M.J.C. v. H.G., (1998) 217 A.R. 148 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 04, 1998
• Citations: (1998), 217 A.R. 148 (QB);1998 ABQB 67

M.J.C. v. H.G. (1998), 217 A.R. 148 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. MR.040

M.J.C. (appellant) v. H.G. (respondent)

(9703-04629; 1998 ABQB 67)

Indexed As: M.J.C. v. H.G.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

March 4, 1998.

Summary:

At issue was the custody of a 4 year old child. The mother and father never married. The father brought an application in the Provincial Court for custody under s. 32 of the Domestic Relations Act. The father was granted custody with specified access to the mother. The mother appealed.

The Alberta Court of Queen's Bench 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.

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - A mother appealed a custody order, asserting that the trial judge demonstrated bias or inappropriate judicial intervention - The judge had taken an active role in questioning witnesses, particularly those called by the mother - The Alberta Court of Queen's Bench held that the trial judge did not demonstrate bias or inappropriate judicial intervention - Although he asked numerous questions, he did not exceed the acceptable limits of judicial intervention because his intervention was necessary to clarify the testimony that was often found to be vague, confusing and inconsistent - See paragraphs 61 to 63.

Courts - Topic 8426

Provincial courts - Alberta - Provincial Court - Family Division - Custody and access to children - [See Family Law - Topic 1827 ].

Family Law - Topic 1827

Custody and access - Right to custody - Rights of a natural father - A father brought an application in the Provincial Court for custody of his child under s. 32 of the Domestic Relations Act - The father neither qualified as a joint legal guardian under s. 47(1)(b)(iii), nor obtained a declaration of parentage nor a private guardianship order - At issue was whether the father had standing to bring his application in the Provincial Court - The Alberta Court of Queen's Bench held that the father had standing - Guardianship was a prerequisite for making a s. 32 application - However, the Provincial Court had jurisdiction to deem the father a guardian notwithstanding that s. 47(1)(b)(iii) conditions had not been met - In this case, the Provincial Court had jurisdiction to hear the custody application where it had deemed the father a guardian - See paragraphs 37 to 57.

Family Law - Topic 2182

Custody and access - Practice - Persons entitled to apply - [See Family Law - Topic 1827 ].

Guardian and Ward - Topic 114

Right to guardianship - Of children - Illegitimate children - Section 47(1)(b)(iii) of the Domestic Relations Act provided that the joint guardians of a minor child were the mother and the father if he cohabitated with the mother for a least one year immediately before the child's birth - A mother and father were not living together three to six weeks prior to their child's birth - The Alberta Court of Queen's Bench held that the father was not a joint guardian - The requirement that cohabitation exist "immediately" before the child's birth necessitated a consideration of the duration and the quality of the parties' relationship after the mother moved out - It could not be said that there was no interval of time or no delay between the mother moving out and the child's birth - Furthermore, the quality of the relationship showed an even lesser indication of cohabitation - See paragraphs 30 to 25.

Guardian and Ward - Topic 2302

Joint guardians - General - What constitutes - [See Guardian and Ward - Topic 114 ].

Cases Noticed:

Sakata (Leo) Electronics (Canada) v. McIntyre (1995), 44 C.P.C.(3d) 75 (Ont. Gen. Div.), refd to. [para. 32].

W.D. v. G.P. (1984), 54 A.R. 161; 32 Alta. L.R.(2d) 232 (C.A.), refd to. [para. 37].

R.S. v. A.L. (1994), 158 A.R. 227 (Q.B.), refd to. [para. 37].

Polny v. Polny, [1991] A.J. No. 1197 (Q.B.), refd to. [para. 39].

O'Neill v. Drummond (1986), 68 A.R. 394; 50 R.F.L.(2d) 310 (Q.B.), refd to. [para. 39].

Board v. Board (1919), 48 D.L.R. 13 (Alta. Prov. Ct.), refd to. [para. 39].

Knight v. Knight and Herringer (1992), 132 A.R. 341 (Prov. Ct.), refd to. [para. 39].

Hanon v. Bolander, [1993] A.J. No. 1040 (Prov. Ct.), refd to. [para. 39].

C.V. v. J.L. (1995), 166 A.R. 352 (Prov. Ct. Fam. Div.), refd to. [para. 39].

Cardinal v. Cardinal (1988), 62 Alta. L.R.(2d) 66 (Q.B.), refd to. [para. 40].

R.A.C. v. M.M. (1988), 93 A.R. 8 (Q.B.), refd to. [para. 41].

H.J.L. v. L.A. and R.D.A. (1986), 69 A.R. 243; 26 D.L.R.(4th) 615; 45 Alta. L.R.(2d) 125 (C.A.), refd to. [para. 41].

R.B.F. v. K.G. (1993), 147 A.R. 376 (Prov. Ct. Fam. Div.), refd to. [para. 44].

A.W. v. K.S. (1995), 183 A.R. 147 (Prov. Ct.), refd to. [para. 45].

H.A.D. and R.M.D. v. N.C.M. (1993), 145 A.R. 200; 55 W.A.C. 200; 12 Alta. L.R.(3d) 379 (C.A.), refd to. [para. 47].

Langdon v. York (1994), 161 A.R. 279; 25 Alta. L.R.(3d) 378 (Q.B.), refd to. [para. 48].

Kastning v. Charles et al. (1987), 80 A.R. 150; 54 Alta. L.R.(2d) 260; 8 R.F.L.(3d) 147 (Q.B.), refd to. [para. 53].

G.D.G. v. B.H.K. (1992), 136 A.R. 324 (Prov. Ct. Fam. Div.), refd to. [para. 53].

Hildebrand et al. v. Jacobson (1993), 137 A.R. 134 (Prov. Ct. Fam. Div.), refd to. [para. 53].

Walker v. Smith (D.) (1987), 87 A.R. 65 (Q.B.), refd to. [para. 53].

V.F. v. J.L. et al. (1994), 163 A.R. 1 (Prov. Ct.), refd to. [para. 53].

R.S. v. A.L. (1994), 158 A.R. 227 (Q.B.), refd to. [para. 53].

Kastner v. Kastner (1990), 109 A.R. 241; 28 R.F.L.(3d) 189 (C.A.), refd to. [para. 60].

Yuill v. Yuill, [1945] 1 All E.R. 183 (C.A.), refd to. [para. 62].

Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.), refd to. [para. 62].

Statutes Noticed:

Domestic Relations Act, R.S.A. 1980, c. P-20, sect. 32(1), sect. 32(2), sect. 47(1)(b)(iii) [para. 26].

Authors and Works Noticed:

Concise Oxford Dictionary (9th Ed. 1995) [paras. 30, 31].

Webster's New World Dictionary (2nd College Ed.) [paras. 30, 31].

Counsel:

Bruce Knight (Knight Law Office), for the appellant;

Donnon F. Revering (Hall & Revering), for the respondent.

This appeal was heard before Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 4, 1998.