VAP v RP, 2022 ABKB 749

Court of King’s Bench of Alberta Citation: VAP v RP, 2022 ABKB 749 Date: 20221114 Docket: 4801 180581 Registry: Calgary Between: VAP Applicant - and - RP Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice O.P. Malik _______________________________________________________ [ 1 ] VAP seeks a declaration that RP stands in the place of a parent for a child pursuant to section 2(2) (

a) of the Divorce Act , RSC 1985, c 3 (2 nd Supp ) (the “ Act ”). [ 2 ] This matter was heard before me in a one-day hearing pursuant to a Consent Procedural Order which I granted on August 31, 2022. Each of the parties’ evidence comprised of their filed Affidavit evidence in addition to limited cross-examination. I. The Facts [ 3 ] VAP and RP were married in October 2000 (VAP and RP are collectively referred to as “the Ps”). They are the biological parents of two children. In 2002, RP formally adopted A, VAP’s son from a previous relationship. The Ps separated in August 2018. i.

R [ 4 ] On April 22, 2016, A and his then-girlfriend Alysha gave birth to their son, R. As I understand it, R has a development speech delay. By the time he was two years old, he used sign language to communicate although he was capable of limited verbal communication. [ 5 ] During Alysha’s pregnancy, the Ps became concerned about A and Alysha’s ability to care for R due to their lack of financial security, stability, and mental health. The Ps knew that Alysha had previously been involved with Child and Family Services in

B.C. and had lost custody of her previous child. [ 6 ] The Ps suspected that neither A nor Alysha could care for R. For example, RP testified that the state of A and Alysha’s apartment (prior to R being apprehended by Child and Family Services) was “disgusting” and “filthy” and recalls being told by a Child and Family Services worker that it was “unfit” for R. [ 7 ] The Ps’ concerns were confirmed when Child and Family Services commenced an investigation into R when he was just 4 days old. [ 8 ] On March 3, 2017, the Ps learnt that Child and Family Services intended to apprehend R.

They were advised that they could avoid having R placed into foster care if they agreed to assume R’s day-to-day care upon his removal from A and Alysha’s custody. ii. The Ps Apply For Guardianship and Parenting Of R [ 9 ] On March 7, 2017, the Ps filed an application pursuant to the Family Law Act for guardianship of R. [ 10 ] The Ps disagree about their intentions in seeking the guardianship order. [ 11 ] RP deposes that his agreement to seek the guardianship was made on a “rush” basis and that he had not turned his mind to the implications. He believed the guardianship order would be a temporary arrangement.

He was “hopeful that [A and Alysha] were going to work on their issues and be able to parent [R] eventually”. He believed that the Ps’ role was to “[assist] [A] and Alysha rather than becoming [R’s] parents”. RP points out that the Statement for Parenting stipulated that the Ps were to share all decisions with A and Alysha rather than to “take over these responsibilities solely” and that while they agreed to “look after [R] with his parents, we did not seek to become his sole guardians”. [ 12 ] RP further deposes that he always assumed A would regain responsibility for R.

Importantly, he states that he viewed his role as a grandfather figure and that had he wanted to become R’s father figure, he would have adopted him as he had previously done with A. [ 13 ] Under cross-examination, VAP testified that in her interaction with Child and Family Services on March 3, 2017, her intention was to assume guardianship over R temporarily prior to reuniting him with A or Alysha. However, by March 7, 2017, she believed that reunification was less likely.

VAP deposes that the reason she and RP applied for guardianship without any interim review was “due to our longstanding concerns and awareness that [R] would likely remain in our care indefinitely”. She further deposes she and RP consulted with their biological children regarding their “mutual intent to assume care of [R] indefinitely and permanently alter our family dynamic and our children’s daily lives”. iii.

The Guardianship and Parenting Orders [ 14 ] The basis articulated in the Ps’ application for guardianship is for the “safety of [R]”. [ 15 ] In their Adult’s Statement – Guardianship of Child, the Ps state “we are able and willing to care for [R]” and that guardianship is in the child’s best interests because “we can look after [R]”. [ 16 ] In their Statement – Parenting, the Ps seek shared parenting of R with A and Alysha “as mutually agreed”.

