In November 1989, the parties began a common law relationship. Less than two years later, they married. A child was born arising from their relationship, and the wife brought to the relationship a child from a previous relationship. The husband played an active role in caring for both children and was a father figure to his wife's daughter. In 1992 the parties separate and in 1994, in a consent judgment, the husband acknowledged both children as children of the marriage and was granted access to them. In 1995, the wife commenced divorce proceedings. She included in her claim the request for a declaration that husband stood in the place of a parent to her daughter, which the husband contested. There had been some discussion of formal adoption, but it had never taken place. At trial, it was found that husband had repudiated his parental relationship and therefore he was not required to contribute any support for her. The trial judge found 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. On appeal, it was also noted that the right of a person to terminate a relationship in which he or she stood in the place of a parent was well settled in Manitoba and that the court was bound by a previous decision.
- Does the father have any support obligations arising out of his relationship to his ex-wife's daughter?
Bastarache, writing for the court, held that what needs to be determined is the nature of the relationship from an objective perspective, i.e. what would a reasonable person think the status of these people is to one another? It had been argued that it should be from the perspective of the child, but this was rejected as impractical.
The following factors should be considered in this assessment:
- Intention: both those expressed formally and inferred from conduct.
- A step parent cannot contract out of an in loco parentis relationship from the onset.
- Participation in the extended family: does the child participate in the extended family in the same way as would a biological child?
- Financial support: Does the stepparent provide financially for the child?
- Discipline: Does the person discipline the child?
- Holding out: Does the person represent to the child/the family/the world, either explicitly or implicitly, that he or she is responsible as a parent to the child?
- Role of biological parent: What is the nature or existence of the child’s relationship with the non-custodial biological parent?
- If the biological parent has an active role in the child’s life, this militates against a finding of in loco parentis.
Note that the rights go both ways; a person in loco parentis can apply for custody.
Applying this to the case at bar, it is clear that the stepfather stood in the place of a parent to Jessica; he represented to Jessica and the world that he assumed full parental responsibility for her. He was the only father she had ever known, and the parties led her to believe he was her biological father. After the separation he continued his visits with Jessica until his access was terminated with both girls.
Test for a parent to stand in loco parentis.
There are several criticisms of this decision in the academic literature.
- This ruling may have a chilling effect on stepparent relationships with children as it encourages stepparents to keep their distance in fear they will have a lifelong obligation to the child.
- In the era of serial relationships, a custodial parent may receive support from a biological parent and a string of step parents; where should this end?
- Some have critiqued the threshold as being too low; short relationships can result in a finding of in loco parentis. This is the broadest stepparent obligation in the common law world.
- The bulk of Supreme Court jurisprudence in family law emphasizes the importance of choice in family law and the role of personal choice in family life, yet this case specifically places obligations on stepparents who have chosen not to adopt the child.
- This demonstrates the importance of "best interests of the child" in this, as in every other, area of family law.