D.W.H. v. D.J.R., 2011 ABQB 791

Court of Queen ’ s Bench of Alberta Citation: D.W.H. v. D.J.R., 2011 ABQB 791 Date: 20111219 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 .

_______________________________________________________ Supplemental Reasons for Judgment of the Honourable Madam Justice S.M. Bensler _______________________________________________________ Introduction [1] On October 12, 2011, I issued Reasons for Judgment in D.W.H. v. D. J. R., 2011 ABQB 608 ("Reasons"), finding that certainsections of the Family Law Act, S.A. 2003, c. F-4.5 ("FLA") discriminated against the Applicant, Mr. H., on the grounds of gender andsexual orientation contrary to s. 15 of the Charter.

Subsequent to rendering this decision, I was informed that the application was madeon the basis of incorrect legislation and that given the date of the child S.'s birth, the application should have brought pursuant to theDomestic Relations Act, R.S.A. 2000, c. D-14 ("DRA"). These supplemental reasons address this error. [2] The Charter challenge was commenced on October 28, 2010. As FLA was in force at that time the Applicants challengedthis Act as the offending legislation. Unfortunately, this was done in error. As the child in question was born in 2003, the governinglegislation was actually the DRA.

Unfortunately, neither the Applicant nor the Intervener realized this error until after reasons had beenissued. Given the time and expense devoted to the prior hearing, the parties agreed to provide brief submissions respecting theapplication of the DRA to the Charter challenge and the arguments previously raised, as opposed to holding a full "re-hearing" of thematter. As such, these reasons are to be read conjunctively with my Reasons for Judgment. [3] It is clear that the legislation governing the Applicant's Charter challenge is that which was in force at the time of the child'sbirth.

The rights and obligations attaching to parental status crystalize when a child is born and continue to operate to determineparentage throughout a child's lifetime. These rights and obligations vest at the time of birth and are not altered by subsequent legislativeamendments. There was no clear or unambiguous intent by the legislature to effect these rights or obligations through the introduction ofthe FLA. As our Supreme Court confirmed in Dikranian v.

Québec (Procureur Général), 2005 SCC 73, [2005] 3 S.C.R. 530, at para. 32: The principle against interference with vested rights has long been accepted in Canadian law. It is one of the many intentions attributed toParliament and the provincial legislatures. As E. A. Driedger states in Construction of Statutes (2nd ed. 1983), at p. 183, thesepresumptions ...were designed as protection against interference by the state with the liberty or property of the subject.

Hence, it was "presumed", inthe absence of a clear indication in the statute to the contrary, that Parliament did not intend prejudicially to affect the liberty or propertyof the subject. [4] See also Gustavson Drilling

(1964) Ltd. v. Canada (Minister of National Revenue), (SCC), [1977] 1 S.C.R.271 (S.C.C.); Ciecierski v. Fenning, 2005 MBCA 52, 258 D.L.R. (4th) 103. [5] Having determined that the applicable legislation is, in fact, the DRA, I turn now to the question of whether the DRAdiscriminates against the Applicant on the grounds of gender and sexual orientation contrary to s. 15 of the Charter.

[ 6 ]

Part 9 of the DRA establishes parentage under the Act . Section 78(1) deals with presumptions of parentage: Presumption of parentage 78(1) For all purposes of the law of Alberta, unless the contrary is proven on a balance of probabilities, there is a legal presumption that a person is the father of a child in any of the following circumstances: (

a) the person was married to the mother of the child at the time of the birth of the child; (

b) the person was married to the mother of the child and the marriage was terminated by (

i) a decree of nullity of marriage granted not more than 300 days before the birth of the child, or (ii) a judgment of divorce granted not more than 300 days before the birth of the child; (

c) the person married the mother of the child after the birth of the child and has acknowledged that the person is the father of the child; (

d) the person cohabited with the mother of the child for at least one year immediately before the birth of the child; (

e) the person is registered as the father of the child at the joint request of himself or herself and the mother of the child under the Vital Statistics Act or under similar legislation in a province or territory other than Alberta.

(2) Where there is a conflict between subsection (1) and any other enactment, the other enactment prevails. Parental Status Under the DRA [ 7 ] The Intervener argues that there is no discrimination resulting from the failure to strip Ms. D., the birth mother, of her parental status. I agree. This argument was fully addressed in my Reasons (see especially paras. 56, 59-60 and 62) and this analysis is equally applicable to the DRA . [ 8 ] Rather, the issue remains whether the governing legislation discriminates against the Applicant by failing to grant him parental status by operation of law.

