Pittillo v Pittillo, 2012 ABQB 109

Court of Queen ’ s Bench of Alberta Citation: Pittillo v Pittillo, 2012 ABQB 109 Date: 20120221 Docket: 4803 152262 Registry: Edmonton Between: Teresa Pittillo Applicant/Plaintiff - and - Allan Pittillo Respondent/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] These parties were married in October 2004, and ceased cohabitation in December 2008.

The wife gave birth to a daughter in November 1999, and it is submitted that the husband is in loco parentis to that daughter from the time that she was approximately 2 years of age. The daughter is now 12 ½ years of age, and it is argued that the husband should pay child support for that child of $368 each month retroactive to November 2010 plus

Section 7 expenses of $60 per month based on the husband ’ s current annual employment income of $46,000. [ 2 ] The husband denies that he was ever in loco parentis to the child, having just had incidental contact and a non-custodial relationship with the child. However these parties first met in August 2001 when the child was less than 2 years of age when they began

a long distance dating relationship. The husband would stay overnight with the mother and the child beginning in February 2002 quiteoften. In the summer of 2002 it appears that the parties after dating for approximately a year decided to live together in an apartment paidfor by the husband at which time it appears that the husband became the main financial support to both the mother and to child.

Shortlyafter the child’s third birthday in November 2002 the child started to call the husband “Daddy”, and the husband apparently responded“Big Daddy” to be exact. [3] During the four year marriage the husband acknowledges taking the child to school regularly, and to swimming and otherlessons as well as attending her teacher meetings and making sure that she did her homework. The husband even began an adoptionprocess to become the child’s legal father, however that process never concluded because the husband’s mother became very ill inScotland and he had to go there to take care of her.

The adoption process apparently came to a halt both because of finances, and becausethe husband’s criminal record check had expired during the time he went to Scotland. During the time these parties were married, thehusband Retired and appears to have become a stay at home father to the child. The father apparently collected the Child Tax Credit. [4] Even when the relationship between the parties worsened, it appears that the husband’s relationship to the child remainedrelatively unchanged.

The child continues after the separation to make regular visits, usually every second weekend and sometimes moreoften, and apparently the husband became upset when he believed that the wife was keeping “his daughter” from him. The motherdeposes that the husband continues to refer to himself as the “Dad” and always signs the child’s birthday cards “Love Daddy” or “LoveBig Daddy”. [5] Even if the husband was in loco parentis for the child, he objects having to pay any child support because he was onlymarried for four years during which time he was Retired, and the mother was working during the time of the marriage.

The husbandobjects to the fact that the biological father of the child has an obligation to this child and has never been pursued for any child supportby the wife, even though he may be working in a Mill, and also may be a plumber. [6] The Applicant mother indicated that she never pursued the father for child support because she did not want to have anythingto do with the father because of his bad influence, unsavory character, and criminal background. Furthermore she had very little to dowith the father to begin with, and essentially lost all contact and knowledge of the father’s recent whereabouts.

In the wife’s Affidavit itappears doubtful that the biological father has ever actively pursued a regular line of employment for any period of time, so that thehusband’s submission that the biological father makes approximately $60,000 a year as a plumber equating to child support payments of$500 a month, is probably academic in any event. In Loco Parentis [7] Since these parties were married, the Divorce Act, R.S.C. 1985 c.3 applies, and for purposes of corollary relief, “child of themarriage” is defined as follows:– 2(2)(

b) any child of whom one is the parent and for whom the other stands in the place of a parent. [8] I conclude in this case that the common law relating to loco parentis is engaged. [9] In Chartier v Chartier (SCC), [1999] 1 S.C.R. 242 defines the test being in loco parentis as follows atparagraph 39:– 39 Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewedobjectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions ofintent.

The focus on voluntariness and intention in Carignan was dependent on the common law approach discussed earlier. It waswrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intentionwill not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressedintentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parenttreats the child as a member of his or her family, i.e., a child of the marriage.

The relevant factors in defining the parental relationshipinclude, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whetherthe person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whetherthe person represents to the child, 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 child's relationship with the absent biological parent. The manifestation of the intention of thestep-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifestedexpressly. Once it is shown that the child is to be considered, in fact, a "child of the marriage", the obligations of the step-parent towardshim or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. Thestep-parent, at this point, does not only incur obligations.

He or she also acquires certain rights, such as the right to apply eventually forcustody or access under s. 16(1) of the Divorce Act. [10] Under the Divorce Act, a person in loco parentis to a child has all the same responsibilities to that child as he or she does to abiological or adopted child, although

Section 5 of the Child Support Guidelines indicates that “Where the spouse against whom a childsupport order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, suchamount as the court considers appropriate, having regard to these Guidelines and any other parent's legal duty to support the child”. [11] Given the lengthy term of approximately 10 years that the husband has been in a relationship with this child of tender years, Ihave determined that the husband is in loco parentis of the child in this case.

