In Loco Parentis – Step Parents, Unwed Parents, Non-biological Parents and Child Support

In Loco Parentis – Step Parents, Unwed Parents, Non-biological Parents and Child Support/

In Loco Parentis – Step Parents, Unwed Parents, Non-biological Parents and Child Support

Nicholas J. Van Duyvenbode 8 January 2015

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.

The Divorce and Family Law Lawyers and Mediators at  RCMV LLP have experience and knowledge in advocating for your claims concerning legal recognition of parentage and the rights and responsibilities associated with such legal recognition.

Our Lawyers are understanding, trained and highly efficient and are here to assist you during the difficult and emotional transition caused by your separation and Divorce. Please contact us today for an appointment.

Contact Us

Stay up–to–date

Nicholas J. Van Duyvenbode 29 March 2018

Claiming Spousal and Child Tax Benefits, Credits and Deductions

Claiming child tax benefits and spousal support tax deductions after separating from your spouse and divorcing is extremely important to have confirmed to avoid disagreement and delay by the Canada Re…

Roger G. Rouault 27 February 2018

Who Is and How to Become a Legal Guardian of a Child

As we have previously discussed, guardianship in Alberta grants an individual certain rights and responsibilities towards a child. These rights include, among other items, the ability to decide where …

Alison J. Chickloski 11 December 2017

Step Parent Adoption in Alberta

The process of adopting a step child begins when the birth parent to the child and his or her new spouse files an Application in the Court of Queen’s Bench. The adoption forms which are necessary at…

Nicholas J. Van Duyvenbode 25 October 2017

Separation, Divorce and Privacy Protection Issues

When separating or divorcing, parties often are faced with having to disentangle and protect their personal information, whether that being accounts with passwords, back-up questions to accounts, clou…

Roger G. Rouault 21 September 2017

Child Support and Undue Hardship

Child support is crucial for ensuring that children have the financial support they need. However, the cost of supporting a child can be quite expensive. For parents struggling to make their child sup…