C.E.P. v. G.V., (1993) 108 Sask.R. 183 (QB)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 08, 1993
• Jurisdiction: Saskatchewan
• Citations: (1993), 108 Sask.R. 183 (QB)

C.E.P. v. G.V. (1993), 108 Sask.R. 183 (QB)

MLB headnote and full text

C.E.P. (a.k.a. C.E.F.) (petitioner) v. G.V. (respondent)

(1992 Q.B. No. 281)

Indexed As: C.E.P. v. G.V.

Saskatchewan Court of Queen's Bench

Judicial Centre of Swift Current

Barclay, J.

March 8, 1993.

Summary:

A commonlaw couple separated and executed a separation agreement under the Children of Unmarried Parents Act (CUPA) (now repealed). The agreement gave custody of the couple's child to the mother and provided that the father would pay monthly child maintenance. The mother subsequently applied for an order under the Family Main­tenance Act to increase the amount of main­tenance. The father argued that s. 36 of CUPA prevented the mother from taking legal proceedings against him while he was not in default of the agreement.

The Saskatchewan Court of Queen's Bench held that s. 36 of CUPA was contrary to s. 15(1) of the Charter and did not prohibit the mother from bringing the application. The court directed a trial to determine the amount of maintenance.

Civil Rights - Topic 5660.6

Equality and protection of the law - Par­ticular cases - Children of unmarried parents legislation - A commonlaw couple executed a separation agreement under the Children of Unmarried Parents Act (CUPA) (now repealed) - The agree­ment gave custody of the couple's child to the mother and provided that the father would pay monthly child support - The mother subsequently applied under the Family Maintenance Act (FMA) to increase the amount of child support - The father argued that s. 36 of CUPA prevented the mother from taking legal proceedings while he was not in default of the agree­ment - The Saskatchewan Court of Queen's Bench held that s. 36 discrimi­nated against illegitimate children and unwed mothers contrary to s. 15(1) of the Charter and was void and of no effect against the mother.

Civil Rights - Topic 5660.6

Equality and protection of the law - Par­ticular cases - Children of unmarried parents legislation - Section 36 of the Children of Unmarried Parents Act (now repealed) provided that where a father or alleged father entered into an agreement to provide for the maintenance and education of a child, no proceedings could be insti­tuted under the Act or continued against the father while he was not in default of the agreement - The Saskatchewan Court of Queen's Bench held that s. 36 dis­criminated against illegitimate children and unwed mothers and violated s. 15(1) of the Charter, because a parent who had been married could apply at any time for a variation of corollary relief.

Statutes - Topic 6903

Operation and effect - Repeal - Preserva­tion of rights acquired or accrued under repealed statute - The Saskatchewan Court of Queen's Bench stated that if amending legislation is intended to affect rights accrued under the old legislation, it must state that intention clearly - See paragraph 12.

Cases Noticed:

Penner v. Danbrook (1991), 96 Sask.R. 290 (Q.B.), refd to. [para. 11].

Corcoran v. Baker (1992), 99 Sask.R. 253 (Q.B.), refd to. [para. 13].

R. v. Wolverine, [1987] 3 W.W.R. 475; 59 Sask.R. 22 (Q.B.), refd to. [para. 16].

Andrews v. Law Society of British Col­umbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 22].

Surrette et al. v. Harris Estate (1989), 91 N.S.R.(2d) 418; 233 A.P.R. 418 (T.D.), refd to. [para. 25].

Milne (Doherty) and Milne v. Alberta (Attorney General), Director of Mainten­ance and Recovery and Stadnyk, [1990] 5 W.W.R. 650 (Alta. Q.B.), refd to. [para. 26].

D.S.W. v. R.H., [1989] 2 W.W.R. 481; 71 Sask.R. 66 (C.A.), refd to. [para. 29].

Christante v. Schmitz, [1990] 4 W.W.R. 744; 83 Sask.R. 60 (Q.B.), refd to. [para. 31].

Thomson v. Thomson (1988), 69 Sask.R. 62 (C.A.), refd to. [para. 36].

Pelech v. Pelech, [1987] 1 S.C.R. 801; [1987] 4 W.W.R. 481; 76 N.R. 81; 7 R.F.L.(3d) 225; 14 B.C.L.R.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, refd to. [para. 36].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304; 38 D.L.R.(4th) 699; 17 C.P.C.(2d) 699, refd to. [para. 36].

Gorzen v. Litz, [1988] 4 W.W.R. 763; 66 Sask.R. 211 (C.A.), refd to. [para. 37].

G. (T.L.) v. L. (D.) - see Gorzen v. Litz.

MacVicar and Superintendent of Family & Child Services et al., Re (1986), 34 D.L.R.(4th) 488 (B.C.S.C.), refd to. [para. 39].

D.T., Re (1992), 111 N.S.R.(2d) 430; 303 A.P.R. 430; 91 D.L.R.(4th) 230 (T.D.), refd to. [para. 42].

C.E.S. and J.M.S. v. Ontario (Attorney General) and Nevins, P.C.J.F.D. et al. (1988), 28 O.A.C. 132; 49 D.L.R.(4th) 469 (Div. Ct.), refd to. [para. 42].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 48].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 21].

Children of Unmarried Parents Act, R.S.S. 1978, c. C-8, sect. 36 [para. 8].

Family Maintenance Act, S.S. 1990-91, c. F-6.1, sect. 28 [para. 10].

Authors and Works Noticed:

Craies on Statute Law (6th Ed. 1963), pp. 386-387 [para. 12].

Counsel:

Jacelyn A. Ryan, for the petitioner;

Roderick E. MacDonald, for the respon­dent.

This case was heard before Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Swift Current, who delivered the following judgment on March 8, 1993.