bastarache J. observed in Chartier (at para. 37):

  • The breakdown of the parent/child relationship after separation is not a relevant factor in determining whether or not a person stands in the place of a parent for the purposes of the Divorce Act.

68                  As well, in a common-law situation such as the one at bar, the court should consider that pursuant to s. 36(3) of The Family Maintenance Act, there is an obligation upon a cohabitee to provide financially for the child during the period of cohabitation. Thus, the court must weigh the element of financial contribution critically, given that there exists statutory obligation, and not necessarily as evidence of an intention to create a parental relationship.

69                  I do not quarrel with Huband J.A.'s comment that the obligation under s. 36(4) might fall upon a broader category of persons than former stepparents, although that is not the case before us. The situations where this will occur are likely to be few and far between given that before such an obligation can be imposed, a court would have to decide that the adult had, in fact, taken on the role of a parent. In making that decision, a court would examine a number of factors, including intention, on an objective and functional basis. Acts of generosity will not, in and of themselves, result in a legal determination that an adult has taken on the role of a parent, and generous adults, such as grandparents, uncles, aunts and family friends, will not be burdened under s. 36(4) simply because of their generosity.

CONCLUSION

70                  Given the growing numbers of blended families, it is not unusual now to have multiple parenting figures in a child's life, all of whom can add to the child's best interests. The law should seek to endorse broad visions of family that encourage the continuation of nurturing and support of children within those relationships. The Chartier case was a positive step in this direction.

71                  While The Family Maintenance Act applies to a wider variety of relationships than the Divorce Act, the primary interests underlying both statutes is to provide for children's needs and act in their best interests.

72                  An analysis of the common law doctrine of in loco parentis shows that it developed in a context far removed from the objects and purposes of modern family law. If one interprets the phrase in loco parentis as used in s. 36(4) within a contextual approach, one must conclude that the interests of children outweigh the importance of individual autonomy in this instance.

73                  The appeal is dismissed with costs.

  
  • ______________________________ J.A.
  • I agree: ______________________________ J.A.
     

HUBAND J.A. (dissenting)

74                  This court is called upon to interpret the meaning of the Latin phrase in loco parentis as it appears in The Family Maintenance Act, R.S.M. 1987, c. F20. It would be easy to conclude, as the learned motions judge did, that the phrase should be given the same meaning as the Supreme Court of Canada gave to the English translation of that phrase which appears in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). But, it is well known that the same word or phrase can have a different meaning, depending upon the context of the statute in which the word or phrase appears.

75                  The issue in this case is whether the status of being in loco parentis to a child is one from which the individual is free to exit or whether the individual is locked into that status and, consequently, locked into the obligation to provide financial support until the child attains adulthood.

76                  In Carignan v. Carignan (1989), 61 Man.R. (2d) 66, this court considered the meaning of the relationship in loco parentis in the context of the Divorce Act. It was noted that the concept is not new. In every other context in which it arises, the relationship is one which the adult party voluntarily enters into and is free to voluntarily exit. It is not a permanent relationship. Writing for the court at that time, I surveyed the common law meaning of in loco parentis and concluded in these words (at para. 10):

  • I can find no hint in the cases in Chancery Court that, once having formed the relationship, the substitute parent is under any legal obligation to continue it.

77                  It was noted that the common law concept of the relationship has been incorporated into Canadian statutory laws - specifically, the various provincial enactments dealing with fatal accidents (at para. 13):

  • It would appear that the decisions of the English authorities emerging out of equity cases in the Chancery Court were seen as providing our understanding of the relationship under Canadian statutory law with respect to cases in the law of tort.

78                  This court applied that same understanding of the relationship relative to the Divorce Act. In that Act, the definition of "child" includes any person of whom either of the husband or the wife is a parent and to whom the other of them stands in loco parentis.

79                  This court was wrong in its conclusion.

80                  In the later case of Chartier v. Chartier, [1999] 1 S.C.R. 242, the Supreme Court of Canada, in reasons by Bastarache J., indicated that "the common law meaning of in loco parentis is not helpful in determining the scope of the words 'in the place of a parent' in the Divorce Act" (at para. 20). (In loco parentis had been changed from Latin to the vernacular, but with no intent to alter the meaning.)

