Dares v. Newman, 2012 ABQB 328

Court of Queen ’ s Bench of Alberta Citation: Dares v. Newman, 2012 ABQB 328 Date: 20120518 Docket: 0601 03767 Registry: Calgary Between: Deborah Marguerite Marion Dares, Jeffrey Weldon Dares, Angela Julianne Toone and Robert Newton Lelsie Smith Plaintiffs - and - Kris Frazer Newman Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.L. Hunt McDonald _______________________________________________________ 1.

Introduction [ 1 ] This matter involves the entitlement to damages for grief and loss of the guidance, care and companionship of a deceased person under the Fatal Accidents Act , RSA 2000, c F-8, as amended by SA 2000, c 6 . The Applicants in this case seek to clarify the class of people who are eligible to claim bereavement damages under

section 8 of the Fatal Accidents Act .

[ 2 ] In broad terms, I am asked to determine whether the reference to “child” under

section 8 of the Fatal Accidents Act entitles stepchildren to receive bereavement damages and whether, in the event it does not, the current provision is unconstitutional on the basis that it unfairly discriminates between a biological child and a step-child, contrary to

section 15 of the Canadian Charter of Rights and Freedoms . [ 3 ] Section 8(2) (

c) of the Fatal Accidents Act confers on surviving children the right to $45,000 bereavement damages without reference to any other damages that may be awarded and without the need to introduce evidence of damage. In other words, the amount payable is fixed once liability is established; it is not contingent on proof of loss.

These bereavement damages are a statutory automatic damage which are a creature of statute not otherwise available at common law. [ 4 ] For the reasons that follow, I conclude that s. 8 does not include “stepchildren” in the class of recipients entitled to receive compensation under the Act and that failure to include stepchildren in the definition of “child” under the Act is not discriminatory under s. 15(1) of the Charter . 2. Background [ 5 ] Ken Smith was killed in a motor vehicle accident which occurred on April 3, 2004.

The Respondent, Kris Frazer Newman, was driving the car that collided with Ken Smith’s vehicle. [ 6 ] The Applicants in this case, Jeffrey Weldon Dares (Jeffrey), and Angela Julianne Toone (Angela), are the biological children of Ken Smith’s common law partner, Deborah Dares. Deborah Dares was a party to this action, and has settled her claim for damages separately. Jeffrey and Angela, the two remaining Applicants, seek damages from the Respondent under

section 8 of the Fatal Accidents Act ( FAA ), which the Respondent’s insurance provider has stated, through their counsel, they refuse to pay. Their refusal is based on the fact that in their view, the FAA does not entitle the Applicants to compensation for their loss. [ 7 ] Ken Smith and Deborah Dares began living together more than twenty years ago.

Throughout his long term relationship with Deborah Dares, Ken Smith raised her children Jeffrey and Angela as his own, from the time they were aged 8 and 4, respectively. [ 8 ] In her affidavit, Angela describes the close relationship both she and her brother Jeffrey formed with Ken Smