Massingham-Pearce v. Konkolus, (1995) 170 A.R. 10 (QB)

• Judge: Roslak, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 26, 1995
• Citations: (1995), 170 A.R. 10 (QB)

Massingham-Pearce v. Konkolus (1995), 170 A.R. 10 (QB)

MLB headnote and full text

Stephanie Irene Massingham-Pearce (applicant) v. Donald Michael Konkolus (respondent)

(Action No. 8203-41780)

Indexed As: Massingham-Pearce v. Konkolus

Alberta Court of Queen's Bench

Judicial District of Edmonton

Roslak, J.

April 26, 1995.

Summary:

An illegitimate child received support from her father under the Parentage and Mainte­nance Act. Support under the Act (s. 16(2)(c)) terminated at age 18. The child claimed that s. 16(2)(c) violated her equality rights under s. 15 of the Charter. The child also claimed that provisions of the Mainte­nance Order Act, the Domestic Relations Act and the Divorce Act violated s. 15.

The Alberta Court of Queen's Bench allowed the application in part. The age limit for support under the Parentage and Main­tenance Act and the Domestic Relations Act did not violate s. 15. Section 1(a) of the Maintenance Order Act violated s. 15 and was not a reasonable limit prescribed by law under s. 1 of the Charter. Sections 27(2) and 27(7) of the Domestic Relations Act violated equality rights. Section 27(2) was saved by s. 1 of the Charter, but s. 27(7) was not. The Divorce Act definition of "child of the mar­riage" did not violate s. 15.

Civil Rights - Topic 5666.1

Equality and protection of the law - Child support legislation - Section 16(2)(c) of the Parentage and Maintenance Act ter­minated support for illegitimate children at age 18 - An illegitimate child claimed s. 16(2)(c) violated her equality rights under s. 15(1) of the Charter, because she, unlike legitimate children, was unable to seek maintenance after age 18 - The Alberta Court of Queen's Bench stated that s. 16(2)(c) did not discriminate on the basis of legitimacy, it made a distinction based on age - However, s. 16(2)(c) was not discriminatory - The court stated that the ending of an absolute right to child support based upon an age when children would be able to fend for themselves did not violate s. 15 - See paragraphs 12 to 18.

Civil Rights - Topic 5666.1

Equality and protection of the law - Child support legislation - Section 1(a) of the Maintenance Order Act excluded an ille­gitimate child from the definition of "child", precluding them from even apply­ing for support under the Act - The Alberta Court of Queen's Bench stated that illegitimacy plus youth and illegitimacy plus an inabil­ity to support oneself were analogous grounds of discrimination under s. 15 of the Charter - The court did not rule on whether illegitimacy, by itself, was an analogous ground - Section 1(a) of the Act violated s. 15 and was not a reason­able limit prescribed by law under s. 1 of the Charter - The appropriate remedy was to "read in" to the s. 1(a) definition of "child" wording to include illegit­imate children - See paragraphs 28 to 54.

Civil Rights - Topic 5666.1

Equality and protection of the law - Child support legislation - Section 56(5) of the Domestic Relations Act provided for maintenance for legitimate and illegitimate children, but terminated the obligation at age 18 - An illegitimate child over 18 years of age submitted that s. 56(5) dis­criminated on the basis of age - The Alberta Court of Queen's Bench stated that s. 56(5) did not violate equality rights under s. 15 of the Charter - The court stated that the ending of an absolute right to child support based upon an age when children would be able to fend for them­selves did not violate s. 15 - See para­graphs 55 to 57.

Civil Rights - Topic 5666.1

Equality and protection of the law - Child support legislation - Section 27(2) of the Domestic Relations Act provided that a married person deserted by his or her spouse had a right to apply for support from the deserting spouse - An illegit­imate child whose parents were never married claimed s. 27(2) violated her equality rights under s. 15 of the Charter - The Alberta Court of Queen's Bench stated that s. 27(2) drew a distinction against all illegitimate children, thereby discriminating against them contrary to s. 15 - However, s. 27(2) was saved as a reasonable limit prescribed by law under s. 1 of the Charter - A statutory scheme giving a deserted spouse a right to payment from the desert­ing spouse was rationally connected to the objective of financially protecting the deserted spouse from the consequences of the desertion - Because only married persons were afforded protection, the rights of illegitimate children were minimally impaired - Finally, the proportionality test was met - See paragraphs 59 to 68.

Civil Rights - Topic 5666.1

Equality and protection of the law - Child support legislation - Section 27(7) of the Domestic Relations Act provided that "when a divorced person has in his care or custody legitimate children of himself and his divorced spouse and there is no order of a court or judge for maintenance ... he may apply ... for an order for maintenance restricted to the maintenance of the children ..." - The Alberta Court of Queen's Bench held that s. 27(7) violated equality rights under s. 15 of the Charter and was not a reasonable limit prescribed by law under s. 1 - The purpose of the exclusion of illegitimate children was a moral judgment to send a warning to those who would have children out of wedlock - This was neither a pressing nor substantial goal and the means of punishing children for the parents' reproductive behaviour was not rationally connected to this dubious goal - The appropriate remedy was to substitute "children" for "legitimate children" in s. 27(7) - See paragraphs 69 to 77.