The Ps’ Statement contemplates that no conditions would be imposed on A and Alysha’s parenting time (clause 5) other than that it be “supervised as mutually agreed” (clause 6); that decision-making regarding R be shared with A and Alysha (clause 7); and that the Ps’ application is in the child’s best interests because “we are able to look after [R]” (clause 8). [ 17 ] On March 7, 2017, a Judge of the Provincial Court granted the Ps a Guardianship Order (the “Guardianship Order”) and a Consent Final Parenting Order (“Parenting Order”), both of which were obtained with A and Alysha’s consent. [ 18 ] The Guardianship Order declares that the Ps are suitable and willing to exercise the powers, responsibilities, and entitlements of guardianship regarding R, and that it is in R’s best interests for the Ps to be appointed guardians.

The Guardianship Order appoints the Ps the guardians of R (clause 2); waives the requirement that the Ps have care and control of R for more than six months (clause 1); and grants the Ps day-to-day parenting of R (clause 3). [ 19 ] The Parenting Order stipulates that R will ordinarily reside with the Ps (clause 1); grants the Ps “sole decision-making authority regarding [R] and including those decisions related to educational, medical, dental and religious upbringing (clause 5); as well as parenting time and responsibility for R, except during A and Alysha’s supervised parenting time (clauses 2-4). iv.

A Moves In With The Ps In March 2017 [ 20 ] Following the granting of the Guardianship and Parenting Orders, A briefly moved in with the Ps in March 2017. There is some disagreement between RP and VAP as to the duration of A’s stay but I find that it was approximately 4-8 weeks (in any event, this is a peripheral detail). [ 21 ] The Ps agree that they hoped moving A back into their home would result in A and R’s reunification. While they agree that this did not ultimately occur, they disagree on A’s level of parental engagement.

RP testified that while at home, A “actively engaged” in parenting tasks although VAP’s recollection was that A was essentially “invisible” and that he only “begrudgingly” participated in a few parenting tasks. [ 22 ] There is insufficient evidence before me that would allow me to conclude that A meaningfully engaged as a parent with R

during his stay with the Ps. I find (and this is consistent with A’s pattern of behaviour towards R generally), that A’s contact with R wasminimal at best and that he did not assume a parental function. v. A Leaves The Ps’ Home In April 2017 [23] A left the Ps’ home in April 2017 and moved to Grande Prairie.

According to VAP, he has “made no attempts to communicateor establish a relationship with [R]” although she acknowledges that A returned approximately 5 times for short visits and that he saw Ron one Father’s Day at a barbeque event hosted by VAP’s parents. [24] There is no evidence that A made any meaningful financial contribution towards R’s upkeep either prior to moving in with thePs, during his stay with them, or after he moved out. vi.

A And Alysha Do Not Reunite with R [25] The Ps agree that neither A or Alysha have made any efforts to reunify with R or assume their parental responsibilities. [26] VAP deposes that during A’s visits to the Ps’ home, he: did not attempt to bond or interact with [R], or present himself as anything other than a family friend.

I recall that [A] would not evenacknowledge [ R’s] presence during some of the visits...[R] did not recognize [A] as his father or even as an acquaintance...but referred tohim as “the guy”. [27] RP agrees with her assessment and deposes that “[A] did not show any effort in bonding with his child”. [28] The Ps agree that neither A nor Alysha have sought a reunification with R or taken any steps towards an assumption of theirparental roles following the granting of the Guardianship and Parenting Orders.

VAP deposes that: we did not seek to reunify [R] with his parents or actively encourage them to have any relationship with him. We did not withhold accessto [R], we simply accepted that neither [A] or Alysha desired to have a relationship with [R] in any capacity. [29] RP agrees, and deposes that despite having already tried, “[A] did not want anything to do with [R]. I believed someday hewould though”. RP testified how he asked for A’s telephone number, but that A changed it whenever RP called. Later, A told VAP not toshare his telephone number with RP. [30] A’s contact with R has also been minimal.

VAP deposes that A has made between 5-10 short visits to the Ps’ home with Aminimally interacting with R. A has not visited or seen R since April 2018. [31] While reunification between R and A or Alysha has not occurred, neither one of the Ps have sought an amendment to theGuardianship or Parenting Orders which granted them sole decision-making over R. These Orders continue to be operative. vii. The Ps Separate In August 2018 [32] The Ps separated in August 2018. RP moved out of the family home.

VAP was not employed at the time of separation. [33] Since their separation, VAP has received monthly uncharacterized post-separation payments from RP. These paymentscontinued until approximately October 2019 when they stopped. [34] RP is adamant that the purpose of these payments was to provide support with whatever VAP needed, rather than as supportspecifically designated for R.

In his Affidavit, he deposes that “[n]one [of these payments] were considered support directly for [R]”;“nor did any of my payments to [VAP] be specifically for [R]”; and that “[N]o payments were made for direct support to [R]”. [35] However, under cross-examination, RP acknowledged that any support paid to VAP would invariably have benefitted R whilehe was still living with her. [36] Following the separation, RP has only seen R a couple of times and only then, coincidentally.

As I understand it, he has notspecifically requested parenting time with R nor has he arranged any parenting visits to see him. [37] VAP testified that RP has not been receptive to her efforts to encourage him to see R although she also acknowledges thatfollowing their separation, arranging parenting time would have been difficult due to RP’s out-of-town work schedule, the state of hisaccommodation and that, “due to the contentious nature of our relationship”, “it was not in any of our children’s best interests to have[RP] attend my residence to spend time with [R] or to conduct parenting exchanges”. II.

The Law Regarding in loco parentis [38] Section 2(2)(

a) of the Act, provides that: For the purpose of the definition of “child of the marriage” in subsection (1), a child of two spouses or former spouses includes (

a) Any child for whom they both stand in the place of parents... [39] In Chartier v Chartier, (SCC), 1999 1 SCR 242, the Supreme Court of Canada addressed the test to be

applied for determining whether a person stands in the place of a parent. [40] The Court rejected the common law approach to the doctrine of loco parentis which had historically “developed in diversecontexts, trust law, tort law, master-apprentice relationships, schoolmaster-pupil relationships, will and gifts..., at another time” (para 18)and which, in its application to the family law context, was “not helpful in determining the scope of the words “in the place of a parent”in the [Act]” (para 20). [41] The Court expressly rejected the line of common-law authority culminating in Carignan v Carignan, (MBCA), 1989, 61 Man R (2d) 66, which held that a spouse who stood in the place of a parent could unilaterally withdraw from that status atany time. [42] In Chartier, the Court found that the policies and values of the Act including the meaning of a person who stands in the placeof parents must be given a modern and purposive

interpretation, consonant with contemporary Canadian society and in keeping with theAct’s child-centric focus: The provisions of the [Act] that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses areentitled to divorce each other, but not the children who were part of the marriage. The

interpretation that will best serve children is onethat recognizes that when people act as parents towards them, children can count on that relationship continuing and that these personswill continue to act as parents toward them (para 32). [43] In Chartier, the Court recognized that the test for determining whether a person stands in place of a parent is highly factspecific exercise (para 40).

The Court articulated the following test: Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively.What must be determined is the nature of the relationship. The [Act] makes no mention of formal expressions of intent. The focus onvoluntariness and intention...was wrong. The court must determine the nature of the relationship by looking at a number of factors,among which is intention. Intention will not only be expressed formally.

The court must also infer intention from actions, and take intoconsideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawingan inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage.

The relevant factors indefining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way aswould a biological child; whether the person provides financially for the child (depending on ability to pay); whether the persondisciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he orshe is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent.

Themanifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even ifthis intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a “child of the marriage”, theobligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to theapplication of the [Act]. The step-parent, at this point, does not only incur obligations.

He or she also acquires certain rights...(para 39). [44] The Court identified several specific factors to consider: ● the existence of the parental relationship is determined when the family functioned as a unit (para 36); ● the breakdown of the parent/child relationship after separation is not a relevant factor in determining whether or not a parentalrelationship existed previously (para 37); ● a finding that there is a parental relationship does not exclusively depend on the child’s perspective, particularly where the child isvery young and it would be difficult to determine whether the child viewed the person as a parental figure.

The child’s opinion is one of,but not the determinative, factor to consider (para 38); ● in determining whether a parental relationship existed, the court may consider whether the child is the subject of an adoptionproceeding (para 43). [45] In Chartier, the Court rejected two arguments. [46] First, it rejected the view that affirming the existence of a parental relationship might discourage the formation of relationshipsbetween individuals and their non-biological children lest obligations associated with a parent, such as child support, arise.

At para 41 of its decision, the Court cited the following passage from Siddall v Siddall, (ON SC), 1994, 11 RFL (4th) 325: It is important to examine the motive behind a person’s generosity towards the children of the person they wish to be involved with orare involved with in a relationship. In many cases children are used as pawns by men and, on occasion, women who desire the attentionof the children’s parent and once the relationship between the adults fail, the children are abandoned. This is not to be encouraged.

Ifrequiring men to continue their relationship, financially and emotionally with the children is a discouragement of generosity then,perhaps such generosity should be discouraged. This type of generosity which leaves children feeling rejected and shattered once arelationship between the adults sours is not beneficial to society in general and the children, in particular. After all, it is the court’sobligation to look out for the best interests of the children.

In too many of these situations the ultimate result is that the child is a mereobject used to accommodate a person’s selfish and personal interests as long as the relationship is satisfying and gratifying. As soon asthings sour and become less comfortable, the person can leave, abandoning both the parent and child, without any legal repercussions.. . . It is important to encourage the type of relationship that includes commitment, not superficial generosity.

If relationships are moredifficult for a person to extricate him- or herself from then, perhaps, more children will be spared the trauma of rejection, bruised selfimage and loss of financial support to which they have become accustomed. [47] Second, the Court rejected the view that requiring the person standing in place of the child’s parent to pay child support mightresult in double-payment to the child from the biological parent and the person standing in the place of the child’s parent.

In reply, theCourt noted that the obligations of the biological parent and person standing in place of the child’s parent are joint and several and that

any questions as to how support might be allocated between the various parties is not the child’s issue to resolve (para 42). [ 48 ] In LO v KS , 2022 ABQB 31 , Justice Yungwirth examined the circumstances in which grandparents might be found to stand in the place of a parent. She concluded that in most cases grandparents have a special relationship with a grandchild and that it would be rare for that relationship to “cross the relationship from grandparent to parent” (para 38): A grandparent spends time with their grandchild.

In our current world, where both parents are often working outside the home, grandparents are often called upon to assist parents with the care of the grandchildren. When parents separate, the assistance of grandparents is often critical to maintaining the well-being of the children, especially when there is ongoing conflict between the parents. Grandparents often provide financial support to separated parents and grandchildren or reduce expenses for a parent through things such as providing transportation or childcare at no cost to the parent(s).

It would be a very rare circumstance indeed, that a grandparent would have the intention of forming a new family with their grandchild, or a settled intention to treat the child as their own. Further, when a parent enlists the assistance of a grandparent, including the provision of child care, there is usually an implied condition that the parents will maintain their role as parents and the grandparents will maintain their role as grandparents. This is especially the case where the parents (or either of them) continue to have an active role as parents in the lives of the child.

In addition, when a child has two involved parents who both have decision making authority and parenting time with a child, adding one or more grandparents with rights for parenting time and decision-making authority increases the potential for additional conflict to which the child will be exposed. This is especially so where the grandparents are siding with one parent in a divorce or parenting dispute for various reasons.

