Chartier v. Chartier, [1999] 1 SCR 242

Chartier v. Chartier, [1999] 1 S.C.R. 242

Sharon Leslie Chartier                                                                      Appellant

v.

Gerald Leo Joseph Chartier                                                             Respondent

Indexed as:  Chartier v. Chartier

File No.:  26456.

Hearing and judgment:  November 12, 1998.

Reasons delivered:  January 28, 1999.

Present:  L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for manitoba

Family law ‑‑ Divorce ‑‑ Maintenance ‑‑ Interpretation of “child of the marriage” ‑‑ Child raised in family unit with biological mother and non‑biological father ‑‑ Non‑biological father assuming all roles of parent and holding child out as his own ‑‑ Non‑biological father unilaterally withdrawing from relationship with child on breakdown of marriage ‑‑ Whether an adult who is or has been in the place of a parent can withdraw from that position ‑‑ Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), s. 2(1), (2).

The respondent played an active role in caring for and was a father‑figure for his wife’s daughter from a previous relationship.  The parties discussed, but did not proceed with, the husband’s adoption of the child but amended her birth registration to indicate, falsely, that the husband was the child’s natural father and to change her name to his.  In a consent judgment in proceedings under The Family Maintenance Act, the husband acknowledged the child as a child of the marriage and was granted access to her.  The judgment, however, was silent as to her maintenance.  In subsequent divorce proceedings, a request was made for a declaration that the husband stood in the place of a parent to the child.  The husband contested the claim.  An interim order ordered him to pay monthly support for the child, suspended his access until a further order of the court and ordered a report concerning access.  That report recorded the husband’s desire to sever his relationship with the child.

The trial judge found that the husband had repudiated his parental relationship with the child and was not obligated to pay support for her.  The Court of Appeal dismissed the wife’s appeal for support for the child.  At issue here is under what circumstances, if any, can an adult who is or has been in the place of a parent pursuant to s. 2  of the Divorce Act  withdraw from that position.

Held:  The appeal should be allowed.

A person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent.  The court must look to the nature of the relationship to determine if a person in fact does stand in the place of a parent to a child.

The policies and values reflected in the Divorce Act  must relate to contemporary Canadian society.  They must be given a meaning that is both independent of the common law concept of in loco parentis (which was developed in various contexts during the 19th century) and reflective of the purposive and contextual approach to statutory interpretation advocated by this Court.

The court must address the needs of the child as of the date of the hearing or order.  The existence of the parental relationship under s. 2(2)  of the Divorce Act  must, however, be determined as of the time the family functioned as a unit.  The “material time” factor does not affect the determination of the parental relationship.  It simply applies to the age considerations that are a precondition to the determination of need.

The test for whether or not a person stands in the place of a parent should  not be determined exclusively from the perspective of the child.  The opinion of the child regarding the relationship with the step‑parent is important, but it constitutes only one of many factors to be considered.  In particular, attention must be given to the representations of the step‑parent, independently of the child’s response.

A determination of whether a person stands in the place of a parent must take into account all relevant factors, viewed objectively.  The court must determine the nature of the relationship and do so by looking at a number of factors, including 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 child of the marriage.  Some of the relevant factors in defining the parental relationship are:  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; and, 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, not only incur obligations.  He or she also acquires certain rights, such as the right to apply eventually for custody or access.  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 from the evidence and it must be established that the adult acted so as to stand in the place of a parent to the child.

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.  Concerns that individuals may be reluctant to be generous toward children for fear that their generosity will give rise to parental obligations were dismissed.  It is important to examine the motive behind a person’s generosity towards the children of the person they wish to be involved with or are involved with in a relationship.  Superficial generosity given merely because a person seeks the attention of a child’s parent should be discouraged because the rejection experienced by the child when that financial and emotional support is abandoned is not beneficial to society in general and to the child in particular.

