D.W.H. v. D.J.R., 2011 ABQB 119

Court of Queen ’ s Bench of Alberta Citation: D.W.H. v. D.J.R., 2011 ABQB 119 Date: 20110228 Docket: FL01 11127 Registry: Calgary Between: D.W.H. Applicant - and - D.J.R. and D.D. Respondents - and - The Minister of Justice and Attorney General of Alberta Intervener Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. See the Family Law Act , s. 100 . _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice K. M. Eidsvik

_______________________________________________________ [1] This decision follows a series of case management meetings that have been held in this action (which I shall call the “Hguardianship action”) and two other related actions (the “H access action” and the “DJR guardianship action”) . [2] The H access action went to trial after two interim applications - one of which went to the Court of Appeal - see 2007 ABCA57. In sum, Mr. H and Mr. D.J.R. lived in a common law male gay partnership for several years and planned to have a baby via asurrogate mother using Mr. D.J.R.’s sperm. The baby was born in 2003.

The child lived with the partners and visited the surrogatemother. Three years later the partners separated. After trial I ordered that access should be allowed to Mr. H. I also pointed out thataccording to the Family Law Act S.A. 2003, c. F-4.5 the child had a mother (the surrogate), but no legal father. The full reasons, whichalso discuss the further factual and legal background to this application, are at 2009 ABQB 438. Mr. D.J.R. subsequently applied tobecome the child’s guardian and this application was allowed. [3] As part of Mr. H’s guardianship application, which is opposed, Mr.

H. is challenging the validity of certain sections of theFamily Law Act and Vital Statistics Act RSA 2000 c. V-4 on the basis that it discriminates against him on the grounds of gender andsexual orientation contrary to

section 15 of the Canadian Charter of Rights and Freedoms. This particular application is for an advanceor interim costs order so that Mr. H. can retain counsel to present the constitutional argument appropriately. Issue [4] The only issue before me is whether advance costs should be ordered for this application. Analysis [5] The most recent Supreme Court pronouncement on this issue is in the quasi-criminal/constitutional case of R. v. Caron, 2011SCC 5.

The Court confirmed that the tests in the leading case to determine whether advance (or interim) costs in the civil context are“essential to avoid an injustice” are those found in British Columbia (Minister of Forests) v. Okanagan Indian Band 2003 SCC 71.These tests have been often referred to (see para. 40 of Okanagan and para. 39 of Caron). Mr. Justice LeBel said at para. 40: With these considerations in mind, I would identify the criteria that must be present to justify an award of interim costs in this kind ofcase as follows: 1.

The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing theissues to trial -- in short, the litigation would be unable to proceed if the order were not made. 2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interestsof justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means. 3.

The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved inprevious cases. [6] In

summary, “the three criteria of impecuniosity, a meritorious case, and special circumstances must be established on theevidence before the Court”(para. 36, Okanagan). In Little Sisters Book & Art Emporium v. Canada 2007 SCC 2 , [2007]1

S.C.R. 38, the majority emphasised the need for special circumstances to be present beyond “public importance” to make a case “sufficiently special” to award advance costs. This test was used again in Caron . I shall discuss each test in more detail under each heading. [ 7 ] The Okanagan case at paras. 19 to 26 reviewed the traditional and modern approach to costs which I believe is important to keep in mind in this case. Indemnification to the winning party is one issue but overall the “broad concern” is to “ensure that the justice system works fairly and efficiently” (para. 26).

Accordingly in some civil cases, such as domestic cases the wealthier party has been ordered to advance costs to the other side in order to allow fairness (the mitigation of severe inequality between litigants) in the presentation of the opposite position. In Charter litigation, especially in the early days, the courts recognised that accessibility to the ordinary citizen was an important policy objective. The courts have retrenched on that position now - making it clear that not all Charter litigation merits an advance cost award.

Further, there are legitimate concerns discussed in Caron , that the courts should not be allowing for a reinstatement of the Court Challenge Program that was discontinued by the federal government or for the intervention in the legal aid system. [ 8 ] Finally, it is recognised that there are many very legitimate cases that are only able to afford self-representation. The test noted above is to be used sparingly and only if all of the criteria are met including the very stringent last one.

As was said at para. 36 of Little Sisters : “In other words, though now permissible, public interest advance costs orders are to remain special and, as a result, exceptional. These orders must be granted with caution, as a last resort, in circumstances where the need for them is clearly established....

An application for advance costs may be entertained only if a litigant establishes that it is impossible to proceed with the trial and await its conclusion, and if the court is in a position to allocate the financial burden of the litigation fairly between the parties.” Impecuniosity [ 9 ] In Caron , the Supreme Court found that Mr. Caron had shown that he had exhausted his resources by the time he made his application for funding part way through his trial. In a recent Alberta Queen’s Bench case, L.

