Andela v. Jovetic: Standing in the place of a parent

This case dealt with whether or not an individual ‘stood in place of a parent’ for child support under the Family Law Act.  The court provided a very useful summary of the caselaw regarding this issue, and further guidance on what an individual most prove to show that someone to be considered standing in the place of a parent. It should also be seen as a case which makes it clear that an individual does not automatically stand in the place of parent despite a long period of time elapsing, or because they live in the same home as the children.

Background of the case

The applicant, Lesley Andela, sought child support from her former common law husband Michael Jovetic.  Andela had two children from a previous marriage who lived with the couple; while Jovetic also had two children but they lived with their respective mothers.  The couple had a volatile eight year relationship which had periods of separation, violence and hostility.  The couple brought a very large amount of conflicting evidence as to Mr. Jovetic’s relationship with the children.

The Court’s Decision

The court had to determine whether or not Mr. Jovetic stood in the place of a parent for Ms. Andela’s two children.  This would create an obligation for Mr. Jovetic to pay child support under Section 31 of the Family Law Act:

Obligation of Parent to Support Child — (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full-time program of education, to the extent that the parent is capable of doing so.

The Family Law Act also provides definitions of both “child” and “parent” in Section 1:

“Child” includes a person whom a parent has demonstrated a settled intention to treat as a child or his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

“Parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

The court then discussed the case of Spring v. Spring a 1987 Ontario United Family Court case which was one of the first cases to utilize the “settled intention” analysis.  Essentially, a parent became responsible for the support of a child when it could be demonstrated a settled intention to treat the child as part of his or her family.  The court stated that it is up to the person asserting this claim to provide a preponderance of evidence supporting this intention. The court then quoted the Supreme Court of Canada case Chartier v. Chartier for the relevant factors for determining whether a parent has demonstrated a settled intention.

“The relevant factors in defining the parental relationship include, but are not limited to, 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 (depending upon ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, 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’s relationship with the absent biological parent”

The court then utilized this framework to analyze the facts of this case.  There is overriding factor that will definitively predict the result of every case, as the court points out, rather it is a fact driven analysis.  The court determined Mr. Jovetic did not demonstrate a settled intention to treat the children as his own family.  Despite the fact that Mr. Jovetic spent many years living with the children, and often supervised the children when Ms. Andela was working.  The court described these interactions as pragmatic, and contrasted them with the close relationship Mr. Jovetic had with his biological son.  The court stated that there was a large amount of conflicting evidence, and that Ms. Andela have failed to demonstrate with a preponderance of evidence a settled intention to raise her two children on the part of Mr. Jovetic. This case is a reminder that even if a couple is together for a very long period of time, this does not automatically create an obligation on the part of one spouse to support the children of the other.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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