The concern that a child might collect support from both the biological parent and the step-parent was not a valid one.  The contribution to be paid by the biological parent should be assessed independently of the obligations of the step‑parent.  The obligation to support a child arises as soon as that child is determined to be “a child of the marriage”.  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.

Adoption proceedings remain relevant and important even though obligations regarding “children of the marriage” are identical under the Divorce Act  and The Family Maintenance Act.  Legal adoption will have a significant impact in other areas of the law, most notably trusts and wills.

Cases Cited

Approved:  Theriault v. Theriault (1994), 149 A.R. 210; disapproved:  Carignan v. Carignan (1989), 61 Man. R. (2d) 66; considered:  Laraque v. Allooloo (1992), 44 R.F.L. (3d) 10; referred to:  Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto‑Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103; Siddall v. Siddall (1994), 11 R.F.L. (4th) 325; Andrews v. Andrews (1992), 97 Sask. R. 213; Eschak v. Biron, [1993] N.W.T.R. 255; Delorme v. Delorme (1993), 45 R.F.L. (3d) 373; Bradbury v. Mundell (1993), 13 O.R. (3d) 269; Hock v. Hock, [1971] 4 W.W.R. 262; Harrington v. Harrington (1981), 33 O.R. (2d) 150; Miller v. Miller (1988), 13 R.F.L. (3d) 80; Droit de la famille--1369, [1991] R.J.Q. 2822.

Statutes and Regulations Cited

Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .), ss. 2(1), (2), 16(1).

Family Maintenance Act, C.C.S.M., c. F20.

Interpretation Act , R.S.C., 1985, c. I‑21 , s. 12 .

Authors Cited

Diduck, Alison.  “Carignan v. Carignan:  When is a Father not a Father?  Another Historical Perspective”(1990), 19 Man. L.J. 580.

Farquhar, Keith B.  “Termination of the In Loco Parentis Obligation of Child Support” (1990), 9 Can. J. Fam. L. 99.

McLeod, James G.  Annotation on Primeau v. Primeau (1986), 2 R.F.L. (3d) 114.

Payne, Julien D.  Payne on Divorce, 4th ed. Scarborough, Ont.:  Carswell, 1996.

APPEAL from a judgment of the Manitoba Court of Appeal (1997), 118 Man. R. (2d) 152, 149 W.A.C. 152, 154 D.L.R. (4th) 431, 29 R.F.L. (4th) 96, [1997] 8 W.W.R. 348, [1997] M.J. No. 371 (QL), allowing in part an appeal and dismissing a cross‑appeal from a judgment of De Graves J. (1996), 111 Man. R. (2d) 27, [1996] M.J. No. 271 (QL).  Appeal allowed.

Carla B. Paul, for the appellant.

No one appearing for the respondent.

The judgment of the Court was delivered by

1                                   Bastarache J. -- In this appeal, the Court is asked to determine whether a person who stands in the place of a parent to a child within the meaning of the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .), can unilaterally give up that status and escape the obligation to provide support for that child after the breakdown of the marriage.  The Court unanimously decided that a person cannot do so and allowed the appeal at the hearing held on November 12, 1998.  The following are the reasons for allowing the appeal.

Facts

2                                   The parties began a common law relationship in November 1989 and married on June 1, 1991.  Their child, Jeena, was born on August 29, 1990.  The parties separated in May 1992, later reconciled for a month or two, then permanently separated in September 1992.

3                                   Jessica is the child of the wife from a previous relationship.  While the parties lived together, the husband played an active role in caring for both children and was a father-figure for Jessica.  The parties discussed, but did not proceed with, the husband’s adoption of Jessica.  The parties did amend Jessica’s birth registration to indicate, falsely, that the husband was Jessica’s natural father and to change her name to his.