C. v Alberta (Metis Settlements Child and Family Services, Region 10), 2011 ABQB 42 , Justice Graesser said at para. 74 :“Few individuals can afford to undertake litigation against the Government other than on a contingency arrangement” (in a civil damages case). He found that this part of the test was satisfied since no contingency agreement was in place in that case. [ 10 ] Here, Mr. H. filed affidavit material and was cross examined by the Department of Justice counsel about his (and his new partner’

s) financial situation and efforts that they have made to obtain funding from legal aid, gay rights groups, and pro bono legal services. At my request he made further inquiries with Calgary Legal Guidance, all to no end. He has exhausted his resources in part by the litigation involving his access rights and I am satisfied on the evidence that he is now in dire financial straights. [ 11 ] However, it is important to discuss the status of the application in question and what costs will need to be incurred as noted in the Little Sisters case, when reviewing this criteria.

Here, the government argued that all that will be necessary to litigate the discrimination/Charter argument is an afternoon special. Indeed, most if not all of the evidence here has already been litigated and determined, and most of the relevant law is already before me. Accordingly, I agree that the solicitor client costs (if a lawyer was hired) would be much more limited than say what was facing other litigants in the cases mentioned above.

In any event, considering the nature of this application and the material already filed to date, I cannot conclude that it would be “impossible” to proceed without legal assistance at this stage. [ 12 ] Accordingly although on the evidence in my view, Mr. H. has satisfied me that he is “impecunious” and would have no realistic means to pay any further solicitor client fees to pursue this application, I don’t believe that without advance funding, it will be “impossible” to have this application heard. Meritorious [ 13 ] The second part of the Okanagan test is that the claim must be prima facie meritorious.

As discussed at para. 37 of Okanagan : “Although a litigant who requests interim costs must establish a case that is strong enough to get over the preliminary threshold of being worthy of pursuit, the order will not be refused merely because key issues remain live and contested between the

parties.” [14] Mr. H.’s main argument is that he, as a non-biological intended “parent” in a male gay relationship where his partner is thebiological parent to the child, is not given automatic rights as a “father” and therefore “parent” and “guardian” under the FLA as hewould be if he was a non-biological male in a heterosexual relationship with a female mother which is allowed under the FLA. He allegesthat this distinction is discrimination as it breaches

section 15 of the Charter. [15] The discriminatory status of the FLA in relation to a lesbian couple has already been recognised by our court in Fraess v.Alberta (Minister of Justice and Attorney General) 2005 ABQB 889 and this automatic right was read into the legislation so that thenon-biological female partner of the biological mother was recognised as a parent under the FLA. [16] Mr. Justice Clark said at para. 6: Decision on the Constitutional Validity of Section 13(2)(

b) The law is clear that where a law is creative of legislated consequences for opposite sex couples and excludes from its ambit same sexcouples the law will violate s. 15(1) of the Charter. See M v. H, (SCC), [1999] 2 S. C. R. 3. The effect of s. 13 of theFamily Law Act is to confer upon opposite sex spouses a benefit denied same sex spouses. Men married or partnered to women canreceive parental status immediately upon the birth of the child conceived through artificial insemination provided that they consented tobeing a parent in advance of the conception. Women married or partnered to women cannot.

Such a provision clearly violates s. 15(1) ofthe Charter of Rights and Freedoms. [17] Importantly, the government (represented by the same counsel as in this case) took no position and made no submissionsregarding the constitutional validity or invalidity of the impugned provision of the FLA in Fraess. Nor did the government attempt tojustify the distinction under

section 1 of the Charter. Instead it argued against the remedy that the applicants in Fraess were seeking, i.e.a read-in to include the non-biological consenting and intended parent into the section. The government was against that remedy in partbecause this remedy would not assist male same sex couples who have children via a surrogate (see para. 10). Instead, the governmentsuggested that

section 13 be severed from the legislation thereby eliminating any rights to a non-biological but consenting and intendedparents. Justice Clark rejected the Government’s position. He said at para. 13: “It seems extraordinary that once the Legislature as a policy matter accepts a person can be a parent through intention that should betaken away from those persons because it is discrimination under the Charter.” (Emphasis mine) [18] In this case the government now argues that Mr.

