Chartier v. Chartier (1999), 134 Man.R.(2d) 19 (SCC);
193 W.A.C. 19
MLB Headnote and full text
French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [1999] Man.R.(2d) TBEd. JA.050
Sharon Leslie Chartier (appellant) v. Gerald Leo Joseph Chartier (respondent)
(26456)
Indexed As: Chartier v. Chartier
Supreme Court of Canada
L’Heureux-Dubé, Gonthier, McLachlin,
Iacobucci, Major, Bastarache
and Binnie, JJ.
January 28, 1999.
Summary:
A wife applied under the Divorce Act for, inter alia, support for her child born prior to the marriage.
The Manitoba Court of Queen’s Bench, Family Division, in a judgment reported 111 Man.R.(2d) 27, held that the husband was not obligated to pay support for the child where he had repudiated his in loco parentis relationship. The wife appealed.
The Manitoba Court of Appeal, in a judgment reported 118 Man.R.(2d) 152; 149 W.A.C. 152, dismissed the appeal on this issue. The wife brought a motion for leave to appeal to the Supreme Court of Canada.
The Manitoba Court of Appeal, in a decision reported 123 Man.R.(2d) 127; 159 W.A.C. 127, allowed the motion and granted leave to appeal.
The Supreme Court of Canada allowed the appeal, set aside the decision of the Court of Appeal, declared that the husband stood in the place of a parent to the child and remanded the matter to the Queen’ Bench for determination of the quantum of support. The court ordered interim support of $200 per month from the date of its decision.
Family Law – Topic 1661
Adoption – Effect of adoption – General – The Supreme Court of Canada stated that “[s]ome concerns may also be raised with regard to the relevance of adoption proceedings where obligations regarding all ‘children of the marriage’ are identical under the Divorce Act and the Family Maintenance Act. … The simple answer to that is that legal adoption will nevertheless have a significant impact in other areas of the law, most notably trusts and wills; it retains its importance.” – See paragraph 43.
Family Law – Topic 2203
Maintenance of wives and children – General principles – Persons obligated to support children – In loco parentis – The Manitoba Court of Queen’s Bench, Family Division, ordered a father to pay support for a child born of the parties’ relationship, but denied support for his step-child where he had terminated the in loco parentis relationship – The Supreme Court of Canada set aside the decision respecting the step-child – The father’s unilateral withdrawal from the relationship did not change the fact that he had acted, in all ways, as a father during the time that the family had lived together – Therefore, the step-child had been a “child of the marriage” when the parties separated and later divorced and all of the corresponding rights and responsibilities under the Divorce Act applied – With respect to support, the child was to be treated the same as the child born of the relationship.
Family Law – Topic 2203
Maintenance of wives and children – General principles – Persons obligated to support children – In loco parentis – The Supreme Court of Canada stated that “… the words ‘in the place of a parent’ [Divorce Act, s. 2(2)(b)] must be given a meaning that is independent of the common law concept and reflective of the purposive and contextual approach to statutory interpretation advocated by this Court. Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult. The interpretation of the provisions of the Divorce Act relating to ‘child[ren] of the marriage’ should be ‘given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects’ … The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.” – See paragraph 32.
Family Law – Topic 2203
Maintenance of wives and children – General principles – Persons obligated to support children – In loco parentis – The Supreme Court of Canada stated that whether a person stands in the place of a parent must take into account all relevant factors viewed objectively – The nature of the relationship must be determined by considering a number of factors, including expressed or inferred intention – Expressed intentions may change – The formation of a new family is key to inferring that the step-parent treats the child as a family member i.e., a child of the marriage – Relevant factors in defining the relationship includes family participation, financial support, discipline, the step-parent’s representations and the child’s relationship with the biological parent – The manifestation of the step-parent’s intention cannot be qualified as to duration or be otherwise made conditional or qualified – Once it is shown that the child is a “child of the marriage”, the step-parent’s obligations under the Divorce Act are the same as those owed to a child born of the marriage – The step-parent also acquires rights such as entitlement to apply for custody or access – See paragraph 39.
Family Law – Topic 2203
Maintenance of wives and children – General principles – Persons obligated to support children – In loco parentis – The Supreme Court of Canada stated that “… not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts and it must be established from the evidence that the adult acted so as to stand in the place of a parent to the child.” – See paragraph 40.
Family Law – Topic 2203
Maintenance of wives and children – General principles – Persons obligated to support children – In loco parentis – The Supreme Court of Canada stated that the opinion of the child regarding the relationship with a step-parent was an important consideration in determining whether the step-parent stood in the place of a parent under the Divorce Act – However, the child’s opinion constituted only one of many factors to be considered – In particular, attention had to be given to the representations of the step-parent, independently of the child’s response – See paragraph 38.
Family Law – Topic 2203
Maintenance of wives and children – General principles – Persons obligated to support children – In loco parentis – The Supreme Court of Canada stated that it was not a concern that a child might collect from both a biological and a step-parent and “[t]he contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. The obligation to support a child arises as soon as that child is determined to be ‘a child of the marriage’. The obligations of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations towards the child, whether they are biological parents or step-parents; it should not affect the child. If a parent seeks contribution from another parent, he or she must, in the meantime, pay support for the child regardless of the obligations of the other parent.” – See paragraph 42.
