2023 MBKB 69, 2023 MBKB 69

Date: 20230419 Docket: FD 21-02-09217 (Brandon Centre) Indexed as: S.L.S. v. R.J.P. Cited as: 2023 MBKB 69 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: S.L.S., ) petitioner, ) Suzette Golden-Greenwood ) for the petitioner - and - ) ) ) R.J.P., ) respondent. ) Jodi Wyman ) for the respondent ) ) Judgment Delivered: ) April 19, 2023 LEVEN J. S UMMARY [ 1 ] This was a trial of an issue – whether the respondent stood in loco parentis (in the place of a parent) in respect of one of the petitioner’s children (“the Child”) from a previous relationship.

For reasons explained below, I find that he did not stand in loco parentis. [ 2 ] The petitioner had two children from a previous relationship. The Child was born in 2007. The petitioner and the father of the Child (the “Biological Father”) had almost no contact after 2008. The Child’s older sister is now well over 18. Similarly, the Child and the Biological Father had almost no contact (except for some trivial, indirect contact on social media).

The Biological Father paid no child support. [ 3 ] However, on February 1, 2023, the petitioner filed a petition against the Biological Father and obtained a substitutional service order against him on February 15, 2023. [ 4 ] Meanwhile, the respondent had two children of his own from a previous relationship. The petitioner and the respondent began dating, and moved in together in 2013.

The Child, and the respondent’s son, all lived in the same house. (The son and the respondent’s biological daughter are now well over 18.) [ 5 ] The Child’s surname is a hyphenated name incorporating the surnames of her mother (the “petitioner”) and the Biological Father. [ 6 ] The parties separated in 2020. They never had any children together. The petitioner has been living with the Child since. [ 7 ] At first, the separation was amicable. The petitioner and the respondent cooperated is some practical ways. The respondent spent no time at all with the Child.

They communicated two or three times, briefly (and politely) by text message. The petitioner explicitly told the respondent that she wanted no child support. [ 8 ] On April 7, 2021, the petitioner filed her Petition. She had legal counsel. Of course, she signed the Petition. Her Petition requested table child support in respect of the Child. Under the “parenting arrangements” section, the Petition said: “The Respondent,

who stood in place of a parent, will not have an order of access to [the Child]”. The Petition has never been amended. [ 9 ] The Answer was filed on September 2, 2021. Under “Child Support”, it said: “The Respondent does not stand in place of a parent to [the Child], nor does the Petitioner seek such a declaration in her Petition.” [ 10 ] During the pretrial process, it was decided that a separate trial of an issue would be held to determine whether the respondent stood in loco parentis to the Child. The trial was held on March 16, 2023. [ 11 ] By agreement, most evidence was filed by way of affidavit.

The respondent filed one affidavit. The petitioner filed two affidavits (before and after the respondent). By agreement, at the trial the respondent was asked a few questions in direct examination (to reflect the fact that the petitioner filed a second affidavit), and both parties were cross-examined on their affidavits. Shorter affidavits were sworn by various relatives, and the affiants were not cross-examined on them. F ACTS [ 12 ] This is not a comprehensive recitation of all evidence and argument; it is a concise

summary of certain important matters. [ 13 ] I should note at the outset that both parties filed affidavits that did not comply with the Court of King’s Bench Rules , Man. Reg. 553/88 (the “ Rules ” ). Rule 70.30 refers to affidavits in family proceedings. Rule 70.30(2) says that Rule 4.07(2) applies. Rule 4.07(2) says that affidavits shall be confined to statements of fact within the personal knowledge of the deponent, except where the Rules provide otherwise.

Rule 39.01(5) says that affidavits on Applications may contain statements of information and belief about non-contentious facts, if the source of the information is specified. Rule 39.01(4) is a more relaxed rule for affidavits on Motions. Such affidavits may include statements of information and belief (even about contentious matters), if the source is specified. [ 14 ] Even if we were to use the more relaxed rule for affidavits on Motions, some of the affidavit evidence would violate the rule.

For example, paragraph 85 of the petitioner’s second affidavit includes a statement of information and belief on a contentious matter, and does not specify the source of the information and belief. Perhaps in the interest of brevity, neither counsel objected to the improper sections of the various affidavits. [ 15 ] In keeping with Rule 70.02.1 (proportionality in family proceedings), I will assign more weight to portions of the affidavits that comply with all Rules , and less weight to those portions that violate the Rules . [ 16 ] There was considerable overlap between the evidence of the parties.