Civil Rights - Topic 5666.1

Equality and protection of the law - Child support legislation - The Divorce Act provided for child support only for a "child of the marriage" - An illegitimate child claimed that the Act's "child of the mar­riage" doctrine violated her equality rights under s. 15 of the Charter - The Alberta Court of Queen's Bench rejected the claim - The Act made no distinction based on legitimacy - The Act applied to a certain fraction of the population (children of divorced parents) - Legitimate children of married parents also had no recourse under the Act for support - Further, the court noted that an illegitimate child could be a "child of the marriage" where one of the child's parents married another person who stood in loco parentis to the child - Not only did the Act not benefit a large num­ber of legitimate children, it also could benefit illegitimate children - The Act made a distinction based on marital status and did not violate s. 15 - See paragraphs 78 to 79.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See second, fourth and fifth Civil Rights - Topic 5666.1 ].

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading in - [See second Civil Rights - Topic 5666.1 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - An illegitimate child, whose support from her father under the Parentage and Maintenance Act would terminate at age 18, claimed the Act vio­lated s. 15 - The Alberta Court of Queen's Bench stated that although the child applied under only the Parentage and Maintenance Act, she had standing to challenge the constitutional validity of the Maintenance Order Act, Domestic Rela­tions Act and the Divorce Act - There was a serious issue as to validity - The Acts adversely affected the child - The only other effective means of challenging the Acts was three separate applications, which was unreasonable - The constitutional validity of the Acts was argued in suffi­cient detail for a decision to be rendered - See paragraphs 19 to 27.

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights - Analogous categories - [See second Civil Rights - Topic 5666.1 ].

Cases Noticed:

C.E.P. v. G.V. (1993), 108 Sask.R. 183; 101 D.L.R.(4th) 726 (Q.B.), refd to. [para. 10].

Penner v. Danbrook (1992), 100 Sask.R. 125; 18 W.A.C. 125; 39 R.F.L.(3d) 286 (C.A.), refd to. [para. 15].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 88 D.L.R.(4th) 193, refd to. [para. 20].

Vriend et al. v. Alberta, [1994] 6 W.W.R. 414; 152 A.R. 1 (Q.B.), refd to. [para. 21].

Andrews v. Law Society of British Col­umbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, refd to. [para. 35].

R.H.M. v. S.S.H. (1994), 150 A.R. 67; 112 D.L.R.(4th) 220 (Q.B.), refd to. [para. 36].

Tighe v. McGillivray Estate et al. (1994), 127 N.S.R.(2d) 313; 355 A.P.R. 313 (C.A.), refd to. [para. 37].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 41].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1; 92 C.L.L.C. 14,036; 10 C.R.R.(2d) 1, refd to. [para. 51].

Masse v. Masse (1981), 16 Alta. L.R.(2d) 384 (Prov. Ct. Fam. Div.), refd to. [para. 60].

Jackson v. Jackson, [1973] S.C.R. 205; [1972] 6 W.W.R. 419; 29 D.L.R.(3d) 641; 8 R.F.L. 172, refd to. [para. 80].

McGregor v. McGregor (1994), 148 N.B.R.(2d) 176; 378 A.P.R. 176; 3 R.F.L.(4th) 343 (C.A.), refd to. [para. 80].

Martell v. Height (1994), 130 N.S.R.(2d) 318; 367 A.P.R. 318; 3 R.F.L.(4th) 104 (C.A.), refd to. [para. 80].

Brown v. Brown (1990), 101 N.S.R.(2d) 68; 275 A.P.R. 68; 31 R.F.L.(3d) 91 (Fam. Ct.), refd to. [para. 83].

Theriault v. Theriault (1994), 149 A.R. 210; 63 W.A.C. 210; 113 D.L.R.(4th) 57; 2 R.F.L.(4th) 157 (C.A.), refd to. [para. 86].

Statutes Noticed:

Adult Adoption Act, S.A. 1994, c. A-23, sect. 9 [para. 61].

Age of Majority Act, R.S.A. 1980, c. A-4, sect. 1 [para. 56].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 16]; sect. 15 [para. 2].

Child Welfare Act, S.A. 1984, c. 8.1, sect. 65 [para. 61].

Constitution Act, 1982, sect. 52(1) [para. 50].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 2(1) [para. 79].

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 27(2), sect. 27(7) [para. 58]; sect. 56(5) [para. 55].

Legitimacy Act, R.S.A. 1980, c. L-11, sect. 1 [para. 61].

Maintenance Order Act, R.S.A. 1942, c. 135, sect. 2(a) [para. 46].

Maintenance Order Act, R.S.A. 1980, c. M-1, sect. 1(a) [para. 28]; sect. 2(1) [para. 29]; sect. 2(2) [para. 30]; sect. 12 [para. 48].

Maintenance Order Act, S.A. 1922, c. 4, generally [para. 44].

Maintenance Order Act, S.A. 1923, c. 5, generally [para. 45].

Maintenance Order Act, S.A. 1929, c. 15, sect. 1(a) [para. 46].

Parentage and Maintenance Act, S.A. 1990, c. P-0.7, sect. 16(2)(c) [para. 3].

Counsel:

Rosemarie Boll (Bubel, Boll & Sorenson), for the applicant;

Darryl R. Ackroyd (Ackroyd, Piasta, Roth & Day), for the respondent.

This application was heard before Roslak, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 26, 1995.