In sum, the Intervener argues that because parentage under the DRA is based solely on the biological connection between parent and child, the Act treats the Applicant no different than any other "intended" parent. [ 9 ] I cannot accept the Intervener's submissions. First, I disagree with the Intervener's assertion that parentage under the DRA is based solely on biological connection. Rather, parentage under the Act arises from a presumption of parentage based upon a male's relationship with the mother of the child at the time of birth.

One of the key presumptions is that a male individual is presumed to be the legal father of a child if he was in a marriage or common-law relationship with the mother at (or in certain cases before) the time of birth. This presumption operates independent of biology and, by definition, is only applicable to heterosexual males. [ 10 ] The Intervener suggests that these presumptions are only applicable if a biological connection was not readily ascertainable. Again I must disagree.

As I read the Act the presumptions establish parentage but are rebuttable through the introduction of evidence to the contrary (for example, a blood test ordered under s. 84). Fathers falling outside of the Act 's presumptions may also seek to establish parentage utilizing a blood test under s. 84.

The fact that the presumptions operate as the primary indicia of fatherhood is evidenced in the Alberta Law Reform Institute’s Report No. 60: Status of Children, Revised Report , 1991 at p. 9: Because significant legal consequences flow from the fact of parentage, it is essential that a method be provided to establish it.

Section 8 [precursor to s. 78] follows the precedent of the existing law by providing for the identification of the parents of a child by presumption. The presumptions of parentage operate unless and until they are disproved . Because the presumptions may be incorrect, do not cover all situations, and sometimes will conflict,

section 9 provides a mechanism for the determination of parentage in court on a balance of probabilities. Where parentage is found, the outcome will be a declaration of parentage. [emphasis added]

[11] Nor can I accept the Intervener's submission that our courts have determined that parentage under the DRA is based solely ona biological connection. I do not read L.(R.) v. L.(V.) (2000), 1999 ABQB 689 , 251 A.R. 364 (Q.B.) as supporting theIntervener's claim in this regard. Rather, I read this case as simply stating that a declaration of parentage under the Parent andMaintenance Act, R.S.A. 2000, c. P-1 following a positive paternity test provided standing to apply for access under the DRA.

The Courtfound that nothing in the wording of either Act precluded a finding of paternity to be used in subsequent proceedings. Indeed, I note thatwhile both the Parent and Maintenance Act and the Child Welfare Act, R.S.A. c. C-12 define "father", the DRA provides no statutorydefinition of this term. The fact that it could have done so, and did so in other legislation, may be indicative of a conscious choice on thepart of the Legislature. The Court in L.(R.) v. L.(V.) reviewed judicial

definitions of the term, and found that "father" should be given anordinary or natural meaning. However, this finding does nothing to alter the presumptions of who should be considered a father under theDRA. Moreover, the declaration sought is not that the Applicant is the child's natural parent, but that he be recognized in law as a father. [12] The DRA bases male parentage on the existence of a spousal or common-law relationship with the birth mother; an occurrencethat will never be realized in a same-sex relationship.

As such, the DRA grants the benefit of presumed parentage (and with it, jointguardianship rights under s. 50 where the father is in a marriage or common-law relationship with the mother) to heterosexual couplesalone. This limited recognition through presumption operates to an unfair disadvantage for individuals not in a heterosexual relationshipwith the birth mother and is discriminatory. See paras. 43 - 50 of my Reasons. [13] I note that these presumptions act, in part, to recognize the rights of children born outside of marriage.

One of the major aimsof the parentage sections of the Act was to eliminate differential treatment towards children born outside of wedlock: see Status ofChildren, p. 1. Issues such as homosexual parentage and assisted reproduction were simply not within the contemplation of theLegislature when the Act was drafted. [14] The Intervener further argues that it was open to the Applicant to become a parent through the adoptive process. It submitsthat if Ms. D. had consented, the Applicant could have proceeded with the adoption process in 2003.

While accurate, this argumentignores the fact that the Applicant would have to obtain the consent of Ms. D. prior to becoming an adoptive parent (see. s. 59 of theChild Welfare Act). Had he been recognized as a parent by operation of law in the first instance, such consent would not be required as hewould not have to proceed through adoption.

In addition, by consenting to the adoption, the child's mother would lose her parental status(s. 72 of the Child Welfare Act), an occurrence which may not necessarily operate in the best interests of the child. [15] The Intervener further submits that the Applicant could have applied for guardianship status and that as guardianship andparentage are distinct concepts in Alberta (as compared to Ontario), the case at bar can be distinguished from A.A. v. B.B., 2007 ONCA2, 278 D.L.R. (4th) 519 (Ont. C.A.).