4                                   On March 17, 1994, in a consent judgment in proceedings under The Family Maintenance Act, C.C.S.M., c. F20, the husband acknowledged both Jessica and Jeena as children of the marriage and was granted access to them.  He agreed to pay maintenance for Jeena, but the judgment was silent as to maintenance for Jessica and for the wife.  The wife commenced divorce proceedings in February 1995 and included in her claim the request for a declaration that the husband stands in the place of a parent to Jessica.  The husband contested the claim.  The interim order of April 19, 1995 ordered the husband to pay monthly support for Jessica and for the wife, suspended access of the husband until a further order of the court and ordered a report from Conciliation Services concerning access.  That report of October 1995 recorded the husband’s desire to sever his relationship with Jessica.

5                                   At trial, De Graves J. ordered spousal support, a reduction in the monthly support for Jeena, awarded costs to the wife and found that the husband had repudiated his parental relationship with Jessica.  On appeal, the Court of Appeal did not find that the award of spousal support warranted appellate review and dismissed the husband’s cross-appeal.  The Court of Appeal allowed  the wife’s appeal on the issue of the reduction of monthly support for Jeena.  The Court of Appeal dismissed the wife’s appeal for support for Jessica, set aside the trial judge’s order as to costs and directed that no costs be awarded at trial.

6                                   It should be noted that both parties agreed that their rights and obligations under The Family Maintenance Act and the Divorce Act  were identical for the purposes of the action and appeal, and that the courts should proceed as though the Divorce Act  were the applicable statute.  The same position was adopted in pleadings before this Court.

Relevant Statutory Provisions

7                                   Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .)

2. (1)  In this Act,

                                                                   . . .

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

(a) is under the age of sixteen years, or

(b) is sixteen years of age or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

                                                                   . . .

(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.

Judicial History

Manitoba Court of Queen’s Bench (Family Division) (1996), 111 Man. R. (2d) 27

8                                   De Graves J. held that it was abundantly clear in Manitoba trust and family law that the spouse standing in the place of a parent, having voluntarily assumed that role, had the right to withdraw unilaterally from that role:  see Carignan v. Carignan (1989), 61 Man. R. (2d) 66 (C.A.).  In response to the appellant’s submission that the case be revisited, he analysed the case.  Before Carignan, the authorities were not clear in delineating who was a “child of the marriage” in the context of parties bringing to a marriage children of other relationships or unions outside that marriage.  In Carignan, the court interpreted the words “at the material time” in s. 2(1)  and (2)  of the Divorce Act  as referring only to the age of the child.  De Graves J. found that the spouse who stood in the place of a parent was entitled to withdraw from that status at any time.  He found that the respondent was entitled to and did, in July 1995, repudiate his obligation towards Jessica as a “child of the marriage”.

9                                   De Graves J. noted that the appellant had not pursued Jessica’s natural father for support although he was not a person without resources.  He declared that the respondent was not obligated to pay any support for Jessica from July 1995.  He would not order repayment of the support payments made, but the respondent was entitled to a credit on the appellant’s award of costs.  He ordered spousal support and child support for Jeena.

Court of Appeal of Manitoba (1997), 118 Man. R. (2d) 152

Philp J.A.

10                               Philp J.A. did not find that the trial judge’s award of spousal support warranted appellate review.  He allowed the wife’s appeal of the reduction in the monthly support for Jeena, set aside the trial judge’s order as to costs and directed that no costs be awarded.

11                               Philp J.A. noted that the right of a person to terminate a relationship in which he or she stands in the place of a parent was well settled in Manitoba:  see Carignan, supra.  The court had found that it was not a status that once acquired could never be shed.  He noted that modern marriages and other forms of cohabitation were often fragile and time-limited relationships and wondered how many obligations divorced or separated parties must carry with them as they travel from relationship to relationship.

12                               Philp J.A. found that the principle in Carignan has been applied in Manitoba, but had not been universally followed in courts of other provinces, including British Columbia, Saskatchewan and Alberta, where it was clearly rejected.  He found that where Carignan had not been followed, no clear alternative has emerged.  He was of the view that the Carignan case has the virtue of establishing an understandable and easily determined basis for imposing or excusing responsibility.  He also noted that the decision has not been uniformly accepted by academics.

