Child support cases usually involve questions around how much support one parent has to pay to another parent in order to care for a child. However, a case before the Alberta Court of Queen’s Bench saw a more unusual set of facts which dealt with whether grandparents can be sued for child support.

The grandparents were married on December 30, 1977 and separated on April 6, 2006. They had three children, all of whom were adults at the time of the trial. In 1996, the grandparents’ 17-year-old daughter gave birth to a baby girl. The child and her mother continued to reside in the grandparents’ house until the mother moved to California in 2002. The child did not move to California with her mother, and continued to live with the grandparents up until their separation, after which time she resided with the grandmother. The child’s father has never resided with the child and has never paid child support. At the time of the trial, the child was 16-years-old.

The grandfather worked in Fort McMurray up until 2003, at which time he lost his job. The grandparents and the child moved to Newfoundland after this, but the grandfather returned to Alberta after the separation, leaving the grandmother and the child in Newfoundland. The grandmother and child moved to Alberta in 2008 to stay with another one of the grandparents’ children while she looked for work.

Suing for support

Rather than suing the mother or father of the child for support, the grandmother chose to sue the grandfather. Her argument was that the grandfather stood in loco parentis to the grandchild. The court addressed this as well as the approach it should take when there is more than one person who has a child support application.

Alberta’s Divorce Act stated that a child of a marriage includes “any child for whom [the spouses] both stand in the place of parents. The Supreme Court of Canada outlined what a court should consider when determining whether a person stands in the place of a parent, writing the court “must determine the nature of the relationship by looking at a number of factors, among which is intention” (at para. 39). Intention can be expressed or it can be inferred from actions. Other factors include whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child; whether the person disciplines the child as a parent; whether the person represents to the child and others that he is responsible as a parent to the child; and the nature or existence of the child’s relationship with the absent biological parent.”

The grandmother argued the grandfather was the only father figure the child ever knew, and that he treated the child the same way he treated his biological children. In fact, the grandfather made efforts to prevent the biological father from being involved in the child’s live, and to prevent the child from moving to California with her mother. She said the child considers the grandparents to be her parental figures.

The grandfather’s position

The grandfather said he never held the child out as his own, and that the child didn’t ever refer to him as her father. He insisted his care for the child was that of a grandparent’s, and that he never intended to raise her as his own. He was of the opinion that the child’s mother should take on responsibility for raising the child.

Did the grandfather assume a parental relationship?

The court was satisfied that the child and grandfather did have a child-parent relationship while they lived together, writing,

“On numerous occasions in recent questioning of the grandfather, he spoke of the grandchild as one of his kids. He acknowledged playing with her as he did with his other children, monitoring her homework, registering her on his employee benefits plan, and disciplining her as he did with “all [his] other kids”. While he also confirmed that he did not treat his other grandchildren in the same way, I do note that neither of his other grandchildren ever lived with him and one of them lives in California. While the child never referred to him 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.”

The court was not concerned about the possibility of a “chilling effect” being placed on grandparent-grandchild relationships, stating the facts of the case are peculiar, and don’t lend themselves to most situations.

Biological parents were not off the hook

In finding the grandfather to have owed child support, the court then turned to the child’s biological parents, finding them to be responsible as well. The court wrote “The biological parents and those in loco parentis all owe a joint and several duty to provide a fair standard of support for the child. In this case, the mother and father of the child have a legal obligation to support her as does the grandfather who stood in loco parentis.”

The court ordered the grandfather to pay retroactive child support, but placed no ongoing obligation on him. The child’s biological parents were ordered to pay ongoing support, with all support payments to be made directly to the grandmother.

Navigating issues of child support can be difficult, especially for those inexperienced in the process. The excellent team of lawyers at Borden Family Law focus exclusively on family law and have worked on over 4,000 cases. We are efficient and effective in finding solutions to our clients’ problems, and work tirelessly to protect their interests while also keeping costs down through flat fees. Please call us at 905-576-6090 or reach us online if you have a family law issue you would like to discuss.