W.D. v. G.P., (1984) 54 A.R. 161 (CA)

• Judge: Haddad, Laycraft and Kerans, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 03, 1984
• Citations: (1984), 54 A.R. 161 (CA);1984 ABCA 233;11 DLR (4th) 321;[1984] 5 WWR 289;32 Alta LR (2d) 232;54 AR 161;12 CCC (3d) 161;41 RFL (2d) 229;[1984] CarswellAlta 86;[1984] AJ No 825 (QL)

W.D. v. G.P. (1984), 54 A.R. 161 (CA)

MLB headnote and full text

W.D. v. G.P.

(Appeal No. 16096)

Indexed As: W.D. v. G.P.

Alberta Court of Appeal

Haddad, Laycraft and Kerans, JJ.A.

July 3, 1984.

Summary:

A mother and a natural father claimed the custody of an illegitimate child. The trial judge awarded custody to the father. The mother appealed.

The Alberta Court of Queen's Bench allowed the appeal and awarded custody to the mother. The judgment of the Court of Queen's Bench is reported at 29 Alta. L.R.(2d) 145. The father appealed.

The Alberta Court of Appeal allowed the appeal and restored the judgment of the trial judge. Haddad, J.A., dissenting, in the Alberta Court of Appeal would have dismissed the appeal.

Infants - Topic 2683

Illegitimate children - Custody of illegitimate children by natural father - A mother and a natural father claimed the custody of an illegitimate child - The Alberta Court of Appeal affirmed an award of custody to the father.

Guardian and Ward - Topic 114

Right to guardianship - Of illegitimate children - The Alberta Court of Appeal held that a natural father may be granted joint guardianship status of an illegitimate child notwithstanding that the mother may be a fit mother and notwithstanding that the mother is the sole guardian of the child by operation of law (see paragraph 8).

Guardian and Ward - Topic 42

Guardianship defined - The Alberta Court of Appeal stated that guardianship is a broader concept than custody and includes the right to custody (see paragraph 33).

Infants - Topic 2693

Illegitimate children - Custody of illegitimate children - Considerations, Best Interests Rule - The Alberta Court of Appeal discussed the Best Interests Rule and distinguished the Best Interests Rule and the Fitness Rule (see paragraphs 14 to 25).

Infants - Topic 2694

Illegitimate children - Custody of illegitimate children - Considerations, Fitness Rule - The Alberta Court of Appeal discussed the Fitness Rule and distinguished the Fitness Rule and the Best Interests Rule (see paragraphs 14 to 25).

Courts - Topic 8426

Provincial courts - Alberta - Provincial Court, Family Division - The Alberta Court of Appeal held that the Family Division had the power to award custody of an illegitimate child to the natural father (see paragraphs 33 to 40).

Family Law - Topic 1916

Custody of Children - Appeals, standard of review - The Alberta Court of Appeal referred to the standard of review on an appeal from an order of the Family Division of the Provincial Court respecting the custody of a child (see paragraphs 42 to 48).

Cases Noticed:

Vandenberg v. Guimond (1968), 66 W.W.R. 408, not folld. [para. 8].

Re Loque and Burrell (1971), 15 D.L.R.(3d) 129, not folld. [para. 8].

Adams et al. v. McLeod and Ramstead (1978), 20 N.R. 203, 9 A.R. 1, 5 Alta. L.R.(2d) 391 (S.C.C.), ref'd to. [para. 15].

Martin v. Duffell, [1950] 4 D.L.R. 1, ref'd to. [para. 16].

Hepton v. Matt, [1957] S.C.R. 606, ref'd to. [para. 17].

Meikle v. Authenac (1970), 3 R.F.L. 84, ref'd to. [para. 18].

Re Moores and Feldstein (1973), 12 R.F.L. 273, ref'd to. [para. 19].

Re Hawkins and Hawkins v. Addison, 15 W.W.R.(N.S.) 18, ref'd to. [para. 24].

Re The Child Welfare Act (1972), 8 R.F.L. 240, ref'd to. [para. 24].

Re M., [1955] 2 Q.B. 479, ref'd to. [para. 27].

Re Wright, 367 N.E.(2d) 931 (1977), ref'd to. [para. 28].

Quintal v. Boucher (1977), 5 A.R. 111, ref'd to. [para. 31].

White v. Barrett, [1973] 3 W.W.R. 293, ref'd to. [para. 38].

Gingell v. R., 5 N.R. 443, [1976] 1 W.W.R. 232, ref'd to. [para. 38].

Roebuck v. Roebuck (1983), 45 A.R. 180; 148 D.L.R.(3d) 131, ref'd to. [para. 48].

R. v. Enrich, 41 A.R. 387, [1983] 1 W.W.R. 530, ref'd to. [para. 70].

Statutes Noticed:

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 46 [para. 70]; sect. 47 [para. 33].

Provincial Court Act, R.S.A. 1980, c. P-20, sect. 32(1) [para. 37]; sect. 34 [para. 45].

Interpretation Act, R.S.A. 1980, c. I-7, sect. 32(2) [para. 47].

Authors and Works Noticed:

Berger, The War over the Family, p. 70 [para. 23].

Counsel:

R.G. Wishart, for the appellant, P.

J.H. Gescher, for the respondent, D.

This appeal was heard by Haddad, Laycraft, and Kerans, JJ.A., of the Alberta Court of Appeal. The judgment of the Court of Appeal was delivered on July 3, 1984 and the following opinions were filed:

Kerans, J.A. - See paragraphs 1 to 66;

Haddad, J.A., dissenting - See paragraphs 67 to 76.

Laycraft, J.A., concurred with Kerans, J.A.