There was no dispute that the respondent and the Child interacted in a non-trivial way during the approximately seven years that they lived in the same house. No one alleged that the respondent was ever unkind or impolite to the Child. L ESS I MPORTANT F ACTS [ 17 ] The parties devoted a great deal of energy to disagreeing about matters of minimal importance. [ 18 ] The petitioner filed many family photos in which the Child, the respondent, and other relatives appeared. For the most part, everyone in the photos was smiling.

Sometimes, the photos were taken at specific events, such as Christmas, birthday parties or graduations. One photo (taken at a celebration at which the respondent’s extended family was present) showed the respondent’s father with his grandchildren. The Child was one of the children in the photo. [ 19 ] In other ways, the two parties told essentially the same story, although with a slightly different “spin”. For example, the respondent enjoyed listening to certain recorded music. The Child apparently listened to this music with him and came to enjoy it.

The respondent pointed out that he himself could not carry a tune (and no one suggested that he could). [ 20 ] The petitioner said that the Child referred to one of the respondent’s sisters by the affectionate nickname “Amma”. The respondent said that many of her friends and acquaintances, children and adults, called her “Amma”. [ 21 ] The parties agreed that the Child spent a fair amount of time at the home of one of the respondent’s sisters. The respondent said she was mostly there as a paid babysitter.

The petitioner said she also went over just to visit. [ 22 ] In general, the petitioner tended to portray the relationship between the Child and the respondent’s relatives as more significant, while the respondent portrayed it as less significant. Similarly with the relationship between the Child and the respondent’s biological children. [ 23 ] The petitioner also had a tendency to speak about the respondent’s role in generalities, while the respondent was more precise. For example, the petitioner said that the respondent took the child to medical and dental appointments (without estimating how many).

The respondent said he took the Child to one dental appointment (when the petitioner was unavailable). [ 24 ] There were other examples of disagreements. The petitioner tended to state that the respondent did some type of activity with the Child, and the respondent replied that he only did that activity on one occasion. For example, the parties and the Child all rode together to annual Christmas events. The petitioner said that the respondent took the Child to Christmas events.

The respondent replied that, on one Christmas when the petitioner had to work late, the respondent and the Child drove to a Christmas event, and the petitioner joined them later. M ONEY [ 25 ] Both parents worked. The petitioner worked four days a week (three days a week in summer). The parties agreed that, during the early years that they were living together, the respondent worked long hours and earned a high income. [ 26 ] The parties disagreed about the later years of the relationship. The respondent insisted that he continued to work long hours.

Among other things, he inspected oil wells, hauled gravel, and did snow removal in the winter. The petitioner insisted that he worked reduced (and flexible) hours, but continued to earn a high income. The parties exchanged income tax documents as part of their litigation but, apparently, some financial disputes will only be resolved at trial. [ 27 ] The parties disagreed about the financial operations of their household.

Frankly, the record was imperfect. [ 28 ] In his affidavit, the respondent wrote that he and the petitioner: 13. …explicitly agreed that my children were my responsibility and hers were her responsibility. This extended to financial responsibility. [The petitioner] did not expect me to pay for expenses related to her children, although there were a handful of times during the years when she was short on money and I loaned her the money or outright paid for things for [the Child].

There were times when I fronted an expense for [the Child] that [the petitioner] would repay me later or cover an expense of mine later as a form of repayment. [ 29 ] The respondent said he paid for the mortgage and for hydro in the house that they all lived in. [ 30 ] The respondent said that he did not know how the petitioner spent the money that she earned. The parties had separate bank accounts.

The respondent said that he tended to use cheques, so he now has a paper trail of his own expenditures. [ 31 ] The respondent said that the petitioner occasionally bought small items for the respondent (e.g. a case of beer or a pack of cigarettes). He said that he occasionally bought a small item for the Child as a gift. [ 32 ] Otherwise, the respondent said that he supported his own biological children, and the petitioner supported the Child. [ 33 ] The respondent gave the example of Registered Educational Savings Plans (RESPs).

