This motion concerned the payment of interim child support for child “M”, for whom the Respondent stood in the place of a parent – in loco parentis.
The parties were not married but began living together on September 1, 2013. The parties lived together continuously until they separated on April 20, 2020, whereby an incident occurred in the home and the Respondent was arrested for uttering threats. From this relationship the parties have two children – “N” and “A”. The Applicant brought a motion seeking interim child support from the Respondent for these two children as well as child M. The biological father of M had not been in the child’s life since the child was eleven-months-old, and the Applicant argues that the Respondent is the only father that M has ever known. When the parties initially moved in together M was five-years-old, by the time of this motion M was twelve-years-old. The Respondent denied that he stood in place of a parent with respect to M.
The Applicant elected to not pursue the biological father of M for child support and to solely pursue the Respondent in this regard. This was stipulated in the Separation Agreement between the Applicant and M’s biological father, as the father had a troublesome past and the Applicant did not want him involved in the life of M. The position of the Respondent was that the court was required to first determine the absent father’s child support obligation.
Therefore, the court had to decide if the Respondent stood in the position of a parent for M and if this obligation to support M should be off-set by the obligations of the biological father of M.
In determining if the Respondent stood in loco parentis with respect to M, Justice Chozik relied on the Supreme Court of Canada case Chartier v Chartier. This case includes relevant factors to be considered when evaluating if the parent stood in loco parentis, thereby demonstrating that the child is shown to be a “child of the marriage”. Several of the factors relied on by Justice Chozik in determining a prima facie case of an in loco parentis relationship were:
- The Respondent assumed financial responsibility for M throughout the duration of living together
- The Respondent included M under his work benefits
- It was accepted that M referred to the Respondent as “dad”
- The Respondent acted as a father in the life of M by attending events such as sporting games and parent teacher interviews
- The respondent publicly held himself out to be the father of M – this was determined by looking to events such as submitted photos of the Respondent and M as a “father and son” photograph
In examining additional cases, the court found that there may exist circumstances whereby the stepparent will be required to meet the primary obligation of child support. This may be required where the child needs such support to maintain the standard of living that the child enjoyed when living with the stepparent. In the case at hand, if the court were required to first determine the child support obligations of the biological father of M, before imposing any such obligation on the Respondent, this would leave M without support for some time. This is because the ability of the biological father to pay any support is unknown as they have not been in the child’s life and their financial position is unknown. Therefore, the court can exercise discretion to require the Respondent to pay full Child Support Guidelines for all children on an interim basis. The court noted that throughout this analysis they strive to deliver a decision that is consistent with the “’children first’” aim of the Guidelines – this entails that the standard of living of the child must be given primacy.
The court ultimately concluded that the Respondent stood in the position of in loco parentis and was required to pay child support on an interim basis for all three children.
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