A.B. v. C.D., 2011 ABQB 770

Court of Queen ’ s Bench of Alberta Citation: A.B. v. C.D., 2011 ABQB 770 Date: 20111207 Docket: FL04 01216 Registry: Grande Prairie Between: A.B. Applicant - and - C.D. Respondent RESTRICTION ON PUBLICATION: On its own motion, the court has ordered a publication ban on the full names, actual initials and identifying information relating to the parties or relating to the child or children of any of the parties in connection with this proceeding. This order is temporary, it will expire on Tuesday, December 20, 2011 at noon.

On December 20th at 10:00 a.m. anyone who wishes to make submissions concerning the restriction may appear in court in either Grande Prairie or Edmonton and will be heard. If no one appears, the court will make the publication ban permanent. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit ______________________________________________________

Summary [ 1 ] A.B. applies for an order requiring the respondent, C.D., to submit to DNA testing to determine if C.D. is the father of a child for whom A.B. currently has legal responsibility.. [ 2 ] C.D. contests A.B. ’ s right to bring this application: he invokes s. 9(7) of the Family Law Act which states that a child cannot have more than two parents. Since A.B. has characterized himself as a parent of the child in question, C.D. claims that no third parent can be identified by the court..

C.D. also raises a limitations argument. [ 3 ] A.B. ’ s application is allowed. [ 4 ] Section 9(7) of the Family Law Act deals with the characterization of parentage in situations of assisted reproduction and other non-biological types of parenting none of which are relevant here; not only are the provisions of the statute relatively clear, a reference to Hansard makes the statutory intention plain. The reference to a “ parent ” in that sub-section is to a person defined as a “ parent ” in the statute and is a biological parent.

The statute does state that a person who is married to a mother who gives birth to a child is presumed to be the parent of that child, clearly that presumption can be rebutted. A.B. is entitled to the opportunity to rebut that presumption. [ 5 ] The Limitations of Actions Act does not apply to applications for declaration of the type requested here. [ 6 ] On its own authority, the court grants a temporary, discretionary, publication ban, in light of the potential upset of the child of the applicant on finding out that her father is not her father.

The media will be advised of the issuance of this ban according to the usual process. Any person may appear before the court on December 20, 2011 at 10:00 a.m. to advance arguments relating to the granting of a publication ban. Cases and authority cited [ 7 ] By A.B.: S.L.R. v W.S. 2010 ABQB 163 ; [ 8 ] By C.D.: On the privilege of certain litigation documents: Jutte v. Jutte 2007 ABQB 191 ; [ 9 ] By the court: On the meaning of

Part 1 of the Family Law Act: D.W.H. v. D.J.R. 2011 ABQB 608 , [2011] A.J. No. 1082; [ 10 ] On the applicability of a general limitation period to a declaration of paternity: Nandwani v Nandwani 2011 MBQB 231 , [2011] M.J. No. 322 . Appendix A: Extracts from Family Law Act 1. Background

a) Factual background

[ 11 ] A.B. was recently divorced. The proceedings were acrimonious. During the marriage, A.B. came to suspect that the older of the children of the marriage, although born after he married his then wife, was not his biological child. A.B. sent away for a DNA testing kit and took samples from himself and the child in question.

The report which he received indicated that he was not the biological father of the child. [ 12 ] A.B. has provided evidence that his former wife dated the respondent until shortly before his marriage. [ 13 ] Although given proper notice of this application, C.D. did not provide any evidence suggesting that it was impossible that he is the father of the child in question. Nor did C.D. tender any evidence to suggest that the informal DNA testing which the father has undertaken is in any way unreliable.

b) Legislative background [ 14 ] The respondent refers to s. 9(7) of the Family Law Act.

Section 1(

j) of that Act defines a “ parent ” as a person determined, in the sense of declared, to be a parent under

Part 1 of the Act.

