D.W.H. v. D.J.R. et al., (2013) 556 A.R. 81

• Judge: Picard, Bielby and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 09, 2012
• Citations: (2013), 556 A.R. 81;2013 ABCA 240

D.W.H. v. D.J.R. (2013), 556 A.R. 81; 584 W.A.C. 81 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JL.011

D.W.H. (respondent/plaintiff) v. D.J.R. and D.D. (appellants/defendants)

(1101-0277-AC; 2013 ABCA 240)

Indexed As: D.W.H. v. D.J.R. et al.

Alberta Court of Appeal

Picard, Bielby and O'Ferrall, JJ.A.

July 5, 2013.

Summary:

H. and his same sex partner, R., raised a child, S., from birth. When S. was three, the couple separated. R., who had provided his sperm for the assisted conception of S., and S.'s mother, D., refused access to H. H. sought a contact order under s. 35 of the Family Law Act (Alta.) arguing that, because he stood in loco parentis to S., he was entitled to contact with S. and did not require leave to make the application.

The Alberta Court of Queen's Bench granted leave and dismissed the application. H. appealed.

The Alberta Court of Appeal, in a decision reported at (2007), 412 A.R. 34; 404 W.A.C. 34, allowed the appeal and granted the contact order. Access visits took place. R. obtained a consent order appointing a psychologist to do a parenting assessment. The psychologist recommended that S. have no further contact with H. R. and D. obtained an order, based on their affidavits and the psychologist's report, discontinuing access visits. H. applied again under s. 35 for a contact order.

The Alberta Court of Queen's Bench, in a decision reported at (2009), 478 A.R. 109, allowed H.'s application, ordering that he was to have reasonable and generous access with S. H. applied to become S.'s guardian. As part of that application, H. challenged the constitutional validity of certain sections of the Family Law Act (Alta.) and the Vital Statistics Act (Alta.). H. applied for advance costs so that he could retain counsel to present the constitutional argument appropriately.

The Alberta Court of Queen's Bench, in a decision reported at (2011), 516 A.R. 134, dismissed the application.

The Alberta Court of Queen's Bench, in a decision reported at (2011), 518 A.R. 165, held that s. 13(2) of the Family Law Act (Alta.) discriminated against gay males, contrary to s. 15 of the Charter, by failing to confer a benefit (recognized paternity) that was available to heterosexual couples and forcing gay male parents to resort to legal process to have their guardianship and parentage recognized. The infringement was not saved under a Charter s. 1 analysis. The court would have granted a declaration of invalidity, but, due to intervening amendments, both ss. 12 and 13 of the Act no longer existed. The court granted H. a declaration of parentage regarding S. The court declined to award damages to H. and declined his request for solicitor and client costs. However, the court awarded H., who was self-represented, party and party costs calculated on Column 3 of the tariff. Subsequent to the rendering of the decision, the court was informed that H.'s application was made on the basis of incorrect legislation and that, given the date of the child's birth, the application should have been brought under the Domestic Relations Act (Alta.).

The Alberta Court of Queen's Bench, in supplementary reasons reported at (2011), 528 A.R. 160, held that the Domestic Relations Act (Alta.) discriminated against H. on the basis of gender and sexual orientation, contrary to s. 15 of the Charter. Using its parens patriae jurisdiction, the court declared H. to be both a father and a guardian of the child. R. and D. appealed.

The Alberta Court of Appeal, Bielby, J.A., dissenting, dismissed the appeal.

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 3186

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to present argument - [See Civil Rights - Topic 8380.25 ].

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - H., and his same sex partner, R., raised a child from birth - R. was the child's biological father - After H. and R. separated, H. obtained declarations that he was both a parent and a guardian of the child - The application judge found that the legislation in force at the time of the child's birth, s. 78(1) of the Domestic Relations Act (Alta.), discriminated against H. on the basis of gender and sexual orientation, contrary to s. 15 of the Charter, by failing to recognize him as a parent by the operation of law - The situation was best corrected through the court's parens patriae jurisdiction - R. and the child's biological mother appealed - The Alberta Court of Appeal dismissed the appeal - The court rejected the argument that, in granting declarations of parentage and guardianship that had not been requested in the originating notice of motion, the application judge had impermissibly denied R. an opportunity to present evidence that could have informed the application judge's decision - It had been clear that H. was seeking formal recognition of his parental status - Even if R. had appeared before the judge to oppose the declaration of parentage, he would have had a heavy burden to overcome the conclusion that the declaration was in S.'s best interests - Earlier decisions contained findings regarding the committed nature of H. and R.'s relationship and the fact that H. had cared for S. as a dedicated father throughout the early years of her life - To successfully challenge the appointment of guardianship, R. would have had to have shown that H. had never been S.'s parent - That had also been previously decided - The decision to grant declarations of parentage and guardianship did not warrant the court's intervention - See paragraphs 41 to 55.

