Dating back to the 19th Century, Canadian courts have legitimized the presence of a non-biological parent of a child for custody purposes and in modern times, with increasing importance, child support obligations. In loco parentis is a Latin term that translates to “in place of a parent”, which may seem to be a crude or ill-fitting term for what nowadays is a very common occurrence in family structures where one or even both individuals claiming to be the parents of the child are not the biological parents.
Clients often wish to know when does an individual qualify for being in loco parentis? And what does this mean for their rights and responsibilities vis-a-vis the children? In regards to rights and responsibilities, an individual held to be in loco parentis of a child can have the same legal rights as a biological parent. Under the federal Divorce Act and provincial Family Law Act, an individual that is determined to be in loco parentis can then seek all rights associated with parentage, including determining where a child lives, who the child can have contact with, and how a child is to be raised, such as: education, religion, medical, travel, etc.
In terms of responsibilities, a parent held to be in loco parentis of a child, can also be held by the court as being required to contribute to the child’s financial welfare per S. 5 of the Child Support Guidelines.
Clients are usually very interested in how in loco parentis is actually proven in the ‘eyes of the law’. In order to be found to be in loco parentis, an individual must be held to have had a “settled intent” to treat the child as though they were indeed a parent of the child.
An initial reaction from one parent may be that they never thought that the other individual involved in a family law claim should be viewed as a parent, or that the individual themselves never thought they would be considered a parent of the child, or vice versa. Both individuals in question should be aware that it is not their opinion that is the determining factor; no individual can force upon the other individual their own perceived rights and responsibilities regarding the care and welfare of a child.
Rather, a court will determine on the basis of the facts that are presented and through applicable provisions in the Alberta Family Law Act, as well as common law tests set out in landmark cases such as Chartier v. Chartier, as to whether an individual will be deemed to be in loco parentis.
As such, even though an individual’s own views on parentage may be very clear, it is critical that a client understand that they need to consider the serious implications if they are not adequately knowledgeable in establishing or defending against claims of in loco parentis.
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