Latin for in the place of a parent to a child; one who stands as a parent to a child.
More commonly known as a step-parent.
In Shtitz, Justice Lamonds of the Saskatchewan Court of Appeal adopted these words:
"A person in loco parentis to a child is one who has acted so as to evidence his intention of placing himself towards the child in the situation which is ordinarily ocupied by the father for the provisions of the child's pecuniary needs.
"When used to designate a person it means to put himself in the situation of a lawful father to the child, with reference to the office and duty of making provision for the child."
In most, but not all, there are no more gender distinctions between those who might stand as in loco parentis step-parents to a child.
As Justice Duncan wrote in Beaudry v Gillcash:
"If the phrase in loco parentis has the same meaning as stands in the place of a parent, then if an adult stands in that position he occupies the same position as a parent and should be entitled to apply for access under (the Manitoba family law statute).
"I am not convinced the Legislature intended to impose an obligation on a person standing in loco parentis to pay maintenance for a child and at the same time deny such a person the right to apply for access ....
"It just does not make sense that one might be liable for support and at the same time not entitled to access.
"If the words mean the same, then a person who stands in the place of a parent should have the same rights and privileges as a parent – they are by definition a parent.
"If one stands in loco parentis one stands in the place of a parent.
"If one stands in the place of a parent, one stands as a parent.
"(J)urisprudence has evolved to the point where a person found to be in loco parentis or to stand in the place of a parent, has all the rights and obligations of a biological parent in the absence of a biological parent or adoptive parent."
As was the case in Beaudry (Manitoba, Canada), many jurisdictions have not left the matter in the hands of the Court and the common law but have, instead, defined a parent or a child to capture those who stand in loco parentis. For example, §2(2) of the Canadian Divorce Act provides that for child access and support purposes, child of the marriage means:
"... a child of two spouses or former spouses includes any child for whom they both stand in the place of parents, and any child of whom one is the parent and for whom the other stands in the place of a parent."
The in loco parentis definition can also be of the utmost importance in the law of wills and estates. In Thériault, Justice Kerans of the Alberta Court of Appeal defined in loco parentis and then very properly qualified it:
"A person becomes a parent when he or she puts himself or herself in the situation of a lawful parent with references to the office and duty of making provision for the child.
"The application of the traditional in loco parentis concept to situations governed by the Act requires, however, consideration of one special factor. I refer to the distinction between a limited and an unlimited commitment to the place of a parent. One can take on that role in a way severely limited by place and time. Babysitters and schoolteachers, for example, are for some purposes in loco parentis. But the commitment in those examples, while it creates legal obligations and rights, has definite limits in terms of time and place. Sometimes, indeed, a lengthy commitment might be made but nevertheless may be conditional. For example, there are yet cases where, on account of illness or other family crisis, members of the extended family take on the care of a child for a lengthy period. But that commitment may be conditional on the continuation of the crisis.
"For this case, I need deal only with commitments that might fairly be described as creating step-parenthood. Those, in my view, are unconditional commitments either to permanent care or to care for an indefinite term. I need not, as a result, deal with the question whether the power in the Act to order those in loco parentis to support a child extends beyond those who offer permanent or indefinite commitments."
REFERENCES:
- Beaudry v Gillcash (also cited as A.D.J.B. v. B.J.G.) 2001 MBQB 193
- Divorce Act, Revised Statutes of Canada 1985, 2nd Supplement, Chapter 3.
- Powys v Mansfield 34 ER 692 (1836)
- Shtitz v CNR 1927 1 DLR 951 (SKCA)
- Thériault v Thériault 1994 2 RFL 4th 157