13                               Philp J.A. accepted that the court has recognized its authority to overrule its prior decisions.  He was not persuaded, however, that this was one of the rare circumstances in which the court should depart from its earlier ruling.  Notwithstanding the disagreement in Canadian courts on the right of a person to terminate a relationship in which he or she stands in the place of a parent, Philp J.A. noted that Parliament has not moved to amend the Act.  Complex social policy issues were involved and he considered that it was Parliament’s role to articulate clear rules.  He also pointed out that provincial legislatures have enacted remedial legislation.

Twaddle J.A. (concurring)

14                               On the issue of the husband’s ability to repudiate his parental relationship with Jessica, Twaddle J.A. found that the court was bound by a previous decision of the court.  Although the court may depart from a previous decision, none of the circumstances in which it was right to do so (such as the previous decision’s having been made per incuriam) was present here.  The fact that other provincial courts of appeal have reached different decisions was not a ground for the court to review its decision, but rather for the Supreme Court of Canada to do so.

15                               Twaddle J.A. noted that his failure to discuss the merits of the previous decision should not be construed as support for or against its validity.  He saw no purpose in discussing the merits of a decision which he was bound to follow.

Issue

16                               Under what circumstances, if any, can an adult who is or has been in the place of a parent pursuant to s. 2  of the Divorce Act  withdraw from that position?

Analysis

17                               There is one body of case law, exemplified by Carignan, supra, that states that a person standing in the place of a parent is entitled to make a unilateral withdrawal from the parental relationship.  The other body of case law is typified by Theriault v. Theriault (1994), 149 A.R. 210 (C.A.); it states that a person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent and that the court must look to the nature of the relationship to determine if a person in fact does stand in the place of a parent to a child.

18                               Before considering these two lines of authority, I would note that in both cases the courts have engaged upon a historical review of the doctrine of loco parentis and taken the view that the words “in the place of a parent” used in the Divorce Act  were intended to have the same meaning.  The doctrine of loco parentis was developed in diverse contexts, trust law, tort law, master-apprentice relationships, schoolmaster-pupil relationships, wills and gifts . . ., at another time.  Alison Diduck, in “Carignan v. Carignan:  When is a Father not a Father?  Another Historical Perspective” (1990), 19 Man. L.J. 580, explains how this common law doctrine was applied in family matters, over the years, in various jurisdictions.  She concludes, at pp. 601-2, by saying:

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 de 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).  Notwithstanding Parliament’s choice of similar wording in the Divorce Act, 1985, it is arguably open to counsel (or to courts) to suggest that Parliament deliberately chose to reject the common law notion of in loco parentis, and that the current statute should be interpreted “free from the shadow of earlier authorities” (ibid., at 749).

19                               I agree that the 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”.  In the recent decision of Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, Iacobucci J. writes:

Although much has been written about the interpretation of legislation . . . Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely.  He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone.  At p. 87 he states:

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.

(See to the same effect R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.)

20                               In my view, 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 .

21                               This being said, it is my opinion that the decision in Theriault, supra, provides the proper approach to this issue as it recognizes 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 biological parenthood or legal status of children.  Theriault was an appeal from an interim maintenance award made to the mother and primary care-giver of two children made against the husband in a pending divorce suit.  The children were not the husband’s biological children.  The husband gave advice and supervision to the two children from infancy but, at the hearing for interim support, he argued that his commitment to the children arose from the marriage and was conditional on the continuation of that relationship.