Increasing the degree of and number of participants in the conflict to which a child is exposed is very damaging to the child and should be avoided whenever possible (paras 39-43). [ 49 ] Justice Yungwirth’s comments are well taken, particularly in a world where grandparents occupy an ever-increasing role in their grandchildren’s lives, often due to both parents working and households consisting of multi-generational familial units.

In these circumstances where parents and grandparents often play overlapping roles, the respective roles that both parents and grandparents play can be difficult to disentangle. [ 50 ] But in most cases, the grandparents’ parenting involvement in the lives of their grandchildren is, like the facts before Justice Yungwirth, conditional upon the parents’ invitation and request for assistance, subject to the parents’ final approval, and does not displace the parents in the exercise of their parental role. III.

Analysis – Does RP Stand In The Place Of A Parent vis-à-vis R? [ 51 ] VAP concedes that she stands in the place of a parent to R. [ 52 ] For the following reasons, VAP has satisfied me that RP also stands in the place of a parent to R. [ 53 ] I do not arrive at this conclusion lightly. [ 54 ] I appreciate RP’s open-heartedness and generosity in adopting A and in agreeing to become R’s guardian.

I commend him. [ 55 ] I find that that the Ps and R consisted of a family unit between March 2017 and August 2018 during which, owing to the quality and nature of their relationship, each of the Ps were in a parental relationship with R. [ 56 ] During this period, the Ps were R’s sole caregivers and exclusively exercised parenting and decision-making over him pursuant to the Guardianship and Parenting Orders.

Had the Ps declined to do so, R would have been placed by Child and Family Services into foster care. [ 57 ] I accept VAP’s evidence that in the short period A returned to the Ps’ home, A was not meaningfully involved in R’s life. I accept the Ps’ evidence that upon A moving out of their home, neither he nor Alysha have made any effort whatsoever to re-engage or reunite with R.

While it may have been the Ps’ original intention that their decision to assume responsibility for R would be for the short- term, it should have become clear upon A leaving their home in April 2017 that neither A nor Alysha could (or would) assume a normal parenting function. Indeed, this situation remains unchanged today. [ 58 ] VAP deposes that while they were together, RP assumed the role of “father figure” towards R in the same way that he did for A and for the Ps’ two biological children.

She says that RP participated in all regular parenting duties including routinely feeding, bathing, and changing R’s diapers, taking responsibility for R’s bedtime routine when home from work, disciplining R, playing and watching TV with R and teaching R about hockey.

These are all activities that I would normally associate as comprising a normal parental function. [ 59 ] I accept VAP’s evidence (which is not disputed by RP), that R sought comfort, encouragement, and security from RP as any child would from their parent. [ 60 ] It is not disputed that RP regularly took R on daytime outings including riding an ATV, a camping trip, and even overnight trips.

VAP claims that these trips, which included a trip taken by RP and R to the West Edmonton Mall with one of the Ps’ biological children and VAP’s sister and her two sons were so that RP and R could strengthen their parent/child bond as well as R’s bond with the

Ps’ biological children and extended families. [ 61 ] I accept VAP’s evidence (which is undisputed) that RP held R out to his family and friends in the same manner as he did in respect of his biological children. VAP deposes that R was a part of RP’s extended family: that RP’s mother babysat R, RP’s parents and siblings attended the Ps’ home to celebrate birthdays and celebrate holidays and family events, and that R was familiar with RP’s sister and brother.

From what I can tell, R was fully integrated into the Ps’ extended families and community of friends. [ 62 ] The evidence indicates that there was no change in how the Ps’ household operated from a financial standpoint. RP continued in his role as the sole income earner for the family as he had done prior to R’s arrival. There is no evidence that the Ps ever received financial assistance for R’s care from A or Alysha. [ 63 ] RP does not deny his involvement in R’s life as described by VAP.

However, he states that he viewed his role vis-à-vis R as being that of a grandfather figure rather than as a father figure. [ 64 ] I disagree. [ 65 ] While RP may have in his own mind viewed himself as R’s grandfather, I find that the role he played in R’s life is no different than that of a parental figure. There is no evidence that he communicated his self-perceived role to anyone else nor is there any evidence that anyone perceived him as interacting with R as anything other than as a parent. [ 66 ] Commencing in March 2017, the Ps have been the only adult caregivers R has known.