He said he bought RESPs for his biological children, but not for the Child. (The petitioner did not deny this assertion.) [ 34 ] The respondent agreed that, in 2019, he claimed a fitness tax credit for the Child (who played various sports at various times). [ 35 ] The respondent said that he had an old will from 2004, and that he never updated his will to mention the Child. [ 36 ] The petitioner provided less concrete information about finances.

She put a greater spin on the fact that the respondent bought some gifts for the Child. [ 37 ] In her second affidavit, the petitioner wrote that there never was an explicit understanding that the parties were not responsible for each other’s children. She wrote that “no one kept track it was just part of being in a family.” [ 38 ] The petitioner wrote that she had no will, and that she listed the respondent as a beneficiary of her life insurance. [ 39 ] The petitioner said that the respondent bought the Child a baseball glove and helmet.

The petitioner testified that, contrary to her own second affidavit, it was the respondent who bought skate gear for the Child. [ 40 ] The parties agreed that, on one occasion, the respondent bought a blanket for the Child. The respondent said he did so on the petitioner’s request. [ 41 ] Neither party shed any light on the question of who paid for basics like food.

The cost of the Child’s food for seven years is far from trivial. [ 42 ] Similarly, no one explicitly said who paid for the Child’s ordinary clothing (as opposed to special items like a helmet). “D AD ” [ 43 ] The parties disagreed about other substantive issues. The respondent said that the Child called him by his first name, rather than calling him “dad”. The petitioner replied that the respondent’s biological children also called him by his first name, rather than calling him “dad”.

The respondent denied this, and insisted that his biological children called him “dad”. [ 44 ] The respondent’s biological children both filed affidavits, and neither specified that the biological children called the respondent either by his first name or by the name “dad”. [ 45 ] The petitioner filed supporting affidavits sworn by witnesses who would have observed the respondent and his biological children. Their affidavits were silent on this issue.

T HE C HILD’S B IOLOGICAL F ATHER [ 46 ] In her first affidavit, the petitioner wrote that she had “never had an address or known where [the Biological Father] was since we separated in 2008.” [ 47 ] The petitioner said that the Biological Father contacted her more than once on social media and asked about the Child. The petitioner replied more than once that all contact should be between lawyers. There was no further contact. [ 48 ] The petitioner did not offer any information about why she filed a petition (and obtained a substitutional service order) against the Biological Father in 2023.

[ 49 ] The petitioner was asked about the fact that the Child’s surname included the Biological Father’s surname. She replied that it was legally impossible to change the surname without the Biological Father’s consent. D ISCIPLINE [ 50 ] The parties gave very different accounts of how they disciplined the Child and the respondent’s biological son. In short, the petitioner said that both adults were fully involved in the discipline process.

The respondent said that he made some early attempts to discipline the Child, but that the petitioner made it clear to him that only she was to be involved in disciplining the Child, so the respondent stopped trying. He gave examples of how he found this to be very frustrating. [ 51 ] The respondent testified that the petitioner never disciplined his biological son, and the respondent never sought her advice about disciplining the biological son. [ 52 ] The respondent wrote: 14. [The petitioner] was very agreeable that I should not take on a parental role with [the Child].

She felt strongly that only she should correct and discipline [the Child] and that only she should make parenting decisions. This was generally fine with me 15. There were times when [the petitioner] and I got into disagreements over [the Child’s] behaviour. [The Child] could be very rude and disrespectful towards me and members of my family. I felt it appropriate to reprimand her when she behaved this way, as I would have any child who I heard speak disrespectfully to an adult. [The petitioner] however, felt that this was overstepping on my part and became very angry whenever I tried to correct [the Child].

So, early on in our relationship, I stopped offering opinions or comments, save and except when I felt that [the Child’s] behaviour was particularly unacceptable. And, in those instances, I asked [the petitioner] to act to correct that behaviour but did not do so myself. [ 53 ] The respondent wrote about one incident in particular: 16. …when [the Child] was approximately 10 years old, she was playing with fire and started a fire in the south side of my yardsite. The fire got out of control and ended up causing damage to a tractor.

I was very angry about this. [The petitioner] was adamant that I was not allowed to reprimand [the Child] and that she would be the one to discipline her daughter. [The petitioner] took away [the Child’s] iPad for two days. This caused an argument between [the petitioner] and I, as I was very upset that the punishment was so insignificant. But, [the petitioner] told me clearly that I had no say in her parenting decisions or how she disciplined her daughter. [ 54 ] The petitioner disagreed.