22                               Kerans J.A. rejected the approach in Carignan, supra, and held, at p. 213, that once someone “has made at least a permanent or indefinite unconditional commitment to stand in the place of a parent”, the jurisdiction of the courts to award support under the Divorce Act  is triggered and that jurisdiction is not lost by a subsequent disavowal of the child by the parent.  Underlying Kerans J.A.’s decision is the best interests of the child.  At p. 213, Kerans J.A. held:

Our society values parenthood as a vital adjunct to the upbringing of children.  Adequate performance of that office is a duty imposed by law whenever our society judges that it is fair to impose it.  In the case of the natural parent, the biological contribution towards the new life warrants the imposition of the duty.  In the case of a step-parent, it is the voluntary assumption of that role.  It is not in the best interests of children that step-parents or natural parents be permitted to abandon their children, and it is their best interests that should govern.  Financial responsibility is simply one of the many aspects of the office of parent.  A parent, or step-parent, who refuses or avoids this obligation neglects or abandons the child.  This abandonment or neglect is as real as would be a refusal of medical care, or affection, or comfort, or any other need of a child.

23                               Other courts have also taken the view that a person who stands in the place of a parent cannot unilaterally withdraw from that relationship.  In Laraque v. Allooloo (1992), 44 R.F.L. (3d) 10 (N.W.T.S.C.), de Weerdt J., in rejecting the notion that a person can unilaterally withdraw from a relationship in which he or she stands as a parent to a child, focussed on the best interests of the children of the marriage.  At pp. 17-18, he held:

. . . the view that one can doff the in loco parentis role at will disregards the primary regard which the courts must surely have for the interests of dependant children, and the duty of the courts to ensure that those interests are judicially protected, and not ignored, especially where those interests are not separately represented. . . .

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.  Given that premise, it is difficult to conclude that this status is meaningless or can be negated at whim whenever the person in loco parentis is visited by second thoughts on the matter or decides to abandon the project altogether.

24                               See also Siddall v. Siddall (1994), 11 R.F.L. (4th) 325 (Ont. Ct. (Gen. Div.)); Andrews v. Andrews (1992), 97 Sask. R. 213 (C.A.); Eschak v. Biron, [1993] N.W.T.R. 255 (S.C.); Delorme v. Delorme (1993), 45 R.F.L. (3d) 373 (Ont. Ct. (Gen. Div.)); Bradbury v. Mundell (1993), 13 O.R. (3d) 269 (Gen. Div.).

25                               In Carignan, supra, the wife and the husband lived together for four years before they were married in 1978.  The wife’s two-year-old son lived with them. The parties separated in 1981.  The Court of Appeal found that the respondent did not stand in loco parentis to the child at the time of the trial and that therefore, he was not liable to pay support.  Further, the court found that anyone who is in loco parentis to a child may unilaterally withdraw from that relationship simply by indicating an intention to do so.

26                               Huband J.A. for the Court of Appeal considered the 19th century English case law with respect to two equitable doctrines in the areas of wills and estates, and trusts.  In the context of wills and estates, the courts were concerned with the rules involving “double portions”.  In these cases, the general rule was, as stated by Huband J.A., that “a gift by deed made by a testator after he had executed a will, represents an advance as against what the child is to receive by will.  A rebuttable presumption arises against the child receiving a double portion” (at p. 67).  This rule applied both to natural parents and to adults who were in loco parentis to the child in question.  The leading cases with respect to the “double portion” rule that consider loco parentis describe this relationship as being created only where the adult indicates an intention to do so.  This description led Huband J.A. to conclude as follows, at p. 67:

It would seem appropriate that one would lose the status of being in loco parentis in the same manner as it is gained, by knowingly intending to terminate the relationship, and thus end the financial obligation.  It is surely not a status that, once acquired, can never be shed.  In dealing with double portions, the crucial issue is whether a relationship in loco parentis existed at the time the inter vivos benefit was conferred.  It is entirely possible that an in loco parentis relationship might have existed for some years, and then ended by the conscious decision of the individual concerned.

27                               Huband J.A. also examined the doctrine of advancement in the context of the law of trusts.  This doctrine creates a presumption that where property is purchased in the name of another, or transferred to another without consideration, a resulting trust arises in favour of the person who paid the purchase price.  This presumption does not operate where the purchaser stands in loco parentis to the person who receives the property.  The presumption in this type of case is that the purchaser intended to confer a benefit on such a person.  Again, the courts in the leading cases on this issue from the 19th century endorse the approach of the decisions made in the context of wills and estates with respect to the concept of loco parentis; the determination of whether or not this relationship exists depends on the intention of the adult.

