J.F.M. v. V.P. et al., 2004 ABQB 208

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 17, 2004
• Citations: 2004 ABQB 208;(2004), 366 A.R. 239 (QB)

J.F.M. v. V.P. (2004), 366 A.R. 239 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. AP.142

J.F.M. (plaintiff) v. V.P., D.B. and T.A. (defendants)

(0303 01017; 2004 ABQB 208)

Indexed As: J.F.M. v. V.P. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

March 17, 2004.

Summary:

The defendants applied for adoption of an infant. The plaintiff (biological father) opposed the adoption. He sought guardianship and custody of the infant. He also raised the constitutionality of s. 50 of the Domestic Relations Act, alleging that it infringed s. 15 of the Charter.

The Alberta Court of Queen's Bench held it was not in the infant's best interests to grant guardianship or custody to the plaintiff and granted the adoption. The court stated that "had it been necessary to do so", it would have found that s. 50 of the Domestic Relations Act infringed s. 15 of the Charter and was not saved by s. 1.

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.

Editor's note: for related cases, see 347 A.R. 243; [2003] A.R. Uned. 655 (Q.B.); [2003] A.R. Uned. 740 (Q.B.); [2003] A.R. Uned. 741 (Q.B.); and [2003] A.R. Uned. 786 (Q.B.).

Civil Rights - Topic 925

Discrimination - Marital status - Common law relationships - Section 50(1)(b)(iii) of the Domestic Relations Act provided that a father was a guardian of a minor child if "the father cohabited with the mother for at least one year immediately before the birth of the child" - The plaintiff father, who had not cohabited with his child's mother that long, argued that s. 50 discriminated against him on the basis of sex and marital status - The Alberta Court of Queen's Bench opined that s. 50 breached s. 15 of the Charter - It drew a distinction between the plaintiff and others on both the enumerated ground of sex and the analogous ground of marital status - That distinction was discriminatory in the sense that it affected the plaintiff's interests in a way that would be perceived to be harmful to his dignity - Guardianship, which included the right to consent to adoption, as well as the right to make decisions relating to the care and upbringing of the child, was an important parental right - Section 50 was not saved by s. 1 of the Charter as a reasonable limit - There were less intrusive means to meet the objectives of the legislation - See paragraphs 32 to 77.

Civil Rights - Topic 1066

Discrimination - By sex - What constitutes - [See Civil Rights - Topic 925 ].

Civil Rights - Topic 5660.6

Equality and protection of the law - Particular cases - Children of unmarried parents legislation - [See Civil Rights - Topic 925 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 925 ].

Family Law - Topic 1888

Custody and access - Considerations in awarding custody - Separation of siblings -The defendants applied for adoption of an infant (16 months old) - The plaintiff biological father opposed the adoption and sought guardianship and custody of the infant - He lived only briefly with the birth mother - They separated before the infant was born - He was unable to care for the child - His employment was irregular and unsteady - He currently worked seven days a week - His living accommodations were unsuitable - He had a grade eight education - The defendants had cared for the infant since birth - They were loving parents - They had flexible work schedules, an extensive social circle, extended family, financial security and were well educated -The infant had developed a relationship with a sibling in this family - The Alberta Court of Queen's Bench held that it was not in the infant's best interests to grant guardianship or custody to the plaintiff - See paragraphs 25 to 31.

Family Law - Topic 1889

Custody and access - Considerations in awarding custody - Capacity or conditions of parents - [See Family Law - Topic 1888 ].

Family Law - Topic 1893

Custody and access - Considerations in awarding custody - Contest between parents and nonparents - [See Family Law - Topic 1888 ].

Cases Noticed:

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 11 C.C.C.(3d) 481; 9 D.L.R.(4th) 161; 8 C.R.R. 193, refd to. [para. 17].

Glassco and Quebec (Attorney General) v. Cumming, [1978] 2 S.C.R. 605; 22 N.R. 271, refd to. [para. 17].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 17].

W.D. v. G.P. (1984), 54 A.R. 161 (C.A.), refd to. [para. 21].

King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275; [1985] 3 W.W.R. 1; 44 R.F.L.(2d) 113; 16 D.L.R.(4th) 576, refd to. [para. 22].

K.K. v. G.L. and B.J.L. - see King v. Mr. and Mrs. B.

King v. Low - see King v. Mr. and Mrs. B.

A.B. v. G.J.B. (2001), 286 A.R. 395; 253 W.A.C. 395 (C.A.), refd to. [para. 23].

Racine and Racine v. Woods, [1983] 2 S.C.R. 173; 48 N.R. 362; 24 Man.R.(2d) 314; [1981] 1 W.W.R. 1; 36 R.F.L.(3d) 1, refd to. [para. 29].

Tearoe et al. v. Sawan (1993), 32 B.C.A.C. 133; 53 W.A.C. 133 (C.A.), refd to. [para. 29].

J.F.T. v. C.A.S. - see Tearoe et al. v. Sawan.

J.W.S. v. N.C.M., [1993] A.J. No. 1100 (Q.B.), refd to. [para. 29].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 36].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 36].

Brebric v. Niksic (2002), 163 O.A.C. 92; 215 D.L.R.(4th) 643 (C.A.), refd to. [para. 38].

Hepton v. Maat, [1957] S.C.R. 606, refd to. [para. 46].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1; 9 R.F.L.(4th) 157; 122 D.L.R.(4th) 1, refd to. [para. 46].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena, B., Re.

D.F.G. v. Child and Family Services of Winnipeg Northwest, [1997] 3 S.C.R. 925; 219 N.R. 241; 121 Man.R.(2d) 241; 158 W.A.C. 241, refd to. [para. 51].

S.M.C., Re (2001), 298 A.R. 163; 2001 ABQB 687, refd to. [para. 51].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693; 13 R.F.L.(4th) 1, refd to. [para. 51].

N.M. v. Superintendent of Child and Family Services (B.C.) (1986), 10 B.C.L.R.(2d) 234 (S.C.), refd to. [para. 52].

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; 64 O.R.(2d) 311 (Div. Ct.), red to. [para. 53].

T.D. v. Children's Aid Society and Family Services of Colchester County (1992), 113 N.S.R.(2d) 74; 309 A.P.R. 74; 92 D.L.R.(4th) 289 (C.A.), refd to. [para. 54].

Harvey v. New Brunswick (Attorney General) et al., [1996] 2 S.C.R. 876; 201 N.R. 1; 178 N.B.R.(2d) 161; 454 A.P.R. 161, refd to. [para. 65].

D.W.T. v. British Columbia (Attorney General) et al., [2003] 1 S.C.R. 835; 304 N.R. 201; 183 B.C.A.C. 1; 301 W.A.C. 1, refd to. [para. 69].

Statutes Noticed:

Domestic Relations Act, R.S.A. 2000, c. D-14, sect. 50(1) [para. 35].

Authors and Works Noticed:

Alberta Law Reform Institute, Status of Children: Revised Report (1991), p. 7 [para. 57].

Counsel:

The plaintiff appeared on his own behalf;

J. Todd Van Vliet (St. Pierre & Van Vliet), for the defendants/petitioners;

Alice K. Barnsley, Alberta Justice, Civil Law Branch, for the Attorney General of Alberta.

This application was heard before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 17, 2004.