As for the quantum and duration of child support I doaccept that the Guidelines provide the Court with some discretion in determining what the step-parent’s obligations are, although theGuidelines do not provide assistance in how to determine how to fairly disapportion the financial obligations with respect to the amountof support owing between the “parents”. [12] My colleague Marceau J in Vongrad v Vongrad, 2005 ABQB 52 looked at some of the various approaches of the Courts inthis regard as follows at paragraphs 21 through 35:– 21 In attempting to fairly apportion the amount of support owing between parents, some courts have ordered time-limited support forstep-fathers, gradually placing the cost of fully supporting the child back onto the biological parents (see for example: Irwin v.

Irwin(1997) 46 O.T.C. 382 (Ont. Gen. Div.); Bell v. Michie (1998), (ON SC), 54 O.T.C. 10, 38 R.F.L. (4th) 199 (Ont.Gen. Div.); Elliott v. Elliott (2001), 15 R.F.L. (5th) 354, 2001 BCSC 472). 22 Not all courts agree with the time limited approach (Bevand v. Bevand (1997), 30 O.T.C. 117 (Ont. Gen. Div.)). I specificallydisagree with the cases where the Court has granted time limited support simply because the "needs" of the child are not time limited. 23 In MacArthur v. Demers (1998), (ON SC), 166 D.L.R. (4th) 172 (Ont. Gen.

Div.), Aston J. discussed variousmethods of apportioning support between the step-father and the biological father and stated: The Divorce Act is silent on how to apportion child care needs or costs between the biological parent and a spouse who stands in locoparentis to a child. The court is only specifically directed to have regard to two considerations: the Guideline amount and any otherparent's legal duty to support the child ....

The "legal duty" of another parent in any case will be established by the obligation under a subsisting order, separation agreement orpaternity agreement or by a determination, even notionally, of the guideline amount .... (at 180). Aston J. proposed a step-by-step approach to structure the exercise of judicial discretion under s. 5 where the step-parent's guidelineamount is calculated, which involves a consideration of the table amount, s. 7 add-ons, and any undue hardship claims.

The legal duty ofnon-custodial parents to support the child are then calculated (the custodial parent is assumed to meet their contribution by sharing theirhousehold standard of living with the child). Next, the Court must consider whether it is appropriate to reduce the step-parent'sobligation, which includes a consideration of the obligations of other non-custodial parents.

Once the non-custodial parent shows thatanother non-custodial parent has a legal duty to support the child the onus shifts to the custodial parent to demonstrate why the obligationshould not be reduced by the other non-custodial parent's obligation, which may be done by showing that the obligation of the othernon-custodial parent is unenforceable or that such a reduction is inconsistent with the objects set out in s. 1 of the Guidelines (at182-183). 24 In Adler v.

Jonas (1999), (BC SC), 48 R.F.L. (4th) 218 (B.C.S.C.), the custodial biological father was seekingsupport from the child's biological mother and step-father. Hardinge J. held that courts must first determine the appropriate amount

specified by the Guidelines for that parent's level of income and that would be the upper limit of that parent's liability. Courts should thendetermine the legal duty of "any other parent", including the custodial parent's duty. The Court should determine whether the combinedactual and notional contributions of the biological parents achieves a fair standard of support for the child. If they do, the step-parent maynot be required to pay. If they do not, the step-parent may be required to "top-up" the biological parents' contribution so the childreceives a fair standard of support.

Hardinge J. suggested that one way (not the only way) to determine a fair standard would be todetermine what funds would have been available to the child had the biological parents' marriage not broken down. 25 Another alternative is for the step-parent to pay the Guideline amount based on their income minus the amount of contribution fromthe child's other parents. In Symons v. Taylor (2000), (ON SC), 10 R.F.L. (5th) 443 (Sup. Ct. Jus.), the mother had 3children when she married the step-father. The oldest child left home, then the mother died and the younger children remained with thestep-father.

Difficulties developed and the step-father asked the children to live with their biological father. The step-father was orderedto pay the difference between the table amount for his income and the biological father's notional contribution. In Dutrisac v. Ulm(2000), 187 D.L.R. (4th) 461, 2000 BCCA 334, the British Columbia Court of Appeal determined what the step-father's Guidelinecontribution would be and deducted the biological non-custodial parent's obligation from that amount. However, in MacArthur v.Demers (1998), (ON SC), 166 D.L.R. (4th) 172 (Ont. Gen.

Div.), Aston J. discussed this approach and stated: Two immediately obvious problems with that approach are, first, that there is no evidence that the obligation of [the biological father] isenforceable and, second, such an approach does not take into account the reasonable financial needs for raising the child, keeping inmind that the child's standard of living has been based upon the combined income of the [mother] and the [step-father] (at 180-181). 26 In Squires v.

