In Loco Parentis – Do I owe Child Support when it’s not my kid?

It is not uncommon for a person going through a separation to be caught completely by surprise when they are ordered to pay support for a child that is not their biological child.  The term that the Courts use is standing in loco parentis or standing in the place of a parent.

This issue is becoming more prevalent in the Court’s as there has been a significant increase in blended families over the last 20 years in Canada.

Legal test

When tasked with determining if a person stood in the place of a parent, the Court looks at Section 48 of the Family Law Act, S.A. 2003, c. F-4.5, which sets out that a person is standing in the place of a parent if the person:

• Is the spouse of the mother or father of the child or is or was in a relationship of interdependence of some permanence with the mother or father of the child., and
• Has demonstrated a settled intention to treat the child as the person’s own child.

This section of the Act proceeds to list factors that the Court will consider when determining whether someone has stood in Loco Parentis.  These factors include:

• The child’s age;
• The duration of the child’s relationship with the person;
• The nature of the child’s relationship with the person, including
  1. The child’s perception of the person as a parental figure,
  2. The extent to which the person is involved in the child’s care, discipline, education and recreational activities, and
  3. Any continuing contact or attempts at contact between the person and the child if the person is living separate and apart from the child’s father or mother;
• Whether the person has considered
  1. Applying for guardianship of the child,
  2. Adopting the child, or
  3. Changing the child’s surname to that person’s surname;
• Whether the person has provided direct or indirect financial support for the child;
• The nature of the child’s relationship with any other parent of the child;
• Any other factor that the Court considers relevant,

The Supreme Court of Canada directed in Chartier v Chartier, 19999 CanLII (SCC), [19999] 1 SCR 242:

• The existence of the parental relationship must be determined as of the time the family functioned as a unit;
• Particular attention must be given to the representations of the stepparent, independently of the child’s view of the situation;
• The circumstances of the relationship must be viewed holistically and contextually, from an objective standpoint; relevant factors listed here should not be considered exhaustive; and
• Once formed, the intention to be a parent cannot be qualified or conditional.

Additional factors considered by the Courts include:

• Any expression of parenthood;
• The length of the relationship between the child and the non-parental cohabitant and the child’s perception of the nature of that relationship;
• The nature or existence of the child’s relationship with the absent biological parent;
• Whether the person disciplined the child as a parent and whether the child accepted his right to discipline;
• Whether the person represented the child, the family, the world, either explicitly or implicitly, that he was responsible as a parent to the child;
• Whether playtime and excursions were always, for the majority, a family activity or whether the person and the child spent time alone together in some activities or outings initiated by one or the other;
• Whether the person provided gifts or items in addition to basic needs for the child.

What does this mean?

In most circumstances where parties are married or reside together for more than 3 years, there is a strong possibility that the Court will find that the non-biological parent has stood in loco parentis.

The long list of factors that the Court will consider are not exhaustive, meaning that the Court will consider all of the factors but can use their discretion to place more weight to certain factors than others. This is on a case-by-case basis.

The longer the relationship with the child, both during the relationship with the biological parent and after, is a factor that is given considerable weight by the Courts.  Another factor that is given strong consideration by the Courts is the child’s relationship with the other biological parent as well as their ability or lack thereof to provide financial support for the child.

There are circumstances where the child has a strong relationship with the other parent, but child support is not being paid.  These circumstances would create a strong possibility that the Court would find the parent as standing in loco parentis and that they have an obligation to pay child support.

The child support payable would be pursuant to the Federal Child Support Guidelines and is discretionary based on the financial circumstances of both of the biological parents and the income of the person found to be standing in loco parentis.

The Alberta Court of King’s Bench recently found in CC v JP, 2024 ABKB 573 that a man stood in loco parentis to the mother’s 12-year-old child after only cohabiting with the mother for 5 years.  Factors the Court considered where:

• The parties had a child together and acted as a family;
• The father was the sole provider for the family;
• The father was the only male living with and caring for the child during the “tender years” between 2 and 7 years of age;
• The father paid for the child’s clothes and school supplies post-separation; and
• The child did not know their biological father.

Can I sign a prenup to prevent this?

Child support is the right of the child and is not something that can be contracted out of by the parties.  It is common practice to place wording into Prenuptial Agreements to the effect that the parties will not be found as standing in loco parentis, but these clauses are not determinative and likely not considered by the Court.

If you have questions regarding your personal situation, our team of highly skilled lawyers are available to assist you in your complex matter.