28                               Huband J.A. also considered a number of Canadian decisions.  None of them provided him with convincing enough reasoning for him to question his view of the common law rule that an adult may end a loco parentis relationship unilaterally.  Huband J.A. concluded that the respondent in Carignan was not liable to provide maintenance for the petitioner’s son because he had ended any loco parentis relationship that existed unilaterally as he was entitled to do.

29                               In the present appeal, the Court of Appeal, although noting that the decision has not been universally followed, confirmed the judgment in Carignan for essentially two reasons.  The first reason is that the decision displays a “certain logic and reasonableness” because the modern institution of marriage has substantially departed from its traditional roots.  Philp J.A. noted, at p. 156, that modern marriages are “often fragile and time-limited relationships” and therefore, this raises the question of how many obligations persons must carry with them as they move from relationship to relationship.  It would not be logical, in his view, for a step-parent who takes on obligations with respect to a spouse’s children to be saddled with this obligation indefinitely while a step-parent who takes on no such obligation is entitled to walk away from the relationship scot-free.  The finding in Carignan avoids this inconsistency.  The second reason, at p. 157, relates to the fact that the decision in Carignan establishes “an understandable and easily determined basis for imposing or excusing responsibility”.

30                               The decision in Carignan has been highly criticized as seen in the decisions reviewed above and in academic commentary, in particular that of Keith B. Farquhar, “Termination of the In Loco Parentis Obligation of Child Support” (1990), 9 Can. J. Fam. L. 99, and Diduck, supra.  The most obvious criticism is that it nullifies the effect of the relevant provisions of the Divorce Act .  If one can unilaterally terminate a relationship where a person stands in the place of a parent to a child, why define such a relationship as giving rise to obligations under the Divorce Act ?

31                               A further criticism of the analysis in Carignan is its treatment of the American authorities.  Huband J.A. cited a number of U.S. cases from various jurisdictions which in his view support the conclusion that the loco parentis relationship can be unilaterally terminated.  The application of these cases in a Canadian context is not appropriate.  As Professor Farquhar stated, at p. 105:

. . . none of the cases cited involved jurisdictions where the general child support statutes impose an obligation on alternative parents to support a child.  Rather, the decisions in question all involved attempts to argue that the statutory duty of a natural parent to support his or her child might also, in some circumstances, include an alternative parent.  In Canada, where Parliament and the Legislatures have clearly stated that in some circumstances the duty to support a child does extend beyond natural parents to those standing in loco parentis, it may be argued that dicta from the United States should not be regarded as particularly persuasive.

32                               I do not agree with the reasoning in Carignan.  As noted above, the words “in the place of a parent” must be given a meaning that is independent of the common law concept and reflective of the purposive and contextual approach to statutory interpretation advocated by this Court.  Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult.  The interpretation of the provisions of the Divorce Act  relating to “child[ren] of the marriage” should be “given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”:  see Interpretation Act , R.S.C., 1985, c. I-21, s. 12 .  The reasoning in Carignan ignores one of the fundamental objectives of the Divorce Act  as it relates to children.  The provisions of the Divorce Act  that deal with children aim to ensure that a divorce will affect the children as little as possible.  Spouses are entitled to divorce each other, but not the children who were part of the marriage.  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.

33                               What, therefore, is the proper time period for determining whether a person stands in the place of a parent?  The term “at the material time” has been interpreted with reference to the parental status to mean “the time of the commencement of the proceedings” (see Hock v. Hock, [1971] 4 W.W.R. 262 (B.C.C.A.), at p. 273); “the time of the hearing” (see Harrington v. Harrington (1981), 33 O.R. (2d) 150 (C.A.), at p. 159); and has also been held to mean “whatever date is appropriate”.