Part 1 of that Act is titled Establishing Parentage; in order to give a contextual

interpretation to s. 9(7), an extensive extract from the

Part is required. That extract is attached as Appendix A hereto. [ 15 ] The Limitations of Action Act includes a definition of “ remedial claim ” as follows: (i) “remedial order” means a judgment or an order made by a court in a civil proceeding requiring a defendant to comply with a duty or to pay damages for the violation of a right, but excludes (

i) a declaration of rights and duties, legal relations or personal status, (ii) the enforcement of a remedial order, (iii) judicial review of the decision, act or omission of a person, board, commission, tribunal or other body in the exercise of a power conferred by statute or regulation, or (iv) a writ of habeas corpus;

c) Procedural background [ 16 ] At the hearing, A.B. agreed that portions of an affidavit that he had submitted should be sealed or redacted from the document because they referred to privileged material: Jutte . 2. Temporary publication ban [ 17 ] No statute imposes a publication ban on proceedings of the type with which we are dealing, and neither party requested a publication ban.

The court, on its motion, expresses concern over the potential harmful effects on the older child of the applicant should that child come to learn of the application, in circumstances where the outcome of the application might be that A.B. is not the biological father of the child, but it is not known who the biological father is. [ 18 ] Notice of the issuance of a temporary discretionary publication ban will be provided to the media pursuant to the usual process.

Any person may appear in court on December 20, 2011 at 10:00 a.m. in Grande Prairie or in Edmonton to make submissions concerning the issuance of a publication ban in these proceedings. If no one appears on that date, the court will make the temporary order permanent.

3. Does the “ two parent ” principle set out in s. 9(7) of the Family Law Act prevent the bringing of A.B. ’ s application? [ 19 ] Although A.B. has referred to himself as a “ parent ” , the first thing to note is that “ parent ” is a statutorily defined term for the purposes of

Part 1 of the Family Law Act. Although the FLA is relatively recent legislation which has not yet received much judicial scrutiny, s a reading of the whole of

Part I of the Family Law Act establishes, s. 9 of that statute was intended to deal with parentage by way of assisted reproduction and other types of non-biological parenting: D.W.H. and may have had some unintended effects. [ 20 ] That

interpretation of the objectives of the

Part can also be discerned from a reading of Hansard. During debate in 2010 for amendments to the Act, the Minister of Housing and Urban Affairs on behalf of the Minister of Justice, Mr. Denis (Alberta Hansard November 2, 2010, 1068) noted: Mr. Speaker, Alberta legislation will continue to be based on the principles that a child can have a maximum of two parents and that a child may have multiple guardians. and Ms. Blakeman returned to her 2003 critique, noting (Alberta Hansard November 3, 2010, 1104): At one point it talks about: a child can have a maximum of two parents.

Well, an interesting way of dealing with a legal argument, but the fact of the matter is that you can easily have more than two parents. In the case of, as I've said, same sex parents, you're going to have to deal with the fact that you've got more than two parents here, but once again the government refuses to recognize that. [ 21 ] Here, the application deals with biological parenting; therefore, it is not the primary object of

Part 1 of the legislation. Moreover, s. 7(2)(

a) of the Act, also in

Part 1, explicitly states that the child ’ s birth mother and biological father are the parents of a child. Although s. 8(1)(

a) of the Act states that A.B. is presumed to be the father of the older child of the marriage, he is entitled to rebut that presumption. In order to be able to rebut the assumption he needs to have the scientific support which he is requesting. 4. Does the Limitations Act deprive A.B. of the right to bring an application? [ 22 ] There is no evidence before the court on this application of the date on which A.B. received the DNA report stating that he was not the biological father of the child in question.

