Andela v Jovetic: deemed parenthood in cases of cohabitation
The judgment of Justice Reilly in the matter of Andela v Jovetic was released on February 7, 2011. The most contentious issue in dispute was whether Mr. Jovetic had an obligation to pay child support for his common law partner's two children, Rianna and Clinton. The question turned on whether the applicant could prove that Mr. Jovetic demonstrated a settled intention to treat Rianna and Clinton as members of his family.
The applicant, Lesley Andela, and respondent, Michael Jovetic, began cohabitating in the spring of 1998 (though the evidence was somewhat in dispute). Both parties had children from previous marriages: Ms. Andela had a daughter Rianna (age 17) and son Clinton (age 15), and Mr. Jovetic had two sons, Michael Jr. (age 28) and Jason (age 13). In November 2004, after cohabiting for several years in rented premises with Ms. Andela and her two children, the couple purchased a home as joint tenants in Cambridge, Ontario. The couple finally separated on December 9, 2006.
The evidence in this case demonstrated that, at times, Mr. Jovetic and Ms. Andela had an acrimonious and volatile relationship marked by periods of separation of up to a few months and frequent confrontations that occasionally required police intervention, arrests, charges and incarceration.
Although Ms. Andela was receiving child support from her children's biological father, Allan Simons, she made the argument that Mr. Jovetic was also obligated, pursuant to s. 31 of the Family Law Act, to provide child support for her children, as he had demonstrated a settled intention "to treat the children as his family."
The applicant and respondent gave conflicting evidence regarding Mr. Jovetic's parental role throughout their years of cohabitation. Ms. Andela advised the court that Mr. Jovetic was actively involved in the children’s activities, attending sports events, taking them to medical appointments, attending "parent teacher" meetings, and assisting Rianna with her homework. As well, the children were involved in celebrating holidays and special events with members of Mr. Jovetic’s extended family. She testified that the children thought of Mr. Jovetic as a father, or a father figure, though they always referred to him as “Mike.”
In contrast, Mr. Jovetic testified that while he maintained a strong affection for their mother, he never became close to the children and never intended to treat the children as members of his own family. He characterized his relationship with them as very different from his relationship with his natural son, Jason, to whom he demonstrated a strong emotional attachment (his testimony was supported by the testimony of Mr. Jovetic's ex-wife, Heather).
Justice Reilly, noting the conflicting testimony, considered the evidence of numerous other witnesses, including members of the parties' respective families, neighbours, and friends. The general consensus amongst those who testified was that Mr. Jovetic, though not nurturing, interacted with the children and disciplined them strictly. Witness testimony also revealed the strained relationship between the respondent and Rianna, who did not believe Mr. Jovetic had the right to "manage her."
The Law and Analysis
Section 31 of the Family Law Act provides that "every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full-time program of education, to the extent that the parent is capable of doing so." For the purposes of this section, "parent" includes "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 valuable consideration in a foster home by a person having lawful custody" (s. 1 FLA).
Justice Reilly thoroughly reviewed the relevant case law regarding factors to be considered by a court in its determination of whether a person has demonstrated a "settled intention." The leading case on this matter is Chartier v Chartier. Although that case dealt with the meaning of "parent" under the Divorce Act, Justice Reilly concluded that "the principles enunciated therein and the factors to be considered by the court apply equally to an application pursuant to section 31 of the Family Law Act." In that case, Mr. Justice Bastarache of the Supreme Court of Canada held that the proper test for determining whether a person stands in the place of a parent was not simply the perspective of the child.
Although that is one factor to consider, the question must take into account all factors relevant to the determination if it is to be viewed objectively.
In other words, the court must determine the nature of the relationship between the person in question and the child. Formal expressions of intent should not be the sole focus; rather, the court must deduce intention from actions and whether the "step-parent" of sorts has formed a "new family" with their new partner and the children in question. "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 upon 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."
Finally, Justice Bastarache dismissed the concerns of Justice Huband in Carignan that individuals may be reluctant to be generous toward children for fear that their generosity will give rise to parental obligations. Quoting Justice Beaulieu in Siddall, he wrote, "[the] type of generosity which leaves children feeling rejected and shattered once the relationship between the adults sours is not beneficial to society in general and the children, in particular."
After reviewing the law, Justice Reilly then turned to his analysis of the facts in the case. According to Justice Reilly, the evidence demonstrated that:
- Rianna and Clinton had considerable contact with their natural father and that emotional attachment was not replaced by any affection for Mr. Jovetic;
- both Mr. Jovetic and Ms. Andela contributed to the family income, which also included contributions from the children's biological father;
- the children did not refer to Mr. Jovetic as "dad" and there was no suggestion that he would adopt the children;
- the lack of closeness and the absence of “attachment” between Mr. Jovetic and Ms. Andela’s children could be contrasted with the evidence of the closeness that clearly existed between Mr. Jovetic and his son, Jason;
- in contrast, Mr. Jovetic's sharing of activities with Ms. Andela’s children was infrequent, transitory and largely because he was cohabiting with the children’s mother;
- following separation, there had been little, if any, contact between Mr. Jovetic and the children, and he had not seen them for almost three years at the time of trial;
- contact with extended families of both Mr. Jovetic and Ms. Andela with the children present was no more than might be expected given the fact that the couple had cohabitated for such a lengthy period; and finally
- the “child care” that Mr. Jovetic gave to the children appeared to have been largely for practical reasons-supervisory, but not nurturing care.
In the end, Justice Reilly held that although the length of cohabitation (8 years) was a relevant factor, Ms. Andala failed to establish that Mr. Jovetic demonstrated a settled intention to treat Rianna and Clinton as members of his family, and accordingly the application for child support failed.
This decision seems somewhat surprising, as one might expect a parental relationship to evolve over the course of such lengthy cohabitation, even where that relationship is somewhat strained. The court was careful to note that the presence of an active biological father does not eradicate the possibility of a finding of "settled intention" or parenthood. But in this case, when all factors were considered, the evidence simply did not establish a nurturing parental relationship between Mr. Jovetic and Ms. Andala's children. Moreover, although Justice Reilly applied the same analysis used in cases of marriage (and not simply cohabitation), the lack of a marriage between Mr. Jovetic and Ms. Andala may have played a role in Justice Reilly's final decision.