“I do not agree with the reasoning in Carignan. As noted above, the words “in the place of a parent” must be given a meaning that is independent of the common law concept and reflective of the purposive and contextual approach to statutory interpretation advocated by this Court. Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult. The interpretation of the provisions of the Divorce Act relating to “child[ren] of the marriage” should be “given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”: see Interpretation Act, R.S.C., 1985, c. I-21, s. 12. The reasoning in Carignan ignores one of the fundamental objectives of the Divorce Act as it relates to children. The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.
What, therefore, is the proper time period for determining whether a person stands in the place of a parent? The term “at the material time” has been interpreted with reference to the parental status to mean “the time of the commencement of the proceedings” (see Hock v. Hock, [1971] 4 W.W.R. 262 (B.C.C.A.), at p. 273); “the time of the hearing” (see Harrington v. Harrington (1981), 1981 CanLII 1762 (ON CA), 33 O.R. (2d) 150 (C.A.), at p. 159); and has also been held to mean “whatever date is appropriate”.
InCarignan, the Manitoba Court of Appeal held that the words “at the material time” have no reference to when the parental status occurred or existed, but only to whether the step-parent is “in the place of a parent” when the child is under 16 or over 16 but in a dependant state. Huband J.A. noted that there is no reference to material time in s. 2(2) where the expression “in the place of a parent” is used. He held that a proper interpretation of the two sections is that the court can make an order for maintenance against a person standing in the place of a parent only if the child is under 16, or over 16 and in a dependant state. The court said, at p. 72:
If one looks back at the definition section, eliminating unnecessary words, it states that the child of the marriage means a child of two spouses who “at the material time” is under the age of sixteen years (forgetting for the moment clause (b) of the definition). The words “at the material time” refer only to the question of the age of the child. Those words have no reference to the child’s status “in loco parentis”. Reference to the relationship in loco parentis follows in a separate definition provision which indicates that a child of two spouses includes a child in loco parentis. Reading the two sections together, the court has jurisdiction to make an order of maintenance in favour of a child in loco parentis but only if the child is under the age of 16 “at the material time”.
Similarly, in Miller v. Miller (1988), 13 R.F.L. (3d) 80, at p. 83, Scott L.J.S.C. of the Ontario Supreme Court put the matter in these terms:
The “at the material time” phrase refers to age or condition; the loco parentis subsection is in the present tense in both languages — and I fail to see how the at the material time concept can be imported from one subsection into the other.
It is clear that the court must address the needs of the child as of the date of the hearing or order. The existence of the parental relationship under s. 2(2)(b) of the Divorce Act must however be determined as of the time the family functioned as a unit. See Julien D. Payne, Payne on Divorce(4th ed. 1996), at p. 148. If the “material time” was to be interpreted as in Hock, supra, it would be difficult to find a parental relationship in situations where the step-parent has little contact with the child between the separation and the divorce proceedings. This is inconsistent with the purpose of the Divorce Act.”
Chartier v. Chartier, [1999] 1 SCR 242, 1999 CanLII 707 (SCC) at 32-36