Michael Ford (post until Oct. 31/19)

Loco parentis – what you need to know

By Reesa Heft

In the context of family law, the term in “loco parentis” translates to “in the place of a parent”. The courts in Ontario have used this term to determine whether an individual stood in place of a parent and as such has the legal responsibilities associated with being a parent.

Such cases often arise when parties are in a common law relationship or marriage and have children from previous marriages or relationships. The court will often use a list of factors to determine whether an individual stood in place of a parent.

These factors include:

  1. The length and nature of the relationship between the parties,
  2. The relationship between the child and the party in question,
  3. Whether the individual contributed financially to support the child during the relationship,
  4. The timing of the court application for child support,
  5. Whether the child participated with the extended family,
  6. Whether the individual represents to the child or third parties that they are responsible as a parent to the child,
  7. Whether there has been consideration in adopting the child and,
  8. The nature or existence of the child’s relationship with the biological parent.

In this 2006 Ontario Superior Court of Justice case, the parties were married in 2001 and separated in 2004. The applicant had two children from an earlier marriage to the respondent’s brother who died one year before the parties were married. The respondent agreed he married the applicant out of love for his deceased brother and in an effort to maintain a tie between the children and their paternal grandparents. He alleged his relationship to the children was that of an uncle and not a parent.

The court cites a 1999 Supreme Court of Canada case which outlines the above factors used to determine the issue of in loco parentis. In paragraph 36, the court ultimately found that the material time period for determining whether a person stands in place of the parent is “as of the time the family functioned as a unit.” Furthermore, the test as to whether an individual stood in loco parentis is an objective one, as established from the evidence and facts.

In the Ontario Superior Court of Justice case, the respondent married the applicant with the intent to create a permanent relationship with the applicant’s children. Once married, he became the children’s stepfather and no longer an uncle. The parties formed a family; visiting relatives with the children and acting as a family unit. The respondent provided for the children and made efforts to discipline the children while they were together. The children had no other father and looked to the respondent as their father figure. As such, the court found that the respondent did, in fact, stand in the place of a parent to the children.

Important to note is that if decided by the court that an individual does, in fact, stand in place a parent, that person may be liable for legal obligations to the child as if they were a natural parent, such as child support.

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