H. is using the wrong comparator group and points out that a woman in arelationship with the biological father of a child born of a surrogate mother would also have no automatic legal status, therefore there isno discrimination based on sex or sexual orientation. [19] Recently, in the human rights proceeding that Mr. H. is bringing, the Director recently found and agreed that the FLA wasdiscriminatory in its effect. The Human Rights Officer had also found that the FLA discriminated against Mr. H. The Human Rightsofficer went on to find that it was reasonable and justified under

section 11 of the Human Rights Act (which is similar to

section 1 of theCharter). The Director felt that Mr. H. had not been denied equal services so that the Human Rights Act did not apply. He went on tomake other obiter comments some of which I’ll refer to later. [20] Clearly, the potential of the discriminatory effect of the FLA will be “live and contested” between the parties.

Overall,considering the Fraess case however, without making any conclusions on the merits of this application, which need not be made at thispreliminary stage, I find that this claim is prima facie meritorious. [21] I make this finding despite the fact that since this application was originally brought in July 2010 (and subsequently amendedtwice, once by way of a refined Notice of Motion in the access action and secondly by starting a new action by Originating Notice of

Motion after I directed that the access action was now defunct other than for issues arising from access issues) the government of Albertahas passed new legislation amending the FLA - “Family Law Statutes Amendment Act, 2010”. It has not been proclaimed.

Counseladvised that the government is working on it. [22] The new amendments have adopted many of the recommendations of the Uniform Law Conference of Canada’s WorkingGroup recommendations which were made in August 2009 on Assisted Human Reproduction and from the Uniform Child Status Act2010 (available on the Uniform Law Conference of Canada website at www.ulcc.ca). One key distinction however is that Alberta’sAmendments do not incorporate a provision allowing for three parents in certain circumstances.

The Act also appears to have taken awayall automatic parental rights to intended non-biological parents – something that Mr. Justice P. Clark in Fraess rejected to do as a remedyto the discrimination in the FLA. [23] The government argues that the new amendments, should they be proclaimed, remove the forms of discrimination that Mr. H.complains about. The Director of Human Rights agreed. [24] Mr.

H. argues that the amendments do not eliminate the discrimination against intended non-biological parents and that thefailure to follow some of the recommendations made from the Joint Working Group as discussed above means that he, as a member of anon-traditional family, continues to be discriminated against. [25] The application as it stands now claims discrimination from the legislation presently in place and that is what a court needs torule on, with respect to whether Mr. H. has suffered discrimination or not as a result. It is to be noted that Mr.

H. is also claiming fordamages as a result of the discrimination he claims that he has suffered from, and the Supreme Court in City of Vancouver v. Ward,2010 SCC 27 , [2010] 2 S.C.R. 28 has recently confirmed that such damages may be available in certain cases when individual’sCharter rights are breached and it is appropriate and just. I agree that the court may have to take into account the proposed legislationwhen it considers a remedy to the problem should the FLA be found to be discriminatory against Mr. H.

Nonetheless, the whole of theapplication is not moot if the proposed amending legislation is proclaimed. Special circumstances [26] As noted above, the third criteria outlined in Okanagan is that the issues raised must transcend the individual interests of theparticular litigant, be of public importance, and have not been resolved in previous cases. Further, that the award of costs only be used asa last resort in only the most special circumstances. [27] Here, the government has argued that this case is limited to Mr. H.’s application for guardianship and does not transcend Mr.H.’s individual interest. [28] Mr.

H. argues on the other hand that the legitimacy of the FLA and whether it discriminates against non-biological intendedparents is an issue that transcends his individual issue. [29] It is clear that the legal rights surrounding surrogacy births transcends Mr. H.’s individual interest. It is a very importantsubject for the public of Alberta and beyond. The very studies that have been referenced above show the effort that has been made bymany law reviewers and law makers.

As the government has rightly pointed out, there are many permutations to the issue and indeednew amendments may be proclaimed that effect these rights as discussed above. The situation of intended but non-biological parents,such as Mr. H., is one that is shared by many - and not only in homosexual relationships. Accordingly, an assessment about whether thepresent legislation is discriminatory transcends Mr. H.’s individual interest. [30] Skipping to the third prong of this criteria, whether this issue has been resolved in prior cases, can be easily answered.

Fraesshas gone some ways in this regard with respect to a lesbian couple, a determination needs to be made with respect to a male gay couple. This needs to be resolved. [31] Coming back to the second and overriding criteria: is this case of public importance and are the circumstances so special thatan advance cost award should be allowed in the interests of justice ? Here again is where I have some problems. Clearly the issue is of

public importance, but considering that the legislature has undertaken a full review of the surrogacy laws and is in the process ofenacting changes, the problem is presently squarely in the public arena regardless of this application. This application can bedistinguished, for example, from Mr.

Caron’s case dealing with the constitutionality of French language rights in Alberta where but forhis litigation the issue would not be dealt with. [32] In my view, considering that the Charter application at this stage can be heard in an afternoon and that most of the materialhas already been filed in this application, it should not take much more for Mr. H. to proceed to that next step. Obviously it would bemuch more efficient if counsel were appointed for Mr. H. - there have been issues with pleadings for instance - however this is anunfortunate problem that many cases face today. It will not bar Mr.

