It is not uncommon for people to find themselves assuming caregiving roles for children who are not their own. Single parents, in particular, often require support, which can come from step-parents, grandparents, or even third parties who take on caregiving responsibilities.
When someone steps in to act as a caregiver, they may be considered in loco parentis, which is a legal term granting certain rights and responsibilities to the caregiver as though they were the child’s parent. Literally translating to “in place of a parent,” this role carries implications that someone in this role should be aware of.
Whether intentional or not, people may be legally recognized as in loco parentis, and this article will explore the legal rights and obligations associated with standing in the place of a parent.
How Do you Become In Loco Parentis?
Section 48 of the Family Law Act states that someone is in loco parentis if they fulfill the following criteria:
(a) They are a spouse to the child’s parent, and
(b) They have demonstrated a settled intention to treat the child as their own.
When determining whether someone is in loco parentis, a court will consider various factors, including:
- The child’s age and maturity level
- The nature and duration of the child’s relationship with the person
- Whether the person has provided the child with any financial support
- Whether the person publicly presented themselves as a parental figure to the child
This is an objective analysis, meaning that a court will look at the evidence and determine whether a reasonable person would conclude that the person is standing in the place of a parent. This also means that someone can be found in loco parentis even if they did not consciously intend to assume that role.
In addition to spouses of the child’s biological parents, there are circumstances in which other people in the child’s life may be considered in loco parentis, including:
- Grandparents
- Extended family members
- Third parties, including roommates or friends
Rights and Responsibilities of In Loco Parentis
In Alberta, someone standing in loco parentis acquires various rights and responsibilities related to the child in their care, similar to those of a biological parent. However, these rights and obligations are not as broad as those of the biological parent and are focused on ensuring the child’s well-being and development.
Rights of those acting in loco parentis
- Day-to-day decisions: Someone in loco parentis has the authority to make decisions about the child’s everyday care, including what the child eats and what clothes the child wears.
- Emergency health decisions: In situations where a biological parent is unreachable, the person in loco parentis can make decisions about the child’s health emergencies.
- Discipline: Someone in loco parentis can manage the child’s behaviour in a manner that aligns with the child’s best interest.
- Access to information: When necessary, someone in loco parentis can access some important information about the child, including their education records.
- Communication with parents: Even with the authority to make decisions about the child, someone in loco parentis has a responsibility to notify the child’s biological parents about any significant decisions they make, particularly those related to the child’s health, education, and discipline.
Limitations on the authority of those acting in loco parentis
- Major decisions: Someone in loco parentis should not make major decisions about a child’s health care or religious upbringing without the consent of the child’s biological parents, unless otherwise specified by legal order.
- Temporary role: The status of being in loco parentis is not indefinite and may terminate when the child’s situation changes.
Child Support Responsibilities of Those In Loco Parentis
There are some situations in which someone standing in loco parentis would be legally responsible for providing child support to the child in their care. The Federal Child Support Guidelines state that, unlike the strict calculations that apply to child support payable by the child’s biological parents, the courts have discretion to order support from someone in loco parentis in an amount the court deems appropriate under the circumstances.
Recent Case Law: CC v JP, 2024 ABKB 573
In a recent Alberta case, CC v JP, the court thoroughly analyzed whether the stepfather was to be considered in loco parentis to his stepchild. The case involved a detailed analysis of the stepfather’s relationship with the child, including the duration of his involvement in her life and the nature of his parental responsibilities. This case highlights the importance of assessing the facts on an individual basis, recognizing that the application of in loco parentis depends on the specifics of the relationship.
Final Thoughts on In Loco Parentis
If you are a caregiver and think you may be in loco parentis, or if a court has determined that you are, in fact, in loco parentis, it is important that you know your rights and responsibilities as soon as possible. You may find yourself assuming caregiving responsibility for a child, and understanding what other obligations and rights come along with this role may help you ensure that your actions are in the best interest of the child, while also protecting your rights.
How Kirk Montoute Dawson LLP Can Help With Your Family Law Matters
Whether you’re dealing with parenting responsibilities, questions about child care or child support, or unique circumstances such as standing in loco parentis, the family law lawyers at Kirk Montoute Dawson LLP can provide advice and legal representation. Contact our family lawyers to discuss your unique family situation and get the guidance you need to protect your rights and the well-being of your children.