81                  The Supreme Court endorsed what is written in Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 87:

  • Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

82                  Bastarache J. stated that under the Divorce Act, in that part dealing with children, the focus is on what is in their best interests and that the phrase "in the place of a parent" must be given a meaning that is "reflective of the purposive and contextual approach to statutory interpretation advocated by this Court" (at para. 32). Accordingly, it was held that once established, the relationship gave rise to a continuing obligation to provide financial support until the status of the child under the Divorce Act had come to an end.

83                  The common law understanding of in loco parentis emphasized the pecuniary responsibility undertaken by the adult benefactor. There was little concern about the closeness of the relationship, although where the financial burden was voluntarily assumed, it was natural that bonds of affection would develop.

84                  Under the Divorce Act, the determination of whether a relationship in loco parentis had developed tends to be determined on the basis of non-pecuniary matters, such as whether the adult has a loving relationship with the child and whether the adult exercises disciplinary authority and makes educational and health care decisions.

85                  In the Chartier case, Bastarache J. makes it clear that the determination of the parental relationship is to be made "as of the time the family functioned as a unit" (at para. 36). Assuming the stepparent was paying his fair share of the family maintenance, the common law standard of determining whether the stepfather was in loco parentis to a child, based largely on pecuniary support, would result in virtually every stepparent being declared to be in loco parentis, with the financial implications that entail for future years. Hence, a different standard was employed under the Divorce Act, emphasizing the closeness of the bond between stepparent and child (see para. 3 of reasons in Chartier).

86                  I now turn to the task at hand, which is to interpret the meaning of the in loco parentis relationship under The Family Maintenance Act. It is true that The Family Maintenance Act also deals with children, and there is no doubt that there is a strong focus on ensuring their financial security. Section 2(1) of the Act specifies that the best interests of the child shall be the paramount consideration of the court in all proceedings under the Act. However, the scheme of the Act is entirely different than the Divorce Act, and therefore, the purposive and contextual approach to interpretation may yield a different meaning to the phrase in loco parentis.

87                  The Family Maintenance Act has a broader reach than the Divorce Act in the sense that it applies to more than married couples and their children. Section 36 of The Family Maintenance Act falls under Part IV, dealing with children. It contemplates four distinct categories of persons who will have some primary or secondary responsibility for the financial support of children:

  • (1)      parents (biological or adoptive) in relation to their children;
  • (2)      a married spouse in relation to a stepchild;
  • (3)      a common-law spouse in relation to a stepchild; and
  • (4)      a person standing in loco parentis to a child.
  • The section reads as follows:
  • Obligation to support children
  • 36(1)      Each parent of a child has the obligation, subject to The Child and Family Services Act [S.M. 1985-86, c. 8 - Cap. C80], to provide reasonably for the child's support, maintenance and education, whether or not the child is in that parent's custody.
  • Child of spouse
  • 36(2)      A spouse has the obligation to provide reasonably for the support, maintenance and education of any child of the other spouse, while the child is in the custody of the spouses, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.
  • Child of cohabiting person
  • 36(3)      A person who is cohabiting in a conjugal relationship with, but is not married to, another person has the obligation during cohabitation to provide reasonably for the support, maintenance and education of any child of that other person, while the child is in the custody of the persons or either of them, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.
  • Person standing in loco parentis
  • 36(4)      A person who stands in loco parentis to a child has the obligation to provide reasonably for the support, maintenance and education of that child, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.

88                  It will be noted that the obligation under subss. (1), (2) and (3) does not depend upon a close, personal relationship with the child. The biological or adoptive parent is obliged to support his or her child whether or not in that parent's custody. The obligation to support a stepchild under subs. (2) is an obligation "while the child is in the custody of the spouses," and it is of no moment that the stepparent has no positive relationship with the child. The obligation to support a stepchild under subs. (3) is during cohabitation between the common-law spouses, and again, it does not depend on the quality of the relationship with the stepchild.