Therefore, it is difficult to authoritatively determine the limitations issue raised by the respondent. [ 23 ] Nonetheless, I can begin by noting that there is no specific limitation in the Family Law Act itself. [ 24 ]

Section 1 of the Limitations Act defines a claim as “ a matter giving rise to a civil proceeding in which a claimant seeks a remedial order ” . However, s. 1 of the Act also states: (i) “ remedial order ” means a judgment or an order made by a court in a civil proceeding requiring a defendant to comply with a duty or to pay damages for the violation of a right, but excludes (

i) a declaration of rights and duties, legal relations or personal status, [ 25 ] Although I am not aware of any specific decision which addresses the limitations issue that has arisen here, it appears that the weight of the case law - of which the Nandwani decision is representative - supports the approach that application for declaration of paternity are not time limited. Indeed, that is also the effect of the decision in S.L.R. , where a period longer than 2 years had elapsed

between the original order and the results of the testing. [ 26 ] I conclude, therefore, that an application for a declaration of paternity, that is a declaration of personal status, is not a type of proceeding to which a statutory limitation period applies. 5. Costs [ 27 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the receipt of this decision. Heard on the 28 th day of November, 2011. Dated at the City of Grande Prairie, Alberta this 7 th day of December, 2011. J.B. Veit J.C.Q.B.A. Appearances: Nicole Simoneau, Lewis & Chrenek LLP for A.B. Glen D.

Capeling, Capeling Mulder LLP for C.D. Appendix A Extracts from the Family Law Act , c. F.-4.5 RSA 2000 1. In this Act, . . . (j) “ parent ” means a person determined under

Part 1 to be a parent of a child; . . .

Part 1Establishing Parentage

Interpretation 5.

(1) In this Part, (a) “assisted reproduction” means a method of conceiving other than by sexual intercourse; (b) “embryo” means an embryo as defined in the Assisted Human Reproduction Act (Canada); (c) “human reproductive material” means human reproductive material as defined in the Assisted Human Reproduction Act (Canada); (d) “surrogate” means a person who gives birth to a child as a result of assisted reproduction if, at the time of the child’s conception, she intended to relinquish that child to (

i) the person whose human reproductive material was used in the assisted reproduction or whose human reproductive material was used to create the embryo used in the assisted reproduction, or (ii) the person referred to in subclause (

i) and the person who is married to or in a conjugal relationship of interdependence of some permanence with that person.

(2) For the purposes of this Part, if a child is born as a result of assisted reproduction, the child’s conception is deemed to have occurred at the time the procedure that resulted in the implantation of the human reproductive material or embryo was performed. 2010 c16 s1(6) Application of

Part 6 This Part does not apply to an application under

section 13 of the Child, Youth and Family Enhancement Act . 2003 cF-4.5 ss6,114; 2003 c16 s117 Rules of parentage 7

(1) For all purposes of the law of Alberta, a person is the child of his or her parents.

(2) The following persons are the parents of a child: (

a) unless clause (

b) or (

c) applies, his or her birth mother and biological father ; (

b) if the child was born as a result of assisted reproduction, a person identified under

section 8.1 to be a parent of the child; (

c) a person specified as a parent of the child in an adoption order made or recognized under the Child, Youth and Family Enhancement Act . (3 ) The relationship of parent and child, and the kindred relationships flowing from that relationship, shall be determined in accordance with this Part.

(4) A person who donates human reproductive material or an embryo for use in assisted reproduction without the intention of using the material or embryo for his or her own reproductive use is not, by reason only of the donation, a parent of a child born as a result.

(5) A person who was married to or in a conjugal relationship of interdependence of some permanence with a surrogate at the time of the child’s conception is not a parent of the child born as a result of the assisted reproduction.

