Stood in the place of a parent: Zacharias v. Zacharias

The following discusses a motion brought by a mother who wished to collect child support payments from her husband, who was not the biological father of her two children.  The mother was collecting approximately $1, 017.00 per month from the biological father, however decided that same was not sufficient and thus compromised her standard of living.

The court, therefore, was faced with two challenges:

  1. Determining whether the husband, namely Mr. Zacharias, stood in the place of a parent to the mother’s two children, thus creating a potential child support obligation; and
  2. If so, what the proper quantum of support was that was to be paid by Mr. Zacharias.

The Supreme Court of Canada enunciated the test to be applied when determining whether a person stands in the place of a parent within the meaning of the Divorce Act.  Essentially, the objective test consists of two major steps; firstly, determining the nature of the relationship, and secondly, determining the intention of the individual, i.e. whether his or her intention was to, in fact, stand in the place of a parent.  The Supreme Court of Canada further explained that intention can be expressed formally or it can be inferred from an individual’s actions.  When attempting to infer an individual’s intention, and define the existence of a parental relationship, the Court provided a non-exhaustive list of factors to consider that could assist with the determination.  Namely the following:

  • 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 the 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.

Justice Quinlan, in this decision, affirmed the importance of distinguishing between the existence of a clear, permanent, loving relationship formed with the child while operating within a family unit and a situation where a person is simply demonstrating kindness towards a child while operating within a family unit.

Based on the aforementioned factors, the Court found that Mr. Zacharias did in fact stand in the place of a parent to Ms. Zacharias’ children and expressed a clear intention to do so based on his behaviour.  Some examples of which are:

  • dedicating himself as the children’s father during his wedding to Ms. Zacharias;
  • listing himself as their father and filling in the father role at their baptism;
  • taking a parenting course;
  • attending parent-teacher interviews for the children; and
  • referring to himself and being referred to by the boys as Dad.

Once that was determined, thus affirming Mr. Zacharias’ obligation to contribute towards the support of the children, Justice Quinlan needed to determine the appropriate quantum of support to be ordered.   She explained that the techniques employed in order to determine the quantum to be paid by a person standing in the place of a parent vary and the courts have used the techniques of apportionment, percentages, and top-ups in relation to the obligation of step-parent. However, she determined that neither of the above mentioned techniques would be appropriate in this case.  Rather, she explained that since Mr. Zacharias had been receiving approximately $400.00 per month from Veteran Affairs for having the children listed as his dependents, they should benefit from same. Therefore, in a temporary order, which was to take the parties through to trial when a more fulsome assessment of the issues could be determined, Mr. Zacharias was required to pay $200.00 per month per child, in addition to $6,000.00 in arrears, all of which was to be enforced through the Family Responsibility Office.

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