A.A. v. B.B. et al., (2007) 220 O.A.C. 115 (CA)

• Judge: McMurtry, C.J.O., Labrosse and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 25, 2006
• Jurisdiction: Ontario
• Citations: (2007), 220 O.A.C. 115 (CA)

A.A. v. B.B. (2007), 220 O.A.C. 115 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. JA.021

A.A. (appellant) v. B.B. and C.C. (respondent)

(C39998)

Indexed As: A.A. v. B.B. et al.

Ontario Court of Appeal

McMurtry, C.J.O., Labrosse and Rosenberg, JJ.A.

January 2, 2007.

Summary:

Five year old D. had three parents: his biological father and mother (B. and C.) and C.'s partner, A. A. and C. had been in a stable same-sex union since 1990. In 1999, they decided to start a family with the assistance of their friend B. The two women would be the child's primary caregivers, but believed that it would be in the child's best interests that B. remained involved in the child's life. D. was born in 2001. He referred to A. and C. as his mothers. In 2003 A. applied for a declaration that, like B. and C. she was D.'s parent, specifically his mother.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 304, held that it lacked jurisdiction to make the declaration sought, either under the Children's Law Reform Act (CLRA) or through exercise of the court's inherent parens patriae jurisdiction. It therefore dismissed the application. A. appealed and, for the first time, alleged a violation of her rights to equality and fundamental justice under ss. 15 and 7 of the Charter.

The Ontario Court of Appeal allowed the appeal. The court agreed that the CLRA did not permit the making of the order sought, but held that it could be made under the court's parens patriae jurisdiction. The court declined to deal with the Charter issues because they were not raised before the application judge. The court issued a declaration that A. was a mother of D.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - Five year old D. had three parents: his biological father and mother (B. and C.) and C.'s partner, A. - A. and C. had been in a stable same-sex union since 1990 - In 1999, they decided to start a family with the assistance of their friend B. - The two women would be the child's primary caregivers, but believed that it would be in the child's best interests that B. remained involved in the child's life - D. was born in 2001 - He referred to A. and C. as his mothers - In 2003 A. applied for a declaration that, like B. and C., she was D.'s parent, specifically his mother - The application judge held that he lacked jurisdiction to make the declaration sought - A. appealed and, for the first time, alleged a violation of her rights to equality and fundamental justice under ss. 15 and 7 of the Charter - The Ontario Court of Appeal declined to deal with the Charter issues because they were not raised before the application judge and A. held not met the three prerequisites for raising a Charter issue for the first time on appeal - First, the court was concerned that there was not a sufficient evidentiary record - Second, A. had not shown that her failure to raise the Charter issues at first instance was not for tactical reasons (i.e., proceeding with an unopposed application) - Third, no miscarriage of justice would result from not deciding the Charter issues because the court had concluded that A. could have the remedy she sought under the court's parens patriae jurisdiction - See paragraphs 8 to 12.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - Five year old D. had three parents: his biological father and mother (B. and C.) and C.'s partner, A. - A. and C. had been in a stable same-sex union since 1990 - In 1999, they decided to start a family with the assistance of their friend B. - The two women would be the child's primary caregivers, but believed that it would be in the child's best interests that B. remained involved in the child's life - D. was born in 2001 - He referred to A. and C. as his mothers - In 2003 A. applied for a declaration that, like B. and C., she was D.'s parent, specifically his mother - The application judge dismissed the application - He held that the Children's Law Reform Act (CLRA) contemplated only a single father and a single mother of a child - A. appealed - The Ontario Court of Appeal agreed with the application judge's analysis of the CLRA - However, the court held that it had jurisdiction to make the order under the court's parens patriae jurisdiction on the basis of a gap in the legislation - The CLRA was 30 years old and the Legislature had not foreseen the possibility of declarations of parentage for two women - The court issued a declaration that A. was a mother of D. - See paragraphs 17 to 41.

Infants - Topic 25

General - Definitions - Parent - [See Courts - Topic 2004 ].

Infants - Topic 25

General - Definitions - Parent - Five year old D. had three parents: his biological father and mother (B. and C.) and C.'s partner, A. - A. and C. had been in a stable same-sex union since 1990 - In 1999, they decided to start a family with the assistance of their friend B. - The two women would be the child's primary caregivers, but believed that it would be in the child's best interests that B. remained involved in the child's life - D. was born in 2001 - He referred to A. and C. as his mothers - In 2003 A. applied for a declaration that, like B. and C., she was D.'s parent, specifically his mother - The application judge dismissed the application - He held that Part II of the Children's Law Reform Act (CLRA) contemplated only one mother of a child - He relied principally on the use of the words "the father" and "the mother" in s. 4(1), which connoted a single father and a single mother - A. appealed - The Ontario Court of Appeal agreed with the application judge's analysis of the CLRA - See paragraphs 17 to 24.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Civil Rights - Topic 8584 ].

Statutes - Topic 1411

Interpretation - Construction where meaning is not plain - General principles - Avoidance of conflict with Charter - The Ontario Court of Appeal held that the Charter could be used as an interpretive guide only in circumstances of genuine ambiguity - See paragraph 25.

Cases Noticed:

M.D.R. et al. v. Deputy Registrar General (Ont.), [2006] O.T.C. 489 (Sup. Ct.), refd to. [para. 4].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163; 83 C.C.C.(3d) 129, refd to. [para. 9].

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 91 C.C.C.(3d) 193 (C.A.), refd to. [para. 9].

Hy and Zel Inc. v. Ontario (Attorney General) - see Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General).

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 160 N.R. 161; 67 O.A.C. 81, refd to. [para. 10].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 25].

Symes v. Minister of National Revenue, [1993] 4 S.C.R. 695; 161 N.R. 243, refd to. [para. 25].

Beson et al. v. Director of Child Welfare et al., [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246, refd to. [para. 29].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273, refd to. [para. 29].

A. v. Liverpool City Council, [1981] 2 All E.R. 385 (H.L.), refd to. [para. 30].

T.D.L. v. L.R.L., [1994] O.J. No. 896 (Sup. Ct.), refd to. [para. 32].

Bagaric v. Juric and Bagaric (1984), 2 O.A.C. 35; 44 O.R.(2d) 638 (C.A.), refd to. [para. 34].

C.R. v. Children's Aid Society of Hamilton, [2004] O.J. No. 3301 (Sup. Ct.), refd to. [para. 40].

Statutes Noticed:

Children's Law Reform Act, R.S.O. 1990, c. C-12, sect. 4 [para. 17].

Authors and Works Noticed:

Australia, Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption: Position Paper Two: Parentage, pp. 15, 17 [para. 16].

Ontario, Law Reform Commission, Report on Family Law (1973), p. 1 [para. 20].

Counsel:

Peter A. Jervis, Jennifer Mathers and Shelby Austin, for the appellant, A.A.;

Alfred A. Mamo and Meysa Maleki, for the respondent, B.B.;

C.C., in person;

Thomas G. Bastedo, Q.C., Amicus Curiae;

Clare E. Burns and Katherine Kavassalis, Office of the Children's Lawyer for D.D.;

Michael A. Menear, Robert W. Staley Ranjan Agarwal, for the intervenor, Alliance for Marriage and Family;

Bradley Berg and Courtney Harris, for the intervenor, Family Service Association of Toronto;

Martha A. McCarthy and Joanna Radbord, for the intervenor, Melissa Drake Rutherford. et al.

This appeal was heard on September 25, 2006, by McMurtry, C.J.O., Labrosse and Rosenberg, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following decision for the court on January 2, 2007.