D.W.H. v. D.J.R. et al., 2009 ABQB 438

• Judge: Eidsvik, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 16, 2009
• Citations: 2009 ABQB 438;(2009), 478 A.R. 109 (QB)

D.W.H. v. D.J.R. (2009), 478 A.R. 109 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JL.075

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

(FL01 01406; 2009 ABQB 438)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Eidsvik, J.

July 16, 2009.

Summary:

H. and his same sex partner, R., raised a child, S.,  from birth. When the child was three, the couple separated. R., who had provided his sperm for the assisted conception of the child, and the child's mother, D., refused access to H. H. sought a contact order under s. 35 of the Family Law Act (Alta., 2003) arguing that, because he stood in loco parentis to the child, he was entitled to contact with the child 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 (CA); 404 W.A.C. 34; 2007 ABCA 57, 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 allowed H.'s application, ordering that he was to have reasonable and generous access with S.

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.

Family Law - Topic 1812

Custody and access - General - Persons in loco parentis - H. and R., two men in a committed interdependent adult relationship, wanted to have children - D., a woman who was in a similar relationship with another woman, agreed to bear a child for H. and R. using R.'s sperm - The child, S., was born in 2003 - S. lived with H. and R. - D. had regular access - After H. and R. separated in 2006, R. and D. refused to allow H. access to S. - H. obtained a contact order under s. 35 of the Family Law Act as a person standing in place of a parent - 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. because it would be "exhausting and confusing" for S. and would reduce the security that S. had with her parents, R. and D. - 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 - It was conceded that H. was in loco parentis to S. - The Alberta Court of Queen's Bench allowed H.'s application - H. was to have reasonable and generous access with S. - Under s. 35(5) of the Act, a contact order was available where contact was in the child's best interests, the child's health might be jeopardized if contact was denied and the guardians' denial of contact was unreasonable - The court gave little weight to the psychologist's report, disagreeing with the assumption underlying the report and with many of the factual assumptions - The psychologist had failed to change her analytical paradigm of the traditional nuclear family to account for the gay and lesbian family situation - The original nuclear family here was that of two primary parents, H. and R. - There was a mother who had access, but no parenting role - S. knew H. during her formative first three years, loved him as a "Papa" and missed him when he left - There was no reason why this relationship could not be reestablished - Access visits with H. were in S.'s best interests - Further, S.'s emotional health might be jeopardized without them - She had been torn away from someone who had played an integral part in her conception, birth and early life - Finally, R. and D.'s denial of access, based on R.'s desire to "get on with his life and not have Mr. H. interfere" and D.'s concern that S. would be "torn in three", was unreasonable - See paragraphs 65 to 108.

Family Law - Topic 1812

Custody and access - General - Persons in loco parentis - H. and R., two men in a committed interdependent adult relationship, wanted to have children - D., a woman who was in a similar relationship with another woman, agreed to bear a child for H. and R. using R.'s sperm - The child, S., was born in 2003 - S. lived with H. and R. - D. had regular access - After H. and R. separated in 2006, R. and D. refused to allow H. access to S. - H. sought a contact order under s. 35 of the Family Law Act as a person standing in place of a parent - It was conceded that H. was in loco parentis to S. - The Alberta Court of Queen's Bench, in allowing H.'s application, agreed with H. that there was a gap in the legislation regarding the situation where it was necessary to deem fatherhood when the relationship was homosexual - Under the Act, D. was the only "mother" as she had given birth to S. - The parties had assumed that R. was the "father" because he was the biological father and was registered as the father on S.'s birth certificate - However, under s. 13(3) of the Act, in an assisted conception, as here, the "male person whose sperm" was used was "not the father" of the resulting child and acquired no parenting rights - The presumption of fatherhood under s. 8 (registration as the father) did not apply - The specificity of s. 13 overruled the generality of the s. 1 (biological father) definition because to hold otherwise would make all sperm donors fathers - Since R. was not the legal father, the normal presumptions that arose under s. 20 for guardianship rights to parents did not apply - However, R., like H., had stood in the place of a parent to S. and had the same rights and obligations as such - This left the court with the novel situation where the child, S., had a mother who was the only legal guardian under the Act, but was not a custodial parent - Accordingly, in analyzing the access application, the court applied the common law test for access as if both H. and R. were legal fathers, assuming that, absent evidence to the contrary, access to H. was in S.'s best interests - See paragraphs 71 to 87.

Family Law - Topic 2152

Custody and access - Evidence - Psychological assessment - [See first Family Law - Topic 1812 ].

Statutes - Topic 2607

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Special provision versus general provision - [See second Family Law - Topic 1812 ].

Cases Noticed:

A.A. v. B.B. et al. (2007), 220 O.A.C. 115; 278 D.L.R.(4th) 519 (C.A.), refd to. [para. 60].

Director of Child and Family Services (Man.) v. A.C. et al. (2009), 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 69].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 71].

Theriault v. Theriault (1994), 149 A.R. 210; 63 W.A.C. 210 (C.A.), refd to. [para. 71].

B.B. v. L.D. (2002), 313 A.R. 291; 2002 ABQB 429, refd to. [para. 71].

Jane Doe et al. v. Alberta (2007), 404 A.R. 153; 394 W.A.C. 153; 2007 ABCA 50, refd to. [para. 79].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 82].

Vriend et al. v. Alberta (1998), 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237 (S.C.C.), refd to. [para. 82].

N.F. v. H.L.S. (1999), 127 B.C.A.C. 66; 207 W.A.C. 66; 1999 CarswellBC 1398 (C.A.), refd to. [para. 87].

Chapman v. Chapman (2001), 141 O.A.C. 389 (C.A.), refd to. [para. 87].

G.E.S. v. D.L.C. (2006), 285 Sask.R. 19; 378 W.A.C. 19; 2006 SKCA 79, refd to. [para. 87].

G.D. v. G.M. (1999), 47 R.F.L.(4th) 16 (N.W.T.S.C.), refd to. [para. 100].

Statutes Noticed:

Family Law Act, S.A. 2003, c. F-4.5, sect. 13 [para. 61]; sect. 35 [para. 57].

Counsel:

Daniel J. Aberle (Stirling, Aberle & Row), for the plaintiff;

Laurie E. Allen (Laurie Allen & Associates), for the defendants.

This application was heard on May 19-22 and June 22 and 23, 2009, by Eidsvik, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on July 16, 2009.