(6) All distinctions between the status of a child born inside marriage and a child born outside marriage are abolished. 2003 cF-4.5 s7; 2010 c16 s1(7) Presumption of parentage — biological father 8 (1 ) For the purposes of section 7(2)(a), unless the contrary is proven on a balance of probabilities, a male person is presumed to be the biological father of a child and is recognized in law to be a parent of a child in any of the following circumstances: (

a) he was married to the birth mother at the time of the child ’ s birth; (

b) he was married to the birth mother by a marriage that within 300 days before the birth of the child ended by (

i) death, (ii) decree of nullity, or

(iii) judgment of divorce; (

c) he married the birth mother after the child’s birth and has acknowledged that he is the father; (

d) he cohabited with the birth mother for at least 12 consecutive months during which time the child was born and he has acknowledged that he is the father; (

e) he cohabited with the birth mother for at least 12 consecutive months and the period of cohabitation ended less than 300 days before the birth of the child; (

f) he is registered as the parent of the child at the joint request of himself and the birth mother under the Vital Statistics Act or under similar legislation in a province or territory other than Alberta; (

g) he has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose.

(2) Where circumstances exist that give rise to a presumption under subsection (1) that more than one male person might be the father of a child, no presumption as to parentage may be made. (3) Subsection (1) does not apply in the case of a child born as a result of assisted reproduction. 2003 cF-4.5 s8; 2010 c16 s1(8) ;2010 c16 s1(8) Assisted reproduction 8.1

(1) In this

section and

section 8.2, (

a) a reference to the provision of human reproductive material by a person means the provision of the person’s own human reproductive material to be used for his or her own reproductive purposes; (

b) a reference to the provision of an embryo by a person means the provision of an embryo created using the person’s own human reproductive material to be used for his or her own reproductive purposes.

(2) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a male person only, the parents of the child are (

a) unless clause (

b) or (

c) applies, the birth mother and the male person; (

b) if the birth mother is a surrogate and, under

section 8.2(6), she is declared not to be a parent and the male person is declared to be a parent, the male person and a person who (

i) was married to or in a conjugal relationship of interdependence of some permanence with the male person at the time of the child’s conception, and (ii) consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception; (

c) unless

section 8.2(9) applies, if the birth mother is a surrogate but does not consent to the application under

section 8.2, the birth mother only.

(3) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a female person only, the parents of the child are (

a) unless clause (

b) or (

c) applies, the birth mother and a person who (

i) was married to or in a conjugal relationship of interdependence of some permanence with the birth mother at the time of the child’s conception, and (ii) consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception; (

b) if the birth mother is a surrogate and, under

section 8.2(6), she is declared not to be a parent and the female person is declared to be a parent, the female person and a person who (

i) was married to or in a conjugal relationship of interdependence of some permanence with the female person at the time of the child’s conception, and (ii) consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception;

(

c) unless

section 8.2(9) applies, if the birth mother is a surrogate but does not consent to the application under

section 8.2, the birth mother only.

(4) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by both a male person and a female person, the parents of the child are (

a) unless clause (

b) or (

c) applies, the birth mother and the male person; (

b) if the birth mother is a surrogate and, under

section 8.2(6), she is declared not to be a parent and the male person and female person are each declared to be a parent, the male person and the female person; (

c) unless

section 8.2(9) applies, if the birth mother is a surrogate but does not consent to the application under

section 8.2, the birth mother only.

(5) If a child is born as a result of assisted reproduction without the use of human reproductive material or an embryo provided by a person referred to in subsection (1)(

a) or (b), the parents of the child are the birth mother and a person who (

a) was married to or in a conjugal relationship of interdependence of some permanence with the birth mother at the time of the child’s conception, and (

b) consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception.

(6) Unless the contrary is proven, a person is presumed to have consented to be a parent of a child born as a result of assisted reproduction if the person was married to or in a conjugal relationship of interdependence of some permanence with, (

a) in the case of a child born in the circumstances referred to in subsection (2), the male person referred to in that subsection, (

b) in the case of a child born in the circumstances referred to in subsection (3), the female person referred to in that subsection, or (

c) in the case of a child born in the circumstances referred to in subsection (5), the birth mother. 2010 c16 s1(9) Surrogacy 8.2

(1) An application may be made to the court for a declaration that (

a) a surrogate is not a parent of a child born to the surrogate as a result of assisted reproduction, and (

b) a person whose human reproductive material or embryo was provided for use in the assisted reproduction is a parent of that child.

