D.D.S. v. R.H., (1993) 141 A.R. 44 (CA)

• Judge: Harradence, Bracco and Côté, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 28, 1993
• Citations: (1993), 141 A.R. 44 (CA)

D.D.S. v. R.H. (1993), 141 A.R. 44 (CA);

         46 W.A.C. 44

MLB headnote and full text

The Director of the Parentage and Maintenance Act on behalf of D.D.S. (applicant/appellant) v. R.H. (respondent)

(Appeal No. 12971)

Indexed As: D.D.S. v. R.H.

Alberta Court of Appeal

Harradence, Bracco and Côté, JJ.A.

May 28, 1993.

Summary:

A child was born in 1984. An action for paternity and support had to be commenced within two years of birth (Maintenance and Recovery Act). No action was commenced. In 1991, the provisions of the Maintenance and Recovery Act were repealed and replaced by the Parentage and Maintenance Act. The new Act established a different limitation period (alleged father's death or child's 18th birthday). The mother applied under the new Act for support from the alleged father.

The Alberta Court of Queen's Bench dis­missed the application, because it was barred by the limitation period in the former Act. The mother appealed.

The Alberta Court of Appeal, Bracco, J.A., dissenting, dismissed the appeal. The expir­ation of the limitation period under the former Act created a vested right not to be sued and there was a presumption against a statute taking away vested rights.

Infants - Topic 2569

Illegitimate children - Support and other claims - Limitation of actions - A child was born in 1984 - An action for support had to be commenced within two years of birth (Maintenance and Recovery Act) - No action was commenced - In 1991, the provisions of the Maintenance and Recov­ery Act were repealed and replaced by the Parentage and Maintenance Act - The new Act established a different limitation period (alleged father's death or child's 18th birthday) - The mother applied under the new Act for support from the alleged father - The trial judge dismissed the application, because it was barred by the limitation period in the former Act - The mother appealed - The Alberta Court of Appeal dismissed the appeal - The expir­ation of the limitation period under the former Act created a vested right not to be sued and there was a presumption against a statute taking away vested rights.

Statutes - Topic 2263

Interpretation - Presumptions - Presump­tion against interference with vested rights - [See Infants - Topic 2569 ].

Statutes - Topic 6903

Operation and effect - Commencement, duration and repeal - Repeal - Preserva­tion of rights acquired or accrued under repealed statute - [See Infants - Topic 2569 ].

Cases Noticed:

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, dist. [para. 4].

Angus v. Hart and Angus and Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; 87 N.R. 200; 30 O.A.C. 210; 9 M.V.R.(2d) 245, refd to. [para. 5].

Smolak v. Necula, [1974] 1 W.W.R. 1 (Alta. C.A.), refd to. [para. 9].

Perrie v. Martin, [1986] 1 S.C.R. 41; 64 N.R. 195; 12 O.A.C. 269; 24 D.L.R.(4th) 1, refd to. [para. 10].

Tweed v. Newton (1991), 32 R.F.L.(3d) 400 (B.C.S.C.), disagreed with [para. 26].

Bagaric v. Juric and Bagaric (1984), 2 O.A.C. 35; 5 D.L.R.(4th) 78 (C.A.), refd to. [para. 28].

Anderton v. Soroka, [1925] 1 W.W.R. 1019 (Alta. C.A.), dist. [para. 35].

Corcoran v. Baker (1992), 99 Sask.R. 253 (Q.B.), refd to. [para. 36].

K.M. v. H.M. (1992), 142 N.R. 321; 57 O.A.C. 321 (S.C.C.), dist. [para. 47].

Milne v. Alberta (Attorney General), [1990] 5 W.W.R. 650 (Alta. Q.B.), refd to. [para. 76].

Phillips v. Eyre (1870), L.R. 6 Q.B. 1 (Ex. Ct.), refd to. [para. 85].

Howard Smith Paper Mills v. R., [1957] S.C.R. 403, refd to. [para. 85].

R. v. Vine (1875), L.R. 10 Q.B. 195, refd to. [para. 86].

Solicitor's Clerk, Re, [1957] 3 All E.R. 617, refd to. [para. 86].

Barry and Brosseau v. Alberta Securities Commission (1986), 67 A.R. 222 (C.A.), affd. [1989] 1 S.C.R. 301, refd to. [para. 87].

Royal Canadian Mounted Police Act, Re (1990), 123 N.R. 120 (F.C.A.), refd to. [para. 89].

Zamzow v. Lindup (1986), 9 B.C.L.R.(2d) 74 (S.C.), refd to. [para. 99].

Barlow v. Barlow (1978), 8 R.F.L.(2d) 6 (Ont. Prov. Ct.), refd to. [para. 99].

Statutes Noticed:

Interpretation Act, R.S.A. 1980, c. I-7, sect. 10 [para. 75]; sect. 31(1) [para. 24].

Maintenance and Recovery Act, R.S.A. 1980, c. M-2, sect. s. 14(1) [para. 66].

Parentage and Maintenance Act, S.A. 1990, c. P-0.7, sect. 7(2)(b) [para. 71]; sect. 13 [para. 60]; sect. 15(3)(a) [para. 67]; sect. 25 [para. 38].

Rules of Court (Alta.), rule 11 [para. 38].

Authors and Works Noticed:

Alberta, Hansard (1990), 22nd Legislature, 2nd Session, vol. 3, pp. 1760-1761 [para. 70].

Chayko, Forensic Evidence in Canada (1991), c. 12, pp. 320-343, 348-349 [para. 59].

Craies on Statute Law (7th Ed. 1971), p. 396 [para. 85].

Driedger, E.A., Statutes: Retroactive Ret­rospective Reflections (1978), 56 Can. Bar Rev. 264, generally [para. 88].

Ellman and Kaye, Article on HLA Testing for Paternity (1979), 54 N.Y.U.L.S. 1131, generally [para. 59].

Counsel:

J. Nicholson, for the appellant;

S.J. Clark, for the respondent.

This appeal was heard before Harradence, Bracco and Côté, JJ.A., of the Alberta Court of Appeal.

The judgment of the Court of Appeal was delivered on May 28, 1993, and the follow­ing opinions were filed:

Côté, J.A. (Harradence, J.A., concurring) - see paragraphs 1 to 62;

Bracco, J.A., dissenting - see paragraphs 63 to 110.