September 22, 2023 | Family patrimony / assets

What is in loco parentis?

Step-parenting and blended families are common in today’s society. However, in Quebec civil law, the notion of in loco parentis is not yet recognized in the applicable family law legislation. In loco parentis, a Latin phrase meaning “in the place of a parent,” denotes a circumstance in which an individual undertakes the role, responsibilities, and obligations of a parent, despite not being the child’s biological parent.

In the case of a separation or divorce, the parent acting in loco parentis could assume financial obligations toward the child, such as child support, as if they were their biological child (s. 2(2) of the Divorce Act). However, there are certain factors that can be examined to determine whether “in loco parentis” applies. The Supreme Court of Canada outlined the criteria to establish a relationship in loco parentis in its ruling in Chartier c. Chartier[1]. Firstly, there needs to be a clear and unequivocal intention to act as the child’s parent and to form a new family. For example, the parent might take care of the child when they are sick or accompany them to doctor and dentist appointments. The Court can thereby decide to grant parental authority and decision-making responsibilities to this parent.

Before the reform in March of 2021, there were additional provisions in place. The Divorce Act being the basis of the notion at the time, only married couples were recognized for the purposes of in loco parentis and therefore, it did not apply to common law partnerships. Therefore, a step-parent who did not marry one of the biological parents and instead remained their partner, would not be able to invoke the notion of in loco parentis. Additionally, in loco parentis was not applied unless one of the child’s biological parents was completely absent from the child’s life with no intention of returning. Therefore, the step-parent could only occupy the position of “new parent” if this position was, for all intents and purposes, vacant. The two most common situations at the time were when one of the biological parents had either died or abandoned the child.

Following the family law reform in March of 2021, section 16.1, paragraph 1 of the Divorce Act was amended to state that “a court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by either or both spouses; or a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent”. The change brought three (3) main differences to the application of in loco parentis. Firstly, as stipulated in the aforementioned section 16.1, it is no longer required for the partner to be married for the rules to apply. The “or a person, other than a spouse” indicates it is not always the step-parent who will benefit from the in loco parentis rule. Moreover, the addition of the section “or intends to stand in the place of a parent” represents a noteworthy modification compared to the previous version, which exclusively considered past actions or circumstances. Therefore, the rule may apply if the step-parent expresses that they intend to assume parental authority over the child; if the court is convinced, the in loco parentis rule would apply.

It is important to note and to always remember the courts only consider the best interest of the child(ren) when analyzing these types of situations. As such, the in loco parentis rule may be applicable but the court must be convinced that the relationship with the parental figure is in the best interest of the child(ren) in order to render a judgment granting parental authority.

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In the above example, let us say that the “Mother 1” and “Mother 2” divorced very early in the child’s life and “Mx” became the step-parent of the child for multiple years. Upon the separation between the “Mother 2” and “Mother 3”, the latter would be granted parenting time of the child. Therefore, the “New common law partner” would also be able to invoke the notion of in loco parentis. Since the “New common law partner” will evidently be very present in the child’s life due to the status of “Mother 3,” they can demonstrate to the court that they have the intention of acting as a parent. If the court deems it to be in the best interest of the child, the relationships between the child and these four parental figures can be maintained and promoted.