34                               In Carignan, the Manitoba Court of Appeal held that the words “at the material time” have no reference to when the parental status occurred or existed, but only to whether the step-parent is “in the place of a parent” when the child is under 16 or over 16 but in a dependant state.  Huband J.A. noted that there is no reference to material time in s. 2(2) where the expression “in the place of a parent” is used.  He held that a proper interpretation of the two sections is that the court can make an order for maintenance against a person standing in the place of a parent only if the child is under 16, or over 16 and in a dependant state.  The court said, at p. 72:

If one looks back at the definition section, eliminating unnecessary words, it states that the child of the marriage means a child of two spouses who “at the material time” is under the age of sixteen years (forgetting for the moment clause (b) of the definition). The words “at the material time” refer only to the question of the age of the child.  Those words have no reference to the child's status “in loco parentis”.  Reference to the relationship in loco parentis follows in a separate definition provision which indicates that a child of two spouses includes a child in loco parentis.  Reading the two sections together, the court has jurisdiction to make an order of maintenance in favour of a child in loco parentis but only if the child is under the age of 16 “at the material time”.

35                               Similarly, in Miller v. Miller (1988), 13 R.F.L. (3d) 80, at p. 83, Scott L.J.S.C. of the Ontario Supreme Court put the matter in these terms:

The “at the material time” phrase refers to age or condition; the loco parentis subsection is in the present tense in both languages — and I fail to see how the at the material time concept can be imported from one subsection into the other.

36                               It is clear that the court must address the needs of the child as of the date of the hearing or order.  The existence of the parental relationship under s. 2(2) (b) of the Divorce Act  must however be determined as of the time the family functioned as a unit.  See Julien D. Payne, Payne on Divorce (4th ed. 1996), at p. 148.  If the “material time” was to be interpreted as in Hock, supra, it would be difficult to find a parental relationship in situations where the step-parent has little contact with the child between the separation and the divorce proceedings.  This is inconsistent with the purpose of the Divorce Act .

37                               The facts of the present case demonstrate why this interpretation is appropriate.  Until Mr. Chartier’s unilateral withdrawal from the relationship, Jessica saw the respondent as her father in every way.  He was the only father she knew.  To allow him to withdraw from that relationship, as long as he does it before the petition for divorce, is unacceptable.  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 .  Jessica was as much a part of the family unit as Jeena and should not be treated differently from her because the spouses separated.  The “material time” factor does not affect the determination of the parental relationship.  It simply applies to the age considerations that are a precondition to the determination of need.

38                               What then is the proper test for determining whether a person stands in the place of a parent within the meaning of the Divorce Act ?  The appellant argued that the test for whether or not a person stands in the place of a parent should be determined exclusively from the perspective of the child.  I cannot accept this test.  In many cases, a child will be very young and it will be difficult to determine whether that child considers the person as a parental figure.  Further, an older child may resent his or her step-parent and reject the authority of that person as a parent, even though, objectively, that person effectively provides for the child and stands in the place of a parent.  The opinion of the child regarding the relationship with the step-parent is important, but it constitutes only one of many factors to be considered.  In particular, attention must be given to the representations of the step-parent, independently of the child’s response.

39                               Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively.  What must be determined is the nature of the relationship.  The Divorce Act  makes no mention of formal expressions of intent.  The focus on voluntariness and intention in Carignan 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 .

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

41                               Huband J.A., in Carignan, 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.  I share the view expressed by Beaulieu J. in Siddall, supra, at p. 337:

