T.L.W. v. D.C., (1997) 200 A.R. 357 (CA)

• Judge: Côté, Picard and Hunt, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 27, 1997
• Citations: (1997), 200 A.R. 357 (CA)

T.L.W. v. D.C. (1997), 200 A.R. 357 (CA);

    146 W.A.C. 357

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. SE.013

In The Matter of the Parentage and Maintenance Act, being chapter P-0.7, Statutes of Alberta, 1990;

T.L.W. (appellant) v. D.C. (respondent)

(Appeal No. 16260)

Indexed As: T.L.W. v. D.C.

Alberta Court of Appeal

Côté, Picard and Hunt, JJ.A.

August 27, 1997.

Summary:

A child was born in 1981. In 1995, the mother applied under the Parentage and Maintenance Act for a declaration that D.C. was the child's father and for an order of child maintenance. The mother subsequently applied to amend the style of cause to allow the child to bring the appli­cation in his own name. The father argued that he had a vested right in the protection of the two year limi­tation period in the repealed Maintenance and Recovery Act (s. 14(1)) which defeated the mother and child's claims.

The Alberta Court of Queen's Bench, in Chambers, in a decision not reported in this series of reports, dismissed both applications. The mother appealed.

The Alberta Court of Appeal allowed the appeal. It held that the child had the right to pursue a claim for a declaration of paternity and support under the Parentage and Main­tenance Act and could be added as a party to the action or commence his own separate action.

Infants - Topic 2524

Parentage of children (incl. illegitimate children) - Filiation proceedings - Limita­tion of actions - [See all Infants Topic 2569 ].

Infants - Topic 2569

Parentage of children (incl. illegitimate children) - Support and other claims - Limitation of actions - A child was born in 1981 - In 1995, the mother applied under the Parentage and Maintenance Act (PMA) for a declaration that D.C. was the child's father and for an order of child mainten­ance - The mother later applied to amend the style of cause to allow the child to bring the application in his own name - The father relied upon a limitation period contained in the repealed Maintenance and Recovery Act (s. 14(1)) - On appeal, the Alberta Court of Appeal rejected the limi­tation defence - The child had the right to pursue a claim for a declaration of pater­nity and support under the PMA and could be added as a party to the action or com­mence his own separate action.

Infants - Topic 2569

Parentage of children (incl. illegitimate children) - Support and other claims - Limitation of actions - A child was born in 1981 - In 1995, the mother applied under the Parentage and Maintenance Act (PMA) for a declaration that D.C. was the child's father and for an order of child mainten­ance - The mother later applied to amend the style of cause to allow the child to bring the application in his own name - The father relied upon a limitation period contained in the repealed Maintenance and Recovery Act (MRA) (s. 14(1)) - The PMA replaced the MRA and gave a child the right to make a support claim (s. 7) - The Alberta Court of Appeal stated that "[i]t would be contrary to the goal and purpose of the PMA to allow D.C. to avoid the child's claim because of a limi­tation period in place before the child's right to do so arose." - See paragraph 13.

Infants - Topic 2569

Parentage of children (incl. illegitimate children) - Support and other claims - Limitation of actions - A child was born in 1981 - In 1995, the mother applied under the Parentage and Maintenance Act (PMA) for a declaration that D.C. was the child's father and for an order of child mainten­ance - The mother later applied to amend the style of cause to allow the child to bring the application in his own name - The father relied upon a limitation period contained in the repealed Maintenance and Recovery Act and argued that the right granted to the child in the PMA was just procedural - The Alberta Court of Appeal stated that "[t]he right of the child to sue under the PMA is a new right....D.C.'s argument that it is 'simply a procedural right' gets him nowhere." - See paragraph 14.

Infants - Topic 2569

Parentage of children (incl. illegitimate children) - Support and other claims - Limitation of actions - A child was born in 1981 - In 1995, the mother applied under the Parentage and Maintenance Act (PMA) for a declaration that D.C. was the child's father and for an order of child mainten­ance - The mother later applied to amend the style of cause to allow the child to bring the application in his own name - The PMA replaced the Maintenance and Recovery Act (MRA) and gave a child the right to make a support claim - The father argued that the mother and child were inextricably linked and that the child should not be allowed to sue him when the mother could not because of his vested right to a limitation defence founded in the MRA (s. 14(1)) - The Alberta Court of Appeal rejected the argument - See para­graphs 15 and 16.

Infants - Topic 2569.1

Parentage of children (incl. illegitimate children) - Support and other claims - Delay - A child was born in 1981 - In 1995, the mother applied under the Parent­age and Maintenance Act (PMA) for a declaration that D.C. was the child's father and for an order of child maintenance - The mother later applied to amend the style of cause to allow the child to bring the application in his own name - The father argued, inter alia, laches and delay - The Alberta Court of Appeal stated that the child's application to be a party was well within the limitation period in the PMA within which the child must make a claim - There were no laches - See para­graph 15 and 16.

Statutes - Topic 6903

Operation and effect - Commencement, duration and repeal - Preservation of rights acquired or accrued under repealed statue - [See all Infants - Topic 2569 ].

Cases Noticed:

R.H.M. v. S.S.H. (1994), 150 A.R. 67 (Q.B.), refd to. [para. 6].

D.D.S. v. R.H. (1993), 141 A.R. 44; 46 W.A.C. 44; 10 Alta. L.R.(3d) 225 (C.A.), dist. [para. 6].

Alberta (Director of Parentage and Main­tenance) v. R.H. - see D.D.S. v. R.H.

Bagaric v. Juric and Bagaric (1984), 2 O.A.C. 35; 5 D.L.R.(4th) 78 (C.A.), refd to. [para. 14].

J.A.L.K. v. J.R. (1996), 141 D.L.R.(4th) 25 (Alta. C.A.), dist. [para. 17].

155569 Canada Ltd. v. 248524 Alberta Ltd. (1988), 93 A.R. 241 (Q.B.), refd to. [para. 23].

Statutes Noticed:

Maintenance and Recovery Act, R.S.A. 1980, c. M-2, sect. 14(1) [para. 2].

Parentage and Maintenance Act, S.A. 1990, c. P-07, sect. 7 [para. 2].

Counsel:

Brian A.F. Edy, for the appellant;

Daniel I. Shapiro, for the respondent.

This appeal was heard on May 12, 1997, before Côté, Picard and Hunt, JJ.A., of the Alberta Court of Appeal.

Picard, J.A., delivered the following judg­ment for the court on August 27, 1997.