Family Law – Topic 4006.2
Divorce – Corollary relief – Maintenance awards – To children – Parent’s obligation – [See sixth
Family Law – Topic 2203
].
Family Law – Topic 4014
Divorce – Corollary relief – Maintenance awards – To children and children defined – [See all
Family Law – Topic 2203
].
Family Law – Topic 4014
Divorce – Corollary relief – Maintenance awards – To children and children defined – Section 2(2)(b) of the Divorce Act provided that “[f]or the purposes of the definition ‘child of the marriage’ in subsection (1), a child of two spouses or former spouses include … any child of whom one is the parent and for whom the other stands in the place of a parent.” – The Supreme Court of Canada stated that the existence of the parental relationship under s. 2(2)(b)
must be determined as of the time the family functioned as a unit – See paragraph 36.
Family Law – Topic 4014
Divorce – Corollary relief – Maintenance awards – To children and children defined – Section 2(1) of the Divorce Act defined “child of the marriage” as “… a child of two spouses or former spouses who, at the material time, (a) is under the age of sixteen years, or (b) is sixteen years of age or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life” – The Supreme Court of Canada stated that “[t]he breakdown of the parent/child relationship after separation is not a relevant factor in determining whether or not a person stands in the place of a parent for the purposes of the Divorce Act. … The ‘material time’ factor does not affect the determination of the parental relationship. It simply applies to the age considerations that are a precondition to the determination of need.” – See paragraph 37.
Family Law – Topic 4014
Divorce – Corollary relief – Maintenance awards – To children and children defined – The Supreme Court of Canada stated that “[o]nce it is determined that a child is a ‘child of the marriage’ within the meaning of the Divorce Act, he or she must be treated as if born of the marriage. … Even if a relationship has broken down after a separation or divorce, the obligation of a person who stands in the place of a parent to support a child remains the same. Natural parents, even if they lose contact with their children, must continue to pay child support.” – See paragraphs 44, 45.
Family Law – Topic 4024
Divorce – Corollary relief – Maintenance awards – To step-children – [See all
Family Law – Topic 2203
and second, third and fourth
Family Law – Topic 4014
].
Cases Noticed:
Carignan v. Carignan (1989), 61 Man.R.(2d) 66 (C.A.), disapprvd. [para. 8].
Theriault v. Theriault (1994), 149 A.R. 210; 63 W.A.C. 210 (C.A.), apprvd. [para. 17].
Rizzo v. Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 19].
R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241, refd to. [para. 19].
Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; 208 N.R. 161; 193 A.R. 321; 135 W.A.C. 321, refd to. [para. 19].
Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; 203 N.R. 60; 94 O.A.C. 211, refd to. [para. 19].
Friesen v. Minister of National Revenue, [1995] 3 S.C.R. 103; 186 N.R. 243, refd to. [para. 19].
Laraque v. Allooloo (1992), 44 R.F.L.(3d) 10 (N.W.T.S.C.), refd to. [para. 23].
Siddall v. Siddall (1994), 11 R.F.L.(4th) 325 (Ont. Gen. Div.), agreed with [para. 24].
Andrews v. Andrews (1992), 97 Sask.R. 213; 12 W.A.C. 213 (C.A.), refd to. [para. 24].
Eschak v. Biron, [1993] N.W.T.R. 255 (S.C.), refd to. [para. 24].
Delorme v. Delorme (1993), 45 R.F.L.(3d) 373 (Ont. Gen. Div.), refd to. [para. 24].
Bradbury v. Mundell (1993), 13 O.R.(3d) 269 (Gen. Div.), refd to. [para. 24].
L.H. v. L.H., [1971] 4 W.W.R. 262 (B.C.C.A.), refd to. [para. 33].
Harrington v. Harrington (1981), 33 O.R.(2d) 150 (C.A.), refd to. [para. 33].
Miller v. Miller (1988), 13 R.F.L.(3d) 80 (Ont. H.C.), refd to. [para. 35].
R.S. v. L.R.P., [1991] R.J.Q. 2822; 42 Q.A.C. 231 (C.A.), refd to. [para. 44].
Droit de la famille – 1369 – see R.S. v. L.R.P.
Statutes Noticed:
Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 2(1), sect. 2(2) [para. 7].
Authors and Works Noticed:
Diduck, Alison, Carignan v. Carignan: When is a Father not a Father? Another Historical Perspective (1990), 19 Man. L.J. 580, pp. 601, 602 [para. 18].
Farquhar, Keith B., Termination of the In Loco Parentis Obligation of Child Support (1990), 9 Can. J. Fam. L. 99, generally [para. 30].
McLeod, James G., Annotation on Primeau v. Primeau (1986), 2 R.F.L.(3d) 113 [para. 42].
Payne, Julien D., Divorce (4th Ed. 1996), p. 148 [para. 36].
Counsel:
Carla B. Paul, for the appellant;
No one appearing for the respondent.
Solicitors of Record:
Paul & Boonov, Winnipeg, Manitoba, for the appellant.
This appeal was heard on November 12, 1998, before L’Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.
On January 28, 1999, Bastarache, J., delivered the following judgment for the court in both official languages.