In her second affidavit, sworn on March 7, 2023 , she wrote that both adults “verbally disciplined” the children and “removed their privileges”. [ 55 ] The petitioner also disagreed about the fire incident. She wrote: 12. …I recall we were both very upset about the scary and serious situation at the time and not upset with each other. I do not recall us having an argument over [the Child’s] punishment because the Respondent and I together disciplined [the Child].

I do not recall what the punishment was, but I am sure that it was more than taking her iPad away for two days, given how serious I recall the situation to be. T HE S CHOOL F ORMS [ 56 ] The petitioner attached to her first affidavit , sworn on January 31, 2023, the annual contact forms for the Child’s school. The forms had spaces for the names of two parents and for a non-parent emergency contact. The emergency contact on all forms was the petitioner’s mother. There were no signatures on the forms. The first parental contact on all forms was the petitioner. There were no forms for Grades 1-3.

On the Grade 4 form, the respondent’s name was written in as the second contact. The prefix “step’ was inserted before the word “father”. The form says that the Child lives with her “mother”. The Grade 5 form has the respondent’s name typed in as “father”. Like the previous form, it says that the Child lives with “mother”. The Grade 6 form is like the Grade 5 form.

The Grade 7 form would have been like the Grade 6 form, except that the respondent’s name and information are crossed out. [ 57 ] The petitioner wrote in her first affidavit that the respondent was listed as the Child’s parent on her school forms. [ 58 ] The respondent wrote that he never agreed to have his name placed on school forms and he was not aware that the petitioner had so placed his name until he read the petitioner’s affidavit. O THER M ATTERS [ 59 ] The Child, who is now almost 16, did not give evidence.

The petitioner did include an undated letter from the Child in which she referred to the respondent as a “father figure”.

The respondent pointed out that the Child’s older sister, who knew the respondent but never lived in the same household as him, also referred to him as a “father figure”. [ 60 ] During her cross-examination, the petitioner blurted out that she would be very happy if the respondent would spend lots of time with the Child now. [ 61 ] When asked about her Petition and the fact that her Petition requested that the respondent receive no parenting time at all, the petitioner said that her lawyer wrote the Petition. When it was pointed out that she signed the Petition, she had no meaningful response.

L EGISLATION [ 62 ] Relevant Rules include: Factors in discretion 57.01

(1) In exercising its discretion under

section 96 of The Court of King's Bench Act , to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing, (

a) the amount claimed and the amount recovered in the proceeding; (

b) the complexity of the proceeding; (

c) the importance of the issues; (

d) the conduct of any party which tended to shorten or lengthen unnecessarily the duration of the proceeding; (d.1) the conduct of any party which unnecessarily complicated the proceeding; (d.2) the failure of a party to meet a filing deadline; (

e) whether any step in the proceeding was improper, vexatious or unnecessary; (

f) a party's denial or refusal to admit anything which should have been admitted; (f.1) the relative success of a party on one or more issues in a proceeding in relation to all matters put in issue by that party; (

g) whether it is appropriate to award any costs or more than one set of costs where there are several parties with identical interests who are unnecessarily represented by more than one counsel; and (

h) any other matter relevant to the question of costs. Purpose of family proceedings rules 70.02.1(1) The purpose of this Rule is to (

a) help parties resolve the legal issues in a family proceeding fairly and in a way that will (

i) take into account the impact that the conduct of the proceeding may have on a child, and (ii) minimize conflict and promote cooperation between the parties; and (

b) secure the just, most expeditious and least expensive determination of every family proceeding on its merits.