It is important to examine the motive behind a person’s generosity towards the children of the person they wish to be involved with or are involved with in a relationship.  In many cases children are used as pawns by men and, on occasion, women who desire the attention of the children’s parent and once the relationship between the adults fail, the children are abandoned.  This is not to be encouraged.  If requiring men to continue their relationship, financially and emotionally with the children is a discouragement of generosity then, perhaps such generosity should be discouraged.  This type of generosity which leaves children feeling rejected and shattered once a relationship between the adults sours is not beneficial to society in general and the children, in particular.  After all, it is the court’s obligation to look out for the best interests of the children.  In too many of these situations the ultimate result is that the child is a mere object used to accommodate a person’s selfish and personal interests as long as the relationship is satisfying and gratifying.  As soon as things sour and become less comfortable, the person can leave, abandoning both the parent and child, without any legal repercussions.  . . .  It is important to encourage the type of relationship that includes commitment, not superficial generosity.  If relationships are more difficult for a person to extricate him- or herself from then, perhaps, more children will be spared the trauma of rejection, bruised self image and loss of financial support to which they have become accustomed.

42                               Huband J.A., in Carignan, also expressed the concern that a child might collect support from both the biological parent and the step-parent.  I do not accept that this is a valid concern.  The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent.  The obligation to support a child arises as soon as that child is determined to be a “child of the marriage”.  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.  (See Theriault, supra, at p. 214; James G. McLeod, Annotation on Primeau v. Primeau (1986), 2 R.F.L. (3d) 114.)

43                               Some concerns may also be raised with regard to the relevance of adoption proceedings where obligations regarding all “children of the marriage” are identical under the Divorce Act  and The Family Maintenance Act.  I recall that Mr. Chartier did not finalize his plans to adopt Jessica.  The simple answer to that is that legal adoption will nevertheless have a significant impact in other areas of the law, most notably trusts and wills; it retains its importance.

Conclusion

44                               The Court of Appeal, by relying on Carignan, made a distinction between children born of both parents and stepchildren.  As mentioned earlier, the Act does not make such a distinction.  Once it is determined that a child is a “child of the marriage” within the meaning of the Divorce Act , he or she must be treated as if born of the marriage.  As the Quebec Court of Appeal held in Droit de la famille --1369, [1991] R.J.Q. 2822 (C.A.), at p. 2827:

[translation] Once the status as child of the marriage is recognized, the Act does not allow the distinction to be made between a biological father and someone who stands in the place of one.  Nothing in the wording of this article in fact gives the impression that the legislator wanted to grant some sort of privilege to the spouse who stands in the place of the parent.

45                               Even if a relationship has broken down after a separation or divorce, the obligation of a person who stands in the place of a parent to support a child remains the same.  Natural parents, even if they lose contact with their children, must continue to pay child support.

46                               On the facts of this case, the respondent stood in the place of a parent toward Jessica.  The respondent represented to Jessica and to the world that he assumed full parental responsibility for her.  Mr. Chartier is the only father that Jessica has known owing to the fact that the parties led her to believe that the respondent was in fact Jessica’s biological father.  The respondent even considered adopting Jessica and the parties had Jessica’s birth registration amended to change Jessica’s name to correspond to the respondent’s.  This was done by falsely submitting an application stating that the respondent was Jessica’s natural father. After the separation, the respondent continued to have visits with Jessica.  Eventually access was terminated with regard to both Jessica and his biological child, Jeena.

47                               The respondent’s unilateral withdrawal from the relationship with Jessica does not change the fact that he acted, in all ways, as a father during the time the family lived together.  Therefore, Jessica was a “child of the marriage” when the parties separated and later divorced, with all of the rights and responsibilities which that status entails under the Divorce Act .  With respect to support from the respondent, Jessica is to be treated in the same way as Jeena.

Disposition

48                               At the hearing on November 12, 1998, the following decision was read:

We are all of the view that this appeal be allowed and the judgment of the Court of Appeal be set aside.  We declare that the respondent stands in the place of a parent to Jessica Marlo Chartier, reasons to follow.

This case is accordingly remanded to the Court of Queen’s Bench of Manitoba (Family Division) for determination of the quantum of child support.  This Court orders interim support of $200.00 per month for Jessica as of this date, subject to an application to the Court of Queen’s Bench to recover support from the date of the trial judgment to this date.

Appeal allowed.

Solicitors for the appellant:  Paul & Boonov, Winnipeg.