Courts - Topic 587

Judges - Duties - To decide according to evidence and pleadings - [See Civil Rights - Topic 8380.25 ].

Courts - Topic 1782

Powers - Guardianship - Courts with parens patriae jurisdiction - H., and his same sex partner, R., raised a child from birth - R. was the child's biological father - After H. and R. separated, H. obtained declarations that he was both a parent and a guardian of the child - The application judge found that the legislation in force at the time of the child's birth, s. 78(1) of the Domestic Relations Act (Alta.), discriminated against H. on the basis of gender and sexual orientation, contrary to s. 15 of the Charter, by failing to recognize him as a parent by the operation of law - The situation was best corrected through the court's parens patriae jurisdiction - R. and the child's biological mother appealed, asserting that the application judge had erred in using her parens patriae jurisdiction - The Alberta Court of Appeal dismissed the appeal - The law required that the parens patriae jurisdiction be invoked to promote the best interests of the child - The application judge's exercise of her jurisdiction was intended to promote S.'s best interests - There was no need for an immediate "risk" to S.'s welfare - As to the suggestion that H. was the beneficiary of the jurisdiction, reading the judge's reasons as a whole showed that she was clearly considering S.'s best interests - There was an incidental benefit to H. - That was permissible - See paragraphs 56 to 63.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction and jurisdiction to stay an action) - [See Courts - Topic 1782 ].

Guardian and Ward - Topic 215

Appointment and qualifications of guardian - Of children - Jurisdiction (incl. who may apply) - [See Courts - Topic 1782 ].

Guardian and Ward - Topic 229

Appointment and qualifications of guardian - Of children - Evidence and proof - [See Civil Rights - Topic 8380.25 ].

Infants - Topic 2503.1

Parentage of children - General - Determination of parentage - Evidence - [See Civil Rights - Topic 8380.25 ].

Infants - Topic 6044

Legal proceedings - Jurisdiction - Common law or inherent jurisdiction of courts (parens patriae) - [See Courts - Topic 1782 ].

Cases Noticed:

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 19].

A.A. v. B.B. et al. (2007), 368 N.R. 384; 220 O.A.C. 115; 83 O.R.(3d) 561; 2007 ONCA 2, refd to. [para. 23].

Dikranian v. Quebec (Attorney General), [2005] 3 S.C.R. 530; 342 N.R. 1; 2005 SCC 73, refd to. [para. 30].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 40].

Van De Perre v. Edwards - see K.V.P. v. T.E.

Zaharia v. Sharkey, 2000 ABQB 308, refd to. [paras. 42, 78].

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. 58].

E. v. Eve - see Eve, Re.

Beson et al. v. Director of Child Welfare (Nfld.), [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. 59].

H., Re; P., Re (1992), 127 A.R. 218; 20 W.A.C. 218; 2 Alta. L.R.(3d) 142; 1992 ABCA 98, refd to. [para. 59].

Alberta (Child Welfare) v. B.D. - see H., Re; P., Re.

Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation) et al. (2012), 522 A.R. 159; 544 W.A.C. 159; 2012 ABCA 36, refd to. [para. 78].

Hicks v. Kennedy (1957), 6 D.L.R.(2d) 567; 20 W.W.R.(N.S.) 517 (Alta. T.D.), refd to. [para. 78].

J.U. v. Regional Director of Child Welfare (Alta.) et al. (2001), 281 A.R. 396; 248 W.A.C. 396; 2001 ABCA 125, refd to. [para. 83].

Paniccia Estate et al. v. Toal (2012), 539 A.R. 349; 561 W.A.C. 349; 2012 ABCA 397, refd to. [para. 86].

Counsel:

D.W.H., the respondent/plaintiff, in person;

E.L. Lenz, Q.C., for the appellant, D.J.R.

This appeal was heard on November 9, 2012, by Picard, Bielby and O'Ferrall, JJ.A., of the Alberta Court of Appeal. On July 5, 2013, the court's memorandum of judgment was released with the following opinions:

Picard and O'Ferrall, JJ.A. - see paragraphs 1 to 70;

Bielby, J.A., dissenting - see paragraphs 71 to 88.