(2) Subject to subsection (3), the following persons may make an application under subsection (1): (

a) the surrogate; (

b) a person referred to in subsection (1)(b); (

c) a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b).

(3) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by both a male person referred to in subsection (1)(

b) and a female person referred to in subsection (1)(b), only the surrogate, the male person or the female person may make an application under subsection (1).

(4) An application under subsection (1) may not be commenced more than 30 days after the date of the child’s birth unless the court allows a longer period.

(5) Unless the court directs otherwise, the following persons must, in accordance with the regulations, be served with notice of the application: (

a) if a surrogate brings an application under subsection (1), (

i) a person referred to in subsection (1)(b), (ii) unless subsection (3) applies, a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b), and (iii) any other person as the court considers appropriate; (

b) if a person referred to in subsection (1)(

b) brings an application under subsection (1), (

i) the surrogate,

(ii) unless subsection (3) applies, a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b), (iii) if subsection (3) applies, the other person referred to in subsection (1)(b), and (iv) any other person as the court considers appropriate; (

c) if a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(

b) brings an application, (

i) the person referred to in subsection (1)(b), (ii) the surrogate, and (iii) any other person as the court considers appropriate.

(6) The court shall make the declaration applied for if the court is satisfied that (

a) the child was born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a person referred to in subsection (1)(b), and (

b) the surrogate consents, in the form provided for by the regulations, to the application.

(7) A person who is declared to be a parent of the child under subsection (6) and any person who, as a result of that declaration, is a parent of the child under

section 8.1 are deemed to be the parents at and from the time of the birth of the child.

(8) Any agreement under which a surrogate agrees to give birth to a child for the purpose of relinquishing that child to a person (

a) is not enforceable, (

b) may not be used as evidence of consent of the surrogate under subsection (6)(b), and (

c) may be used as evidence of consent for the purposes of

section 8.1(2)(b)(ii) or (3)(b)(ii).

(9) The court may waive the consent required under subsection (6)(

b) if (

a) the surrogate is deceased, or (

b) the surrogate cannot be located after reasonable efforts have been made to locate her.

(10) If the court makes a declaration under subsection (6), the court shall identify in the declaration any person referred to in

section 8.1(2)(b)(

i) and (ii) or (3)(b)(

i) and (ii), as the case may be, who is a parent as a result of that declaration. (11 ) The court has jurisdiction under this

section if the child is born in Alberta.

(12) An application may not be made under this

section if (

a) the child has been adopted, or (

b) the declaration sought would result in the child having more than 2 parents. 2010 c16 s1(9) Declaration respecting parentage 9.

(1) If there is a dispute or any uncertainty as to whether a person is or is not a parent of a child under section 7(2)(

a) or (b), the following persons may apply to the court for a declaration that the person is or is not the parent of a child: (

a) a person claiming to be a parent of the child; (

b) a person claiming not to be a parent of the child; (

c) the child; (

d) a parent of the child, if the child is under the age of 18 years; (

e) a guardian of the child; (

f) a person who has the care and control of the child.

(2) This

section does not apply where a child is born to a surrogate who has consented to an application under

section 8.2.

(3) If the court finds that a living person is or is not a parent of a child, the court may make a declaration to that effect.

(4) If the court finds that a deceased person is or is not a parent of a child conceived before that person’s death, the court may make a declaration to that effect.

(5) In making a declaration under this section, the court shall give effect to any applicable presumption set out in

section 8 and any applicable provision of

section 8.1.

(6) The court has jurisdiction under this

section if (

a) the child is born in Alberta, or (

b) an alleged parent resides in Alberta. ( 7) An application or declaration may not be made under this

section if (

a) the child has been adopted, or (

b) the declaration sought would result in the child having more than 2 parents. 2003 cF-4.5 s9; 2010 c16 s1(10) (Emphasis added)