89                  Assuming for a moment that no positive relationship developed between the stepparent and the child under subs. (3), it would seem that the obligation to provide support will end when cohabitation ends or when the common-law husband walks out on his common-law wife or where the common-law wife, with child in tow, walks out on her common-law husband. This has a bearing on the meaning to be attributed to the relationship in loco parentis. It would seem strange indeed that the obligation of a stepparent would end abruptly upon separation, while if one is found to be in loco parentis to a child, the obligation is locked in for years to come.

90                  It seems evident that the stepparent under subs. (3) might develop a close and meaningful relationship to the child which would then continue after cohabitation has ended. In short, it is arguable that the stepparent who was in loco parentis to the child would continue to be in loco parentis under subs. (4). However, s. 36 appears to make that a matter of choice for the stepparent.

91                  I would observe that s. 36(4) is worded in the present tense - "[a] person who stands in loco parentis to a child." It does not refer to a person who stood in loco parentis at some previous time. The Divorce Act too is written in the present tense. A child of the marriage is defined as a child of whom one is the parent and for whom the other stands in the place of a parent. But the determination of that status is to take place "as of the time the family functioned as a unit." The reality is that the relationship under the Divorce Act is determined at a time past, before separation and divorce proceedings began. That is not the intent of the various subsections of s. 36. The obligation under subs. (2) is while the child is in the custody of the spouses, and under subs. (3), it is during cohabitation, and under subs. (4), it is while the relationship in loco parentis exists. The way the statute is framed contemplates that there will be times when the relationship will not exist, and if that be so, there will be no further obligation under subs. (4).

92                  In his reasons in the Chartier case, Bastarache J. writes (at para. 32):

  • The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.
  • That is so for the Divorce Act, but not The Family Maintenance Act. The Family Maintenance Act contemplates an abrupt cessation of the relationship and of the financial obligation that goes with it. In writing the legislation in these terms, perhaps the legislature gave tacit recognition that to compel a person to pay for the support, maintenance and education of someone else's child with whom no continuing relationship is desired may not be in the best interests of the child.

93                  It might be argued that if a stepparent under subs. (3) does have a meaningful parental relationship to the child, then that status of being in loco parentis automatically continues after cohabitation has ended. But that conclusion would be close to absurd. It would allow the indifferent stepparent to escape any continuing obligation, while imposing a long-lasting obligation upon the stepparent who has had the decency to be kind and friendly toward the stepchild during cohabitation. The subjective standard for determining whether the relationship in loco parentis exists, which is suited to cases under the Divorce Act, would be imported into The Family Maintenance Act, where the obligation to provide support seems to rest on objective standards.

94                  Perhaps most importantly, the obligation under subs. (4) falls upon a broader category of persons than former stepparents. The status of being in loco parentis to a child extends to any person who stands in place of a parent. Under circumstances that can easily be imagined, that could include a grandparent, an uncle or aunt, or simply a family friend. The novels of Charles Dickens are full of stories involving these relationships. Yet it would be astonishing to tax the benefactor with an ongoing statutory obligation to continue an act of generosity far into the future.

95                  In this very case, in her affidavit evidence, the petitioner states that an older daughter, Deborah, now 17 years old, and who has medical problems, "has never lived with me." She resides with her maternal grandfather. I suspect he would be surprised to learn that his voluntary assistance, plus the manner in which the provisions of The Family Maintenance Act are to be interpreted, place him under an obligation to maintain Deborah perhaps well beyond her majority. The definition of "child" under s. 35.1(b) includes a person over 18 years of age who, by reason of illness, disability or other cause, is not able to be self-supporting. And under s. 37(5), the duty to support and maintain can be enforced against the estate of the person charged with the obligation. Hence, in theory at least, the grandparent may be obliged to provide support for the rest of his life, and his estate thereafter, even though he might wish, for perfectly valid reasons, to bring the relationship to an end.