In its brief, the Intervener details the following incidents of parentage: · declaration of parentage is a lifelong immutable declaration of status; · declaration determines lineage; · declaration ensures the child will inherit on intestacy; and · the child is a Canadian citizen [16] The Intervener thus argues that the Applicant would enjoy a more significant legal relationship with the child if he applied forguardianship, as opposed to seeking parental status.

With respect to the Intervener, this argument ignores the fact that under the DRA, ahomosexual individual must engage in the additional step of applying for guardianship status, while a heterosexual male in a spousal orcommon-law relationship with the birth mother is both presumed to be a parent (s. 78) and is automatically a joint guardian of the childby operation of law (s. 50).

Thus, the DRA imposes an additional burden on homosexual males seeking guardianship status that is notfaced by men in a heterosexual relationship with the birth mother. [17] In addition, it is unclear whether the Applicant could have even applied for guardianship status in 2003. As the Intervenernotes, under the DRA the Applicant may have been unable to apply for guardianship in any event.

Section 52 of the Act allows courtappointment of a guardian jointly with the father or mother of the child. The wording of this

section seemingly limits the number ofguardians to two. As previously stated, under the DRA Mr. R. was not an automatic guardian over baby S. because he was not in aspousal relationship with Ms. D. (although he is entitled to the benefit of presumed parentage as the named father on the birth certificate).The only guardian of the child at the time of birth was Ms. D. (again who does not normally reside with the child). The limiting

provisions of the DRA mean that either the Applicant or Mr. R. could have applied for appointment as a guardian. The Act arguably didnot allow for both males to do so. [18] The Intervener points out that under the current legislation there is no limit to the number of guardians a child might have.That is no answer to the Applicant who would have been denied the benefit of all of the rights attendant with guardianship status for thefirst years of the child's life. [19] Moreover, this approach ignores the personal significance of being acknowledged as a parent.

The argument that ahomosexual male should be satisfied with guardianship status was raised and rejected in my Reasons: see paras. 87- 92 and 107-110.

Theweakness in this argument is summarized at para. 90, which, although it relates to the Family Law Act, is equally applicable to similarsubmissions under the DRA and bears repeating: The effect of the FLA is that when gay males in a committed relationship decide to have a family assisted by a female (in this instancewith the assistance of a friend who conceives for them) they should either be satisfied with guardianship status (which they must applyfor to receive) or they must undertake the protracted adoption process.

Denying a gay father (biological or intended) the status of legalparent has a negative effect on his human dignity. The significance of parental status has been recognized by our Supreme Court, assummarized in Trociuk v. British Columbia, 2003 SCC 34, [2003] 1 S.C.R. 835, at para. 15: Parents have a significant interest in meaningfully participating in the lives of their children. In B. (R.) v. Children's Aid Society ofMetropolitan Toronto, (SCC), [1995] 1 S.C.R. 315, at para. 85, La Forest J. wrote that "individuals have a deeppersonal interest as parents in fostering the growth of their own children".

In a similar vein, Wilson J. in R. v. Jones, (SCC), [1986] 2 S.C.R. 284, at p. 319, wrote: "The relations of affection between an individual and his family and his assumption ofduties and responsibilities towards them are central to the individual's sense of self and of his place in the world." [emphasis added] [20] As noted in A.A. v. B.B at para. 15 "a declaration of parentage provides practical and symbolic recognition of the parent-childrelationship" [emphasis added].

Neglecting to acknowledge the import of being recognized as a parent outside of the legal practicalitieslinked to this title fails to account for this symbolic recognition. [21] In sum, I find that like the FLA, the DRA discriminates against the Applicant on the grounds of gender and sexual orientationby failing to recognize him as a parent by operation of law. Gap in the Legislature [22] In my Reasons, I found that the FLA left both the Applicant (and his former partner) in a gap created under that Act. The DRAcreates a similar - if not wider - gap.

The drafters of the DRA had simply failed to turn their minds to the possibility of parentage insituations involving homosexual couples. Nor does it consider "intended" parents (as it does under the FLA) given that it does not addressparentage in instances involving reproductive technology. [23] As noted in the Alberta Law Reform Institute's Status of Children report, supra, one of the primary aims of the parentagesections of the DRA was to eliminate differential treatment towards children born outside of wedlock.

This is similar to the intent of theimpugned Ontario legislation (the Children's Law Reform Act) in A.A. v. B.B., as discussed at para. 21: The CLRA was progressive legislation, but it was a product of its time. It was intended to deal with the specific problem of the incidentsof illegitimacy...The possibility of legally and socially recognized same-sex unions and the implications of advances in reproductivetechnology were not on the radar scheme.