R would not, at his age, have appreciated the difference RP played as a father as distinct from a grandfather. R would simply have identified each of the Ps as his parents, those adult caregivers who were providing him with his day-to-day physical, emotional, psychological, and other needs. [ 67 ] R was treated as part of the Ps’ household, extended family, and community. There is no evidence that he was treated any differently from the way the Ps raised their own biological children and A.

There is no evidence that the Ps’ extended family treated R any differently than one of the Ps’ biological children and A. [ 68 ] The Ps were the two central adult caregivers in R’s life. There is no one else R would reasonably have understood assumed a comparable role. [ 69 ] In support of his contention that R viewed him as a grandfather, RP asserts that R referred to him as “Dedi/Didi” which means grandfather in Croatian and that R never called him “Dad”. [ 70 ] I place little reliance on this fact. R calls VAP “Nana”, Croatian for grandmother.

I doubt that R would have appreciated the technical distinction between these various names given his age and his speech challenges. [ 71 ] In any event, I agree with Justice Macklin’s conclusions in Snow v Snow , 2013 ABQB 146 , that “[w]hile the child never referred to [the grandfather] as her father and never called him “father”, this is not determinative. It is the role played by the individual in the child’s life that is most important, not what she or anyone else might have called the person” (para 27). [ 72 ] The fact that RP did not adopt or offer to adopt R as he had done with A is a neutral factor.

RP agreed to serve as R’s guardian and sole-decision maker and to exercise parenting time and responsibility. At all times, he and VAP jointly discharged the duties, obligations and responsibilities of any responsible parent and acted as a cohesive family unit. [ 73 ] Nor is the fact that RP has discontinued his parental relationship with R since the Ps’ separation a weighty factor.

After all, allowing someone who has assumed a parental role towards a child to unilaterally withdraw from their parental obligations is precisely the situation that the Supreme Court of Canada sought to avoid in Chartier because such an approach would eviscerate the child-centric focus which courts must consider in their

interpretation of the values and policies of the Act . [ 74 ] I appreciate that the period of approximately 17 months during which the Ps assumed a parental responsibility of R is significantly shorter than the nearly 10-year period in Snow or the 3-year period in Chartier . It is certainly reasonable that the length of time in which someone assumes a parental role towards their child is an important consideration.

But I do not consider this factor to be operative given the unique facts of this case, where R would have been derived of any parental support had it not been for the parenting role each of RP and VAP assumed. [ 75 ] I do not, as RP urges me, consider that my decision would have a “chilling effect” on relationships between grandparents and grandchildren. This is because decisions regarding loco parentis are not one-size-fits-all. [ 76 ] Ultimately, my analysis derives from the factual matrix of this unique case.

As Justice Macklin put it in Snow : The Court must always look at the particular circumstances existing in a given situation to determine whether a person, be that person a grandparent or a stepparent or anyone else, stands in a position of a parent to the child. It is the peculiar facts of this case...that has determined his standing, not the simple facts that he is her grandfather and they lived in the same home (para 29). IV. Conclusions [ 77 ] For all the reasons stated above, I declare that RP stands in loco parentis to R pursuant to section 2(2) (

a) of the Act . [ 78 ] I direct the parties to provide me, within 15 days from the date of this decision, with an approved form of Order which I can endorse. [ 79 ] Presumptively, VAP is entitled to costs. If the parties cannot agree on costs, they can provide me with their respective

submissions within 30 days from the date of my decision. I would ask that the parties address McAllister v Calgary (City) , 2021 ABCA 25 in their submissions. Each of the parties’ submissions on costs shall not exceed 3 pages. Heard on November 7, 2022. Dated at the City of Calgary, Alberta on November 14, 2022. O.P. Malik J.C.K.B.A. Appearances: Roxanne F. Seekins for the Applicant, VAP E. Beecher Menzies for the Respondent, RP