Proportionality 70.02.1(2) Securing the just, most expeditious and least expensive determination of a family proceeding on its merits includes, as far as is practicable, conducting the proceedings and allocating appropriate court resources to the proceeding in ways that are proportionate to (

a) the interest of an child affected; (

b) the importance of the issues in dispute; (

c) the amount of support and the value of property likely at issue in the proceeding; (

d) the complexity of the proceeding; and (

e) the likely expense of the proceeding to the parties. [ 63 ] Relevant sections from The Change of Name Act , C.C.S.M. c. C50 (“the CONA ”) include:

Definitions 1(1) In this Act… “ name ” includes given name and surname”. Change of name of children by parent 4(1) A parent may apply to change the name of any children who are in his or her custody (

a) with the written consent of the other parent who has custody; or (

b) on notice by registered or certified mail to the parent who does not have custody… Consent of child 4(3) An application to change the name of a child 12 years of age and over requires the written consent of the child. Director may dispense with notice 5(1) Where notice of the application mailed under

section 4 cannot be delivered by the post office or where the last known residence of the parent who does not have custody is the same as the address of the applicant, the director may require the applicant to make a reasonable attempt to locate the parent who does not have custody and where the attempt is unsuccessful, the director may dispense with notice to the parent who does not have custody. [ 64 ] Relevant sections from the Family Maintenance Act , C.C.S.M. c F20 (“the FMA ”) include: Obligation to support children 36(1) Each parent of a child has the obligation, subject to The Child and Family Services Act , to provide reasonably for the child's support, maintenance and education, whether or not the child is in that parent's custody.

Person standing in loco parentis 36(4) A person who stands in loco parentis to a child has the obligation to provide reasonably for the support, maintenance andeducation of that child, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to theextent that those parents fail to provide reasonably for the child's support, maintenance or education. CASE LAW [65] The petitioner cited Chartier v. Chartier, (SCC), [1999] 1 S.C.R. 242 (“Chartier”). The court examined the role of standing in place of a parent under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

At paragraph 32, the court ruled that a personstanding in place of a parent cannot unilaterally withdraw from that relationship. At paragraph 39, the court observed that 39. Whether a person stands in the place of a parent must take into account all factors relevant to the determination, viewedobjectively….Intention will not only be expressed formally.

The court may also infer intention from actions, and take into considerationthat even expressed intentions may sometimes change….The relevant factors in defining the parental relationship include, but are notlimited to, whether the child participates in the same way as would a biological child; whether the person provides financially for thechild (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, thefamily, 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’srelationship with the absent biological parent. … [66] Both parties cited M.(L.M.) v.

B.(W.G.), 2003 MBCA 17 (“Monkman”). This case dealt with “in loco parentis” status under theFMA. At paragraph 49, the majority held that “in loco parentis” under the FMA has the same meaning as ”stands in the place of a parent”under the Divorce Act. At paragraph 59, the majority observed that an “in loco parentis” relationship is not entered into casually. 59. …Nor should being pleasant or financially generous without the intention to assume parental responsibilities be sufficient.

The natureof a conjugal relationship between adults requires a pleasant interaction between the adults and the child. [67] In Monkman, at paragraph 69, the majority pointed out that acts “of generosity will not, in and of themselves, result in a legaldetermination that an adult has taken on the role of a parent …” [68] The petitioner cited Parsons v. Watt, 2008 MBQB 328 (“Parsons”). In this case, the court found that the stepfather did play anin loco parentis role to the son. Among other things, the stepfather had discussed with the mother his intention to adopt the son.

Whenthe son’s school wrote a letter home, it was addressed to both the mother and the stepfather. The stepfather listed the son as a dependenton his income tax returns, which the stepfather prepared himself. [69] The respondent cited Cook v. Cook, (NS SF) (“Cook”).

At page 8, the court observed: … In finding parental status, a court must take care not to penalize a step-parent for behaving kindly or offering emotional, physical andfinancial assistance to the natural parent who would otherwise be raising the children alone or with some assistance from the non-custodial natural parent. [70] At page 9, the court added that, … the threshold for a parental status finding must be pegged at a sufficiently high point that it avoids the imposition of obligations…except where the step-parent can be clearly shown to have assumed the role of the natural parent and in substantial substitution for thenatural parent’s role. [71] The respondent cited C.N.C. v.

W.J.M., 2018 PESC 45 (“CNC”). At paragraph 24, the court observed: “There is adistinction between parents who maintain an amicable and positive relationship with stepchildren, from those who assume a parental roletranscending the spousal relationship.” ARGUMENT [72] There was no real dispute between the parties about the applicable legal principles, as set out in Chartier and later cases. Thepetitioner encouraged the court to accept her version of events. She played up every detail that would be consistent with an in locoparentis relationship.

