V.A.+c.+S.F.

Quebec Court of Appeal.

-** Woman, SF, marries man, VA, in 1997. Woman already has a 6-year-old son (whose father is unknown to him). - Two years later, they divorce. - Woman asks man to pay child support of $4K per month.
 * Facts:

- s.15.1(8) //Divorce Act// requires a consensual arrangement between spouses on child support for **"children of the marriage"**. One party cannot unilateraly withdraw from a relationship in which he stands in the place of a parent in order to avoid paying child support. - A **"child of the marriage"** (s.2(2)(b) of //D.A.//) is defined as: "any child of whom one [spouse or former spouse] is the parent and for whom the other **stands in the place of a parent**." [Standing in the place of a parent is called //in loco parentis//.]
 * Legislation:**


 * Trial court**: Finds that man was //in loco parentis// to the child and thus should pay child support.

Did the man act sufficiently like a parent to the son, so as to have to pay child support?
 * Issue:**
 * Held:** No, the man did not act //in loco parentis// to the child and should not pay child support. Appeal accepted.


 * Ratio: //In loco parentis// should be read narrowly in Quebec. Only if the proof is** **clear, non-equivocal and unambiguous that the step-parent acted //in loco parentis// should he/she have to pay child support.**

- Child support is in provincial competence. The CCQ never mentions "//in loco parentis"//. - Divorce is a matter of federal competence. The federal govt can only control child support insomuch as it has to do with divorce. //In loco parentis// should be an **exceptional** addition to provincial family law on child support, and **should be read narrowly, to apply only to exceptional circumstances.** (- This is not contradicting //Chartier v. Chartier// which applied to a CML province.) - It is in analyzing the proof and context that we apply the rule narrowly. **To prove //in loco parentis//, the proof must be clear, non-equivocal and unambiguous.**The evidence here is contradictory. The man was able to refute or qualify most of the evidence showing he acted as a father to the child. - The trial judge mentions a list of factors that make VA seem dad-like towards the child (ex: He went to parent-teacher meetings, he bought the kid birthday presents). Brossard J. finds none of the items in the list conclusive, and doesn't find them conclusive taken all together either. - Each element of the list, argues Brossard J., is just as compatible with another explanation: **VA wanted to please his wife and establish a good family relationship**, which is a natural attitude for someone who is married. **Being friends with your spouse's kid does not mean you intend to act //in loco parentis//.** - There are some factors that show VA as acting quite unparent-like: the son many times spoke harshly of VA's actions during the divorce. This is not like filial affection for a father. And VA spoke about "that fucking son of yours" to SF, which is not father-like talk. - The facts of //Chartier// are quite different from here (ie: there, the step-father talked about adopting the kid, modified the kid's acted of birth to include himself, and paid child support the first time he separated from his wife). - Which of the factors in this case could VA have avoided, without insulting his wife? The wife's lawyer argues VA shouldn't have let the son call him "Dad". This would mean that the child would have to advertise to the world that he didn't have a known father. - Quote from //Chartier// citing Huband J.: Some husbands are generous to their wife's children with the eye to pleasing the wife. The child is being used as a pawn to the husband's egocentric desires. Then, when things turn sour, he leaves and abandons the child. This is traumatising: the child is rejected, has a negative view of self, and has lost financial support. And there is no juridical recourse against the father. This type of egotistical generosity from step-parents should be avoided. - Brossard J. thinks VA was simply being generous, and disagrees that this generosity should be discouraged. - Would the best solution in Quebec be to never get married, and just live as a de facto spouse without the risk of being found //in loco parentis?// What if the woman marries again: will there be two //in loco parentis?// Could VA substitute himself for the child in an action for child support against the natural father? - The proof at hand is ambiguous. As such, VA should not have to pay child support to the son.
 * Reasoning (Brossard J.):**
 * - The trial judge read the //in loco parentis// rule too broadly and liberally. She would want __every__ person who married someone with a child to pay child support after divorce. She would like the maxim, "Qui prend femme, prend enfant."**

- //Chartier v. Chartier// does __not__ stand for the expression "no good deed goes unpunished" (ie: kindness and generosity to a spouse's children lead to self-imposed, unilateral and permanent child support after divorce). - //Chartier// stands rather to **palliate the economic effects of divorce on children of the marriage**. It is a **policy choice** by the federal govt. - "stands in the place of a parent" is within provincial, not federal, capacity to define. A judge must consider whether the spouse has assumed obligations and exercised parental authority, as defined in the CCQ. - The defining elements of a parent-child rlationship are, according to Fish J.A., significant involvement in care, maintenance and education of the child. This must be established by evidence. - The trial judge found that VA 'stood in the place of parent'. Since there are here no errors of law or determinant errors of fact, Fish J.A. would defer to her judgment.
 * Dissent (Fish J.A.):**