96                  The history of The Family Maintenance Act suggests that this was not the legislative intent. When first enacted in 1978, The Family Maintenance Act contained a definition of the word "parent" as including a person standing in loco parentis to a child. It also contained the equivalent of the present s. 36(1), under which each parent has the obligation to provide reasonably for the child's support, maintenance and education, whether or not the child is in that parent's custody, until the child attains the full age of 18. Under the Act of 1978, a person standing in loco parentis could indeed be held liable for ongoing support. But that appears to have been a matter of legislative inadvertence. In 1983, the definition of "parent" was amended to read as it now does; namely, that it means a biological parent or adoptive parent. The definition no longer includes a person standing in loco parentis toward a child. It is clear that the legislature intended that there be a significant difference in the obligation of a biological or adoptive parent as against the obligation under s. 36(4).

97                  Indeed, if the understanding of the term had corresponded to what we now know to be the understanding of its use in the Divorce Act, there would have been absolutely no need to amend The Family Maintenance Act in 1983. The definition of "parent" could have been left to include a person standing in loco parentis to a child, and the permanency of that status would have been reflected in the obligation of a parent under s. 36(1).

98                  When The Family Maintenance Act was about to be amended in 1983, a prominent member of the family bar in Manitoba appeared before the Standing Committee on Statutory Regulations and Orders on July 19th to urge that s. 12(4) (now the present s. 36(4)) should be revised to read, "A person who stands or has stood in loco parentis to a child has the obligation to provide reasonably for the support, maintenance and education of that child, ...." The proposed revision would have negated the very amendment which was under legislative consideration and, if accepted, would have made the obligation under s. 36(4) continuing and perhaps permanent in nature. This invitation was rejected by the then Attorney General. On July 26, 1983, the following exchange took place during deliberations of the same legislative committee:

  • MR. G. MERCIER: The suggestion by Mr. Fishman on 12(4) was that it should read "a person who stands in loco parentis or has stood in loco parentis."
  • HON. R. PENNER: I am advised that the case law, which apparently is supported, is that if you back out from in loco parentis, you back out. You're no longer in loco parentis and shouldn't be obliged as if you were, but we do want to deal with people who stand in loco parentis. That too would be consistent with The Divorce Act.

99                  Whether consistent or inconsistent with the Divorce Act, the comment by the Attorney General, and the fact that the revision was not enacted, indicate in the clearest possible way that the legislature had no intention of altering the common law meaning of in loco parentis. Judges and academics may consider this backward social thinking, but our task is to discern the intent of the legislature, and it is not a difficult task given this legislative history.

100               My colleagues warn against "adopting historical interpretations in modern situations that have changed dramatically." But it was less than 20 years ago that the legislature made its intentions clear, and the situations have changed hardly at all, let alone dramatically, since the 1983 amendment.

101               In his reasons in the Chartier case, Bastarache J. states in para. 21 that the provisions of the Divorce Act dealing with children focus on what is in the best interests of the children of the marriage, not on the biological parenthood or legal status of children. But that is in stark contrast to the provisions of The Family Maintenance Act, which do indeed concentrate on the status of the parties vis-à-vis the children. It cannot do otherwise given the fact that The Family Maintenance Act deals with a range of relationships that are not contemplated in the Divorce Act.

102               In the Chartier case, Bastarache J. questioned the point of referring to an in loco parentis relationship in the Divorce Act if the relationship can be unilaterally terminated. There is a much stronger reason for doing so in The Family Maintenance Act. The Divorce Act applies only to married persons who seek to be divorced, and the only person who can be said to be in loco parentis to a child is a stepparent. By contrast, under The Family Maintenance Act, a person in loco parentis to a child might be someone outside the immediate family circle. It seems to me that foster parents, for example, would fall under the common law understanding of being in loco parentis to a child in their care, even in the absence of a loving relationship. No doubt, foster parents are provided with financial resources to support and maintain the child and are compensated for doing so. But should there be a failure to provide adequate support, the obligation is enforceable by the courts under s. 36(4).

103               On the other hand, no one would suggest that foster parents are bound to provide support indefinitely. If they decide that they no longer wish to serve in the role as foster parents, they are free to retire, without lingering obligations to those who have benefitted from their care in previous years.