She focused on the things that the respondent and the Child did together; she focused on the gifts that therespondent bought for the Child; she emphasized the relationship that the Child had with the respondent’s relatives; she mentioned thatthe parties and the Child lived in the same household for about seven years (when the Child was roughly 6 to 13 years old); and shefocused on the absence of the Biological Father from the Child’s life.

[ 73 ] The respondent, of course, urged the court to accept his version of events. He downplayed the various things that he did with the Child, pointing out the minimal nature of the events (e.g. one trip to the dentist, one parent-teacher conference). He pointed out that he and the Child never spent an overnight together (e.g. camping) without the petitioner. He mentioned the petitioner’s comment to him after separation that she would not seek child support. He pointed to the Petition, which argued that he should have no parenting time at all. The Petition has never been amended.

No parenting time at all would hardly be consistent with an in loco parentis arrangement. D ECISION [ 74 ] The onus was on the petitioner to prove in loco parentis status on a balance of probabilities. As noted above, I find that she did not meet this onus. [ 75 ] Firstly, I was able to see and hear the parties testify. I was able to see and hear their tone of voice, body language and demeanour. I appreciate the limits of using demeanor to assess credibility. [ 76 ] In general, I found the respondent to be a more credible witness than the petitioner.

Where it strengthened her position, the petitioner tended to use generalities. For example, she said that the respondent took the Child to dental appointments. The respondent used more precision. He recalled with certainty that it was one dental appointment. Perhaps this was a matter of reliability, rather than credibility. Perhaps the petitioner had general memories about things that the respondent did years ago.

When it came to unusual events (such as taking the Child to the dentist), perhaps the respondent simply had a more accurate memory. [ 77 ] Some of the petitioner’s passing comments on minor matters also harmed her credibility. She included a photo of the Biological Father in her affidavit. The photo showed that he had at least some tattoos. The petitioner called them “gang” tattoos.

When asked how she knew that they were “gang” tattoos (as opposed to general tattoos), she admitted that she just assumed they were. [ 78 ] In any event, whether it was credibility, reliability or some combination of the two, when the petitioner and the respondent disagreed, I accept the respondent’s version of events. [ 79 ] Some uncontested facts supported the petitioner’s position. The Child’s Biological Father never had a role in her life. She lived in a household with the respondent from when she was about 6 to when she was about 13.

The respondent was the most important adult male figure in her life during those years. The Child had at least some relationship with the respondent’s family, doing a fair amount of babysitting for one of the respondent’s sisters. The Child participated in many family gatherings, both with the respondent’s own children, and with the respondent’s extended family. [ 80 ] It is undisputed that the Child called the respondent by his first name, rather than calling “dad”. [ 81 ] As noted, where the parties gave different versions of events, I accept the respondent’s version.

So for example, I accept the respondent’s evidence that his own children called him “dad” rather than calling him by his first name. [ 82 ] No one disputed that the Child called one of the respondent’s sisters “Amma”. However, I accept the respondent’s evidence that many people, children and adults, called her “Amma”. I find that nothing turns on this point. [ 83 ] Nothing turns on the fact that the Child appears in one photo with the respondent’s father and his grandchildren. The Child was present. The other children were being included.

It would have been truly heartless to deliberately exclude the Child from the photo. After all, the photo was taken to promote good feelings, not for the purpose of genealogical research. [ 84 ] No one gave specific evidence about who bought the Child’s clothing. The respondent’s general evidence was that the petitioner looked after the Child’s needs. The parties agreed that the respondent bought the Child a few very specific items (a blanket, a glove, a helmet). Perhaps the governing principle is that the expression of one is the exclusion of all others.

If the respondent had bought the Child all of her clothing, no one would have wasted time specifying that the respondent bought her a few very specific items . [ 85 ] The respondent did buy the Child at least some gifts. [ 86 ] I accept the respondent’s version of how the Child was disciplined. Again, the petitioner was very general and the respondent was more specific. The fire incident seemed to make a very deep impression on the respondent. He remembered precisely what discipline the petitioner handed out and he remembered how upset he felt about this.