Severs, 2000 BCSC 853, Drost J. used the step-father's Guideline income amount, doubled that to determine the costof supporting the children, and divided that by the number of children. He then subtracted the mother's contribution from the Child TaxBenefit and the biological father and the step-father was ordered to pay the deficit. Drost J. stated that determining the step-parent'scontribution should not be approached in "a formulaic manner" since the Guidelines provide the Court with discretion to order anappropriate amount.

Drost J. proposed a "structured" to determine contribution of step-parents pursuant to s. 5: (1) determining the amount required to provide the children with a fair standard of support; (2) ascertaining to what extent [the step-child's] needs are met by the financial support provided by her biological father; and (3) recognizing that under the Guidelines (apart from a claim for special expenses) the maximum amount of support that therespondent can be required to pay is [the Guideline amount], determine the amount he should pay for the support of his [biological]children and the amount, if any, required to "top up" what is already provided for [the step-child's] support (at paras. 44-45). 27 In Elliott v.

Elliott (2001), 15 R.F.L. (5th) 354, 2001 BCSC 472, Hutchinson J. stated that the discretion in s. 5 to award less thanthe Guideline figures should be exercised with the objectives of the Guidelines in mind, particularly those set out in s. 1: I conclude that the correct approach in this case is to examine the legal duty of both natural parents; determine a fair standard of supportfor this child based on his needs: consider the standard of living he experienced before, during and after the marriage; take into accounthis involvement with the defendant at the time of Lander J.'s order and now; and consider the means and ability of the defendant to paypursuant to the guidelines (at para. 22). 28 This court recently took a needs-based approach to determining the amount a step-parent is obligated to contribute.

In Janes v.Janes (1999), 245 A.R. 315, 1999 ABQB 408, Veit J. stated: Parliament has not established any sort of ranking among all parents of a child for purposes of determining how much each parent shouldpay for child support;

section 5 of the Guidelines does not provide a statutory formula. In particular, s. 5 does not say either thatbiological parents have the primary obligation to support their children or that a step-parent is only responsible for child support for thenumber of months equivalent to the number of months that the step-parent lived with the child. Parliament requires the courts todetermine what "is appropriate" in each particular case.

It seems clear, therefore, that the court must look at all the circumstances of each case to determine how much support a step-parent mustpay: Prieur. The over-riding principle in assessing these circumstances is: do what is in the best interests of the child (at paras. 16-17). 29 In McKeith v. Goodenough, 2003 ABQB 765, Veit J. held that a step-father who lived with the child for most of her life was notrequired to pay support since there was no evidence that further support from the step-father was necessary for the child's welfare.

Thechild's biological father paid child support throughout, which was supplemented by general financial support from the step-father and thechild was living with her biological father at the time of the application. Veit J. held that "there could be situations where this latter,supplemental, type of support would be necessary to the welfare of a child. However, in this case, there is no such evidence orsubmission" (at para. 2). 30 Similarly, in Delargy v. Ciolfi, [1999] B.C.J.

No. 1335 (S.C.), Master Horn held that the step-father was not obligated to paysupport for his step-children since the mother received adequate support from the children's biological father. Master Horn stated if thestep-father was obligated to support the step-children his ability to support his biological children would have been adversely affected.Master Horn stated "before I may make an order for child support against a step parent I must be satisfied by the applicant that theexisting support she is receiving is inadequate and that nothing further can be expected from the natural father (see Forbes v.

Forbes(1994) (SK KB), 2 R.F.L. (4th) 121; Beatty v. Beatty (1997) (BC CA), 33 B.C.L.R. (3d) 247(B.C.C.A.)" (at para. 14). Analysis 31 If a person stands in the place of a parent, whether the child's biological parents are both involved in his life or not, the status of inloco parentis may arise. The courts look at the intention of the step-parent and the child as well as other factors which indicate arelationship of dependency has been created.

The biological parents and persons in loco parentis all owe a duty to provide a fair standardof support for the child and the biological parents are presumed to pay the table amount.

Section 5 of the Guidelines provides discretionto the Courts in determining how much support a step-parent owes. This partly explains the inconsistency in methods of apportionmentacross the country as each relationship is assessed on its own merits to determine whether the facts support a finding of in loco parentisand what the needs of the child are. 32 The Guidelines are helpful in determining what a step-parent may be expected to contribute and they provide for the maximumamount a step-parent may have to contribute towards the child.

However, the Guidelines must be examined in the context of the entiresituation of the parties and the child's standard of living while with the biological parents and with the step-parent must be considered. Ifthe amount the child's biological parents can provide is sufficient to maintain a fair standard of support then the step-parent may not haveto provide support for the child.