104               In parenthesis, I would note that the Ontario Family Law Act, R.S.O. 1990, c. F.3, does not use the phrase in loco parentis or the equivalent translation "stands in the place of a parent" which appears in the Divorce Act. The Ontario legislation defines "parent" as including a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for consideration in a foster home. In short, save for the exclusion, the Ontario legislation recognizes that a foster parent might well fall under the definition of a substitute parent. There is nothing in The Family Maintenance Act which would exclude foster parents from the operation of s. 36(4).

105               In his judgment in Chartier, Bastarache J. points out that the Manitoba Court of Appeal was in error in drawing "a distinction between children born of both parents and stepchildren" when the Divorce Act makes no such distinction (at para. 44). Those distinctions are indeed obvious and intended in The Family Maintenance Act, where the obligations under the various subsections of s. 36 are all quite different. Moreover, so too are the corresponding rights. Bastarache J. makes the point in his reasons in Chartier that a stepparent under the Divorce Act not only incurs obligations, but "[h]e 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" (at para. 39). By contrast, The Family Maintenance Act provides under s. 39(2) that only a parent - defined as a biological or adoptive parent - has the right to apply for custody or access. A person standing in loco parentis has no such right. No doubt a guardianship application can be advanced under appropriate circumstances under other legislation, but there is nothing in The Family Maintenance Act to provide a person standing in loco parentis to a child and with the obligations under s. 36(4) with any correlative rights.

106               I can only conclude that the relationship in loco parentis under The Family Maintenance Act is not of a permanent nature, and the order requiring the respondent to pay support to the child Kristen Grace-Marie Paul must be set aside. I leave it to others to determine whether, this obligation being removed, his obligation to support his biological child might increase.

107               I arrive at this result from a purposive and contextual approach to the interpretation of the statute. I should add that the result is consistent with other rules governing the interpretation of statutes.

108               In his reasons in Chartier, Bastarache J. at no time disputes the conclusion reached by this court in Carignan as to the common law understanding of in loco parentis. It is a status voluntarily assumed and terminated at the will of the benefactor.

109               There is a general presumption that the legislature does not intend to change the common law - in this case, the common law meaning of in loco parentis - unless its intent is clearly expressed. See Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002) at 395, and see P. St. J. Langan, Maxwell on the Interpretation of Statutes, 12th ed. (London: Sweet & Maxwell, 1969) at 116.

110               Concerning the important amendment in 1983, there is a presumption that when an amendment is made, the legislature intends to make a change in the law. See The Canadian Encyclopedic Digest (Western), looseleaf, 3d ed., vol. 32 (Toronto: Carswell, 2002) "Title 137 - Statutes," at para. 374. In this case, it is presumed that the legislature intended to differentiate between parents (biological or adoptive) from a person standing in loco parentis, to differentiate between the permanent obligation on parents and the non-permanent obligation on a person standing in loco parentis.

111               There is also a presumption that when law terms are used in a statute, there is a tendency to regard them as terms of art and give them their legal meaning. See Sullivan and Driedger on the Construction of Statutes, at p. 47.

112               There is a presumption of stability in the meaning of words used in legislation. That is to say, the words are to be given the same meaning today as they were when the statute containing those words was first passed. See Sullivan and Driedger on the Construction of Statutes, at p. 105.

113               There is a presumption that if a technical phrase is used in one statute, that phrase will have the same meaning if it is employed in a subsequent statute. See Sullivan and Driedger on the Construction of Statutes, at pp. 162-63. In this regard, the phrase in loco parentis has been used in The Fatal Accidents Act, R.S.M. 1987, c. F50, in its traditional sense for many years prior to its use in The Family Maintenance Act.