By contrast, the petitioner could not remember exactly what the discipline was, but she was “sure” that it was more than the respondent said. I accept the respondent’s version of how the Child was disciplined. [ 87 ] I accept the respondent’s account of the school forms. I note also that the first form that mentioned the respondent called him a “stepparent”. Incidentally, the forms are unduly rigid. They are structured to require two parents and one non-parental emergency contact.

A more appropriate format would be for the forms to require three emergency contacts, in order, with space to explain the status of each. [ 88 ] The respondent said that he never bought RESPs for the Child, and the petitioner never contradicted this. [ 89 ] Although this is a very minor point, the petitioner was wrong when she said that the Child’s surname could not be changed without the consent of the Biological Father. The relevant sections of the CONA are set out above. Once the Child was 12, the Child would have had to consent, but that is a separate matter.

The legislation would have provided the petitioner an avenue to change the Child’s surname without consent of the Biological Father, if the petitioner had taken certain steps. Admittedly, little turns on this point. [ 90 ] The petitioner was never asked and she never volunteered any explanation about why she just recently began litigation against the Biological Father and obtained a substitutional service order against him. In the absence of evidence, I will refrain from speculating about motive.

[ 91 ] I give little weight to the Child’s undated letter, attached to the petitioner’s affidavit. The Child referred to the respondent as a “father figure”, but I attach little importance to that phrase. I note that the Child’s older sister, who never lived with the respondent, also called him a “father figure”. The respondent was the most important adult male in the Child’s life for about seven years. However, in and of itself, that does not create in loco parentis status. [ 92 ] No one denies that the respondent behaved pleasantly, kindly and amicably towards the Child.

However, as Monkman , Cook and CNC point out, such behavior in itself does not prove in loco parentis status. [ 93 ] The wording of the Petition stands out like a giant red flag. The petitioner said that the respondent should have no parenting time. The Petition was never amended. The petitioner’s explanation that her lawyer wrote the Petition was unconvincing. The petitioner is extremely intelligent, and her signature is on the Petition.

I attach little weight to the petitioner’s surprise comment in the middle of the trial that she would like the respondent to have generous parenting time now. [ 94 ] It is obvious that the petitioner wants the respondent to pay child support in respect of the Child. However, the petitioner’s wish for child support has no bearing upon the respondent’s in loco parentis status (or lack of status). [ 95 ] For all of the above reasons, I conclude that the petitioner has not proved on a balance of probabilities that the respondent stood in loco parentis to the Child.

C OSTS [ 96 ] The respondent was successful on the one issue that was the subject of this trial. However, there is one unusual feature of this litigation, in the context of costs. [ 97 ] The respondent’s lawyer missed her deadlines for filing and serving affidavits and her brief. At a pretrial conference, the pretrial justice set out certain filing deadlines. The petitioner met her deadlines. The respondent was to file and serve her affidavits by February 10, 2023. In fact, she filed and served them on February 23, 2023.

The trial was on March 16, 2023. [ 98 ] The petitioner’s lawyer explained that she would gladly have accepted unsigned affidavits on February 10. When she received nothing, she made reasonable attempts to contact the office of the respondent’s lawyer. [ 99 ] In theory, upon receiving the late affidavits, the petitioner might have requested an adjournment, in order to review the late affidavits and obtain instructions from her client. However, any adjournment would punish the petitioner at least as much as the respondent.

Therefore, the lesser of the two evils was to make the best of a bad situation and prepare for the March 16 th trial. [ 100 ] However, at the end of the trial, the petitioner’s lawyer submitted that there should be cost consequences for the late filings. [ 101 ] The respondent’s lawyer pointed that that the late filings did not prolong the trial. [ 102 ] Rule 57.01(1)(d.2), quoted above, allows courts to consider missed deadlines in determining costs. If all deadlines were routinely treated as optional, the result would be chaos and horrific delays.

In appropriate situations, adjournments can be good remedies for missed deadlines. However, there will be times when any adjournment would prejudice the innocent party as much as the guilty one. Such was the case in our situation. [ 103 ] Therefore, in order to remind both parties and both counsel that deadlines are serious matters, I will impose some cost consequences for the missed deadlines in this case. [ 104 ] The respondent will have regular (tariff) costs, minus $500.00 (to reflect the missed deadlines).

If counsel are unable to agree upon costs, they may make an appointment to meet with me about the issue. [ 105 ] I thank both counsel for their courtesy at the trial. __________________________J.