The Act does not deal with, nor contemplate, the disadvantages that a child born into arelationship of two mothers, two fathers or as in this case two mothers and one father might suffer. This is not surprising given thatnothing in the Commission's report suggests that it contemplated that such relationships might even exist. [24] Again similar to the situation in A.A. v. B.B., the DRA did not permit the making of a parentage order in favour of the

Applicant, as it contemplated one mother and one father. Like in A.A. v. B.B., the only way for the non-parental partner in a same sexunion to become a parent would be through adoption, with the result that one of the biological parents would lose parental status. [25] The issue of a legislative gap is dealt with at paras. 67- 74 and 134 - 140 of my Reasons. The creation of such a gap and theproblems and inequities arising from the same are nicely summarized by the Court in A.A. v.

B.B., which again bears repeating, at paras.31-33: The determination of whether a legislative gap exists in this case requires a consideration of whether the CLRA was intended to be acomplete code and, in particular, whether it was intended to confine declarations of parentage to biological or genetic relationships. If theCLRA was intended to be confined to declarations of parentage based on biology or genetics, it would be difficult to find that there is alegislative gap, at least as concerns persons with no genetic or biological link to the child.

As discussed above, the application judge was of the view that the jurisdiction to make parentage declarations is not confined tobiological or genetic relationships. The Alliance for Marriage and Family challenges that proposition. The Alliance points out that s. 1(1)of the CLRA refers to a person being the child of his or her "natural parents". I agree that the Act favours biological parents. For example,s. 10 gives a court power to order blood tests or DNA tests where it is called upon to determine a child's parentage. However, the Actdoes not define parentage solely on the basis of biology.

For example, s. 1(2) treats adopting parents as natural parents. Often one or bothof the adopting parents will not be the biological parents of the child. Similarly, s. 8 enacts presumptions of paternity that do not all turnupon biology; the obvious example is the presumption of paternity flowing simply from the fact that the father was married to the child'smother at the time of birth. Further, as Ferrier J. pointed out in T.D.L. v. L.R.L., (ON SC), [1994] O.J.

No. 896 (S.C.J.)at para. 18, the declaration made under s. 4(1) is not that the Applicant is a child's natural parent, but that he or she is recognized in lawto be the father or mother of the child. Further, even if the CLRA was intended to limit declarations of paternity and maternity to biological parents, that would not answer thequestion of whether there is a gap. Advances in reproductive technology require re-examination of the most basic questions of who is abiological mother.[...] [26] The DRA simply failed to contemplate parenting situations involving same-sex couples.

When the child S. was born, she wasraised primarily by her daddy and her papa. It was not in her best interests to be deprived of the legal recognition of both of theseindividuals as parents. As indicated in my Reasons, given the gap in the DRA, this situation is best corrected though the court's parenspatriae jurisdiction. The Applicant is therefore declared to be a parent of the child S. [27] In his Originating Notice of Motion the Applicant seeks a declaration of parentage, which I have granted.

Under the DRAwhile guardianship is usually tied to parentage, this status is not automatically granted to homosexual men as they will never be in aspousal relationship with the birth mother (s. 50). As such, neither Mr. R. nor Mr. H. would have been automatically deemed guardiansunder the DRA. The effect of this

section of the Act is discriminatory in that it denies homosexual male parents from automaticallybecoming guardians under the law. Although Mr. R. has not mounted a Charter challenge, I note that he has applied for - and beengranted - guardianship status under the FLA. [28] Mr. H. has also applied for guardianship status under the FLA. In my Reasons I found that as Mr. H.'s guardianshipapplication under the FLA was already elsewhere before this Court, it was not properly before me: see paras. 132 and 140. However, thequestion of guardianship under the DRA had not been addressed and thus is properly before me.

The guardianship provisions of the DRAdiscriminate against the Applicant on the basis of gender and sexual orientation by denying him a benefit that may otherwise be availableto heterosexual men in a spousal relationship with the birth mother. [29] Had the provisions of the DRA not discriminated against the Applicant, he would have been both a parent and a guardianunder that Act. If this initial discrimination had not occurred, the Applicant would not have been required to bring his current applicationunder the FLA.

As such, and in order to treat the Applicant on an equal footing as a heterosexual male in a spousal relationship with thebirth mother, the Applicant must be declared to be a guardian of the child S. However, a gap would have continued to exist under theDRA as it would have limited the number of possible guardians to two. Therefore, in exercise of my parens patriae jurisdiction, I wouldalso name the Applicant as a guardian over the child S. [30] I wish to stress that this declaration does nothing to alter any of the parenting arrangements, including custody and accessarrangements, currently in place.