However, if the step-parent increased the child's standard of living from that which the child previouslyexperienced, the step-parent cannot simply walk away and return the child to a lower standard of living. 33 The welfare of the child is the primary concern and the step-parent may be required to put the child back in the position he wouldhave been in had the relationship not broken down. This obligation is fair since the adult chose to take on the role of becoming astep-parent and this may impose an obligation to provide a fair standard of support.

A child should not, however, benefit from the breakdown of the relationship in the sense that the child should not receive more than he would have had when living in the relationship inwhich he experienced the highest standard of living. If there is no need on behalf of the child and he already receives a fair standard ofsupport from his biological parents then the step-parent should not be obligated to pay support.

I see no rationale for making astep-parent pay child support regardless of the child's situation. 34 Examining the context of the entire situation in this case the biological father who earns $90,696 per year is asking for supportfrom a step-father who earns $51,437 per year. Although the biological father has 3 other children, he also has a partner who earns$34,618 per year. The step-father is the sole income earner in his household and solely provides for Kurt. I ignore the obligation ofDayna to pay each of Lorne and Keith $50 per month since it is equal.

In this situation, to take from Kurt's household to give to Daniel'shousehold would lower Kurt's standard of living and take from the family unit which has less in order to increase Daniel's standard ofliving and give to the family unit that already has more.

It offends my sense of fairness to increase the relatively high standard of livingof Daniel's household at the expense of the standard of living in Kurt's household which is already less than that of Daniel's household.On these facts, need has not been demonstrated. 35 Of course, it follows from my having employed a needs of the child approach if Daniel's needs change, for instance if Daniel lostthe support of Lorne and his needs were not being met by his biological parents, Keith might be ordered to provide for the needs of

Daniel. Conclusion [ 13 ] During the four year marriage, the husband ’ s Guideline income was approximately $14,000 as reflected in his 2008 Income Tax Return. The husband has been a labourer during his entire working life and he is currently 66 years of age. During the four years of the marriage when he was essentially Retired, his income consisted of a Union Pension, Canada Pension Plan Benefits, and his personal savings. Upon entering the marriage the husband owned a modest home, and his expenses were minimal.

However during the course of his marriage with the Applicant he was convinced to invest his savings and inheritance first into her Ink Business and then into a new home. Upon the separation of the parties, the new home became completely unaffordable and as such he lost his residence, his savings, and his inheritance. Due to his depleted financial resources following the marriage breakdown, the husband has returned to the labour force currently working in the construction field again.

Given his age and the difficulties he experiences however with the physical demands of his work, it is unlikely that he will be able to maintain his employment for any significant period of time. As such the husband ’ s current annual income of $46,000 is likely unsustainable for the long term given the husband ’ s current age of 66, his health, and the type of construction labour employment that he is engaged in. [ 14 ] The husband argues that the biological father has a financial obligation to this child and has never paid any child support.

The husband argues that since the biological father may be working in a Mill and is also a plumber, that the Applicant ’ s decision not to pursue the biological father for child support diminishes his obligation to pay, particularly given that the biological father would be making an average of $31 an hour or an annual income of $60,000 which equates to child support payments of $500 a month if the Alberta Occupational Profiles is followed.

It is submitted by the husband that given the fact that the mother is now a realtor, and the biological father a plumber, the daughter can be supported by them without the husband ’ s financial assistance and as such he should have no obligation to pay. [ 15 ] I reject this submission in that while the circumstances that the husband finds himself can be taken into account in setting child support payments, the lack of pursuit of the biological father by the mother is for good reason in this case.

The wife has long lost contact with the biological father, and has no means of ascertaining his whereabouts, plus the fact that the biological father appears to have been involved in a very short relationship with the Applicant and is of unsavoury character, essentially means that the biological father ’ s obligation to this child are irrelevant. [ 16 ] I do accept however that the husband in this case is only expected to contribute to the extent of the standard of living that the child experienced while living with him, during which time he had an income of $14,000 and was Retired.

I will impose child support obligations on the husband on the basis of his retired income which corresponds to a monthly Guideline income payment of $137 a month. [ 17 ] The husband submits that there should be time-limited temporary payments herein given that the he will be well in his 70's should the child enter post-secondary studies.

I conclude that there is no need for temporary time-limited payments in this case going forward as it is not manifestly unfair for the husband to continue his Guideline payments of $137 a month into his 70's should the child enter post-secondary studies. [ 18 ] Costs are awarded to the Applicant mother in this case, and payments will begin retroactively at the rate of $137 a month to November 1st, 2010 when this matter was first pursued by the Applicant. Heard on the 1 st day of February, 2012.

Dated at the City of Edmonton, Alberta this 21 st day of February, 2012. Donald Lee J.C.Q.B.A. Appearances: Rod Tkachuk Tkachuk Patterson for the Plaintiff Christopher Btaluk Iginla & Company for the Defendant