114               If there is not now, then there should be a presumption against legislative madness. I would proclaim such a presumption here and now. It might be regarded as an extension of what is termed a "presumption against intending what is inconvenient or unreasonable." See Maxwell on the Interpretation of Statutes, at p. 199. Consider this hypothetical scenario. A man cohabits in a conjugal relationship with a woman who has three children, ages 2, 4 and 6. The father of those children has either disappeared, is destitute or is dead. Cohabitation continues for the better part of a year, during which the man pays his share of the household expenses, and more. He is kind to the children and takes an interest in their care, health and, in the case of the oldest child, education. The woman decides, for no particular reason, to break off the relationship and does so, taking her children with her. She then sues him for the maintenance of her three children. At the same time, she advises that he is to have no access to any of the children. A court concludes that he stood in loco parentis to the three children under s. 36(3), and consequently, he must now meet the obligation to maintain the three children under s. 36(4). The man's annual income is $100,000, and under the Manitoba Child Support Guidelines Regulation, Man. Reg. 58/98, he is obliged to pay almost $20,000 per year and over $300,000 before the youngest child reaches the age of majority. There must be a presumption that no legislative body would be afflicted by madness to the point of devising a scheme so illogical, unjust and punitive as would lead to this result.

115               These factors, even including the new presumption, are not by themselves determinative. Even in combination, they might be secondary to a purposive and contextual approach to interpretation. But in the present case, they tend to support the conclusion which I reach by taking the purposive and contextual approach.

116               I would allow the appeal and set aside the order of maintenance with respect to the child Kristen Grace-Marie Paul. In reaching this conclusion, it is irrelevant whether the respondent was or was not in loco parentis to the child in question. If he was ever in loco parentis, he does not want the relationship to continue, and he is entitled to come to that decision.

117               Since my colleagues are of a different view, I feel constrained to comment briefly on the evidence in the present case. It consists of a few brief statements in affidavits by the two parties which are conflicting in certain respects. The petitioner's affidavit asserts that the respondent "shared in all the parenting responsibilities." The respondent's affidavit states that he "help[ed] out with her kids," but that the petitioner was "always in charge of disciplining them." There is nothing in any of the affidavit material indicating that during the three years, five months of cohabitation, the respondent spent so much as a loonie on the maintenance of the stepchild in question, other than what might be inferred from those assertions. There is agreement that the child called the respondent "Dad." After separation, the respondent exercised visitation rights sporadically, but claims that he visited with the stepchild Kristen only because the petitioner made that a condition for visiting his daughter Natasha. The petitioner denies imposing that condition. On this tenuous basis, and without the benefit of viva voce testimony, the motions judge held that the necessary relationship had been established "in every sense of the word" (at para. 8). It is apparent to me that a finding of an in loco parentis relationship, with all its consequences, is arrived at all too easily.

  
_____________________________ J.A.


[1]    Manitoba and New Brunswick are the only two remaining provinces that continue to use the Latin phrase in their definition of child. See Family Services Act, S.N.B. 1983, c. 16 - Chap. F-2.2.

[2] An Act to Amend The Family Maintenance Act, S.M. 1982-83-84, c. 54, s. 5. The situation with respect to division of property (which does not arise in this case) is different. In the case of Nova Scotia (Attorney General) v. Walsh, [2002] S.C.J. No. 84 (QL), 2002 SCC 83, the Supreme Court held that the exclusion of unmarried, cohabiting, opposite sex couples from marital property legislation was not discriminatory and was not contrary to the Canadian Charter of Rights and Freedoms. On the other hand, the Manitoba legislature has passed, but not yet proclaimed into force, The Common-Law Partners' Property and Related Amendments Act, S.M. 2002, c. 48, which extends to common-law partners all the rights of spouses in the province.

[3]    It is interesting to note that placing a legal obligation on a stepparent to support his wife's children is not new. The Poor Law Amendment Act, 1834 (U.K.), 4 & 5 Wm. IV, c. 76, s. 57, provided that a husband was to be placed under an obligation to support his wife's children from previous marriages. He was "liable to maintain such child or children as a part of his family, and shall be chargeable with all relief, or the cost price thereof, granted to or on account of such child or children." MacPherson, A Treatise on the Law Relating to Infants (London: Maxwell and Son, 1842) at 210.

[4] Section 1 of The Family Maintenance Act defines parent as "a biological parent or adoptive parent of a child and includes a person declared to be the parent of a child under Part II."