Evidentiary issue [31] Lastly, I wish to address an evidentiary issue raised by the Intervener. Given the application of the DRA, the child S. now hasthree parents: Ms. D., Mr. R. (s. 78(1)(e)) and Mr. H. by the court's parens patriae jurisdiction. The intervener submits that it shouldhave been allowed the opportunity to adduce evidence to justify a two-parent policy under s.1 of the Charter.

While this may be a matterbetter dealt with by an appellate Court, there are specific points I wish to raise in addressing this concern. [32] The Intervener argues that pursuant to s. 24(3) of the Judicature Act, R.S.A. 2000, c. J-2, notice must be provided to theAttorney General detailing which enactment is in question as well as the reasonable particulars of the proposed argument.

The Intervenerargues that because the Applicant did not argue for a three-parent family in raising his Charter claim, that there has been no opportunityto present evidence justifying a two-parent policy. [33] The Intervener is correct in asserting that a proper factual foundation should exist before impugned legislation can beassessed. The importance of laying a proper evidentiary foundation upon which to adjudicate a Charter claim is well established: see forexample MacKay v. Manitoba, (SCC), [1989] 2 S.C.R. 357; Danson v. Ontario (Attorney General), (SCC), [1990] 2 S.C.R. 1086.

While I agree that "Charter decisions should not and must not be made in a factual vacuum" (MacKay atpara. 9) this is not, in distinction to MacKay, an instance where there was "not one particle of evidence" put before the Court.

Rather, theApplicant has introduced evidence supporting his allegation that the lack of legal recognition as a parent offends his Charter - protectedrights. [34] The Applicant's Notice of Motion clearly details the grounds of his Charter claim, stating that the legislation fails to provide"parental presumptions for intended gay male fathers" and "does not make provisions for the familial structure of a gay male family orprovide a remedy to accept these gay male parent sets." His claim clearly sought recognition as a parent, which ultimately was theremedy granted.

In addition, he expressly indicates that he would be relying on the parens patriae jurisdiction of the court in making hisapplication. The Intervener was thus aware of the reasons surrounding the claim.

It argued against the removal of the parental status ofthe birth mother in its brief. [35] While of course the Applicant's Notice of Motion was drafted in relation to the FLA, the policy arguments respecting amulti-parent model would have been substantially similar under either piece of legislation. [36] In any event, the Intervener had previously expressly acknowledged that it was not seeking to introduce additional evidence.Prior to mounting his constitutional challenge, the Applicant sought an advance or interim costs order to retain counsel to present theconstitutional argument appropriately: see reasons by Eidsvik J. at 2011 ABQB 119.

In denying the application, Justice Eidsvik relied onsubmissions by the Intervener that it was not seeking to lead additional evidence.

As she noted, at para. 11: 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. [37] In my original reasons, I found that the Applicant was operating under a misapprehension that he was precluded from arguingin favour of an inclusive parenting model, although he had clearly expressed a preference for a two-parent model to the exclusion of thebirth mother.

As such, I sought - and received - submissions from both the Applicant and Intervener on the multi-parent model. While theIntervener submitted that there was no evidence before the Court with respect to policy considerations effecting a multi-parent model, atno point did it indicate a desire to present evidence in this regard. [38] I find that the Applicant has lead adequate evidence as to the deleterious effect that the non-recognition of his status as aparent has had on his Charter-protected rights to allow for a proper consideration of the issues raised.

The Applicant's affidavits ofNovember 5, 2010 and October 7, 2010 detail the factual basis in support of his Charter claim. The Intervener knew that the lack ofparental recognition was being challenged and was aware that the Applicant was seeking legal status as a parent. It expressly stated adesire not to lead any evidence at the outset of the application during its submissions regarding the interim costs order. It will not berewarded for taking an alternate stance at this stage in the litigation.

Conclusion [ 39 ] In concert with my original Reasons for Judgment, I find that the Domestic Relations Act discriminates against the Applicant on the basis of gender and sexual orientation, in contravention of his Charter rights. The Act failed to contemplate parenting situations involving same-sex couples and as such, the Applicant was denied the benefit of the parental presumptions under s. 78 as well as the attendant automatic guardianship status granted under s. 50. Using its parens patriae jurisdiction, this Court declares the Applicant to be both a father and a guardian of the child S.

Heard on the 20 th day of April, 2011. Written submissions filed the 7 th day of November, 2011 and the 8 th day of November, 2011. Dated at the City of Calgary, Alberta this 19 th day of December, 2011. S.M. Bensler J.C.Q.B.A. Appearances: D.W.H. not represented by counsel Lillian Riczu, Alberta Department of Justice Constitutional Law Branch for the Intervener