H. from proceeding to get the determination he has applied for in myview. [33] Accordingly, at this stage, presuming that the legislature will proclaim this legislation in the near future, I do not believe, thatthis very difficult criteria has been met. Costs of this application [34] I now come to the issue of costs of this application for advance costs. The general rule is that the successful party will begranted their costs (recently enshrined in Rule 10.29 (1)). However, there may be circumstances where this is not the case.

As themajority said in Little Sisters at para. 35: “ Bringing an issue of public importance to the courts will not automatically entitle a litigant topreferential treatment with respect to costs (cases cited)... By the same token, however, a losing party that raises a serious legal issue ofpublic importance will not necessarily bear the other party’s costs... (cases cited)... Each case must be considered on its merits, and theconsequences of an award for each party must be weighed seriously (cases cited).” [35] Madam Justice Hunt in Vriend v. Alberta (1996) 1996 ABCA 274 , A. J.

No. 643 in her dissenting judgement wouldhave allowed costs of the applicant even though he lost before the Court of Appeal with respect to the alleged s. 15 Charter breach byfailing to include “sexual orientation” as a prohibited ground of discrimination in the Alberta Human Rights Act. Although Justice Huntwas in dissent, her decision on the merits was upheld at the Supreme Court of Canada (Vriend v. Alberta (SCC),[1998] 1S.C.R. 493). [36] In addition to this common law, I have considered the new Rule 10.32 dealing with proceedings under the Class ProceedingsAct or in a representative action.

Although this is neither of those cases technically, it has the same characteristics. Rule 10.32 expresslyallows in the determination of whether a costs award should be made against an unsuccessful party the consideration of the followingfactors:

a) the public interest,

b) whether the action is a novel point of law

c) whether the proceeding or action is a test case and

d) accessto justice considerations. [37] In my view special circumstances apply here to depart from the general rule and for the reasons set out above, this applicationmeets each of the factors of Rule 10.32 on the whole. As I have found, this case is of public importance and transcends in part Mr. H.’sindividual interest in its outcome. And, it is to be recalled that the government was aware back in 2005 that the remedy allowed in Fraesswould not assist male same sex couples who have children via a surrogate.

It is mainly because of the new legislation that takes this caseout of the “exceptional” category necessary to award advance costs. [38] On this point, Mr. H. brought this application in July 2010 (after a first round with the Human Rights Commission). Althoughthe government was involved at the Human Rights stage and shortly afterwards, it was not until the court meeting on November 15,2010 that the government raised the fact that new legislation was in the works.

I would have expected that the government should have known about this proposed legislation earlier (it received Royal Assent on December 2nd, 2010 after all). This certainly delayed thisapplication and changed the complexion of the possibility of success of an advance cost award. [39] Further, it was reasonable to seek advance costs here when this application was commenced in July. This is complexconstitutional litigation that would be better served with legal counsel.

The law in this area is new and developing - indeed the SupremeCourt first decided this issue in Okanagan in 2003 and there have been two other recent Supreme Court cases in 2007 (Little Sisters) andlast month (Caron) on this issue.

[ 40 ] Accordingly, in my view it is reasonable in these circumstances that the government bear the costs of this advance costs application. Since Mr. H. is (obviously) self- represented, then Rule 10.31 (5) states that the court may award a costs award in appropriate circumstances in an amount or part of an amount equivalent to the fees set out in

Schedule C of our Rules. [ 41 ] Accordingly, I award the amount of $5,500 for costs to Mr. H. payable forthwith by the government.

This has been calculated by including a part (not all) for the originating pleading (1. (1). $500), the production of an initial affidavit (and a further follow-up one) and many documents requested by the government (2. $750), a half day of questioning on the Affidavit (5. $750), for three case management meetings dealing mainly with this issue (there have been more than that but I have included three for the purposes of costs against the government) (7. (1) $750 x 3) and for the contested application where a brief was required (8. (1) $1250).

I have used column 2 - the same column that I allowed in the access costs award. Conclusion [ 42 ] The application for advance costs is dismissed with costs of this application in the amount of $5500 payable by the Attorney General of Alberta to the applicant forthwith. Heard on the 8 th of December, 2010 and the 13 th of January, 2011. Dated at the City of Calgary, Alberta this 28th day of February, 2011. K.M. Eidsvik J.C.Q.B.A. Appearances: Mr. D.W.H. for the Applicant Ms. Lillian Riczu Alberta Department of Justice Constitutional Law Branch for the Minister of Justice and Attorney General of Alberta