In Loco Parentis
STEPPING INTO THE ROLE OF PARENT TO A CHILD.
The term “in loco parentis”, is Latin for “in the place of a parent” refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent.
A “parent” has the legal obligation to financially support their children in Alberta; and after separation, if the children live with one parent (i.e. the recipient) then the other parent must pay child support (i.e. the payor), based on the Divorce Act, RSC 1985, c 3 (2nd Supp) or the Family Law Act, SA 2003, c F-4.5 and the Federal Child Support Guidelines (the “Guidelines”).
While it’s obvious that the payor must pay support for his or her biological children; in certain circumstances that parent is obligated to pay child support for children who are not “theirs”, biologically. Although a non-exhaustive list, what the court will typically look at are the following considerations:
- The length of the relationship.
- Whether the parties are or were married.
- The relationship between the children and the payor parent.
- Whether the payor parent contributed to the support of the children during the relationship.
- When the Court Application is made for child support.
- Child support can be ordered based on one of two pieces of legislation applicable: either the Divorce Act, RSC 1985, c 3 (2nd Supp) and the Family Law Act, SA 2003, c F-4.5
- Under the Divorce Act, which applies only to married couples, a person is liable for child support if he or she “stands in the place of the parent”. It is a finding of fact specific to each case, with some considerations for a Court being:
- Whether the children participate in the extended family in the same way as would any biological children.
- Whether the person provides financially for the children (depending on ability to pay).
- Whether the person disciplines the children as a parent.
- Whether the person represents to the children, 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 children’s relationship with the absent biological parent.
- Under the Family Law Act, the issue is similarly dealt with by the following “test” applied in s. 38 of the Act:
- A person is standing in the place of a parent if the person:
- Is the spouse of a parent of the children or is or was in a relationship of interdependence of some permanence with a parent of the children, and;
- Has demonstrated a settled intention to treat the children as the person’s own children.
- In determining whether a person has demonstrated a settled intention to treat the children as the person’s own children, the Court may consider any or all of the following factors:
- The children’s ages.
- The duration of the relationship of the children with the person.
- The nature of the children’s relationship with the person, including the children’s perception of the person as a parental figure, the extent to which the person is involved in the children’s care, discipline, education and recreational activities, and any continuing contact or attempts at contact between the person and the children if the person is living separate and apart from the children’s other parent.
- Whether the person has considered applying for guardianship of the children, adopting the children, or changing the children’s surname to that person’s surname.
- Whether the person has provided direct or indirect financial support for the children.
- The nature of the children’s relationship with any other parent.
- Any other factor that the Court considers relevant.
The issue of in loco parentis and the potential liability to pay stepparent child support, and what the amount should be, can be a complex one – but it doesn’t have to be.
At GDE FAMILY LAW, we have experience on the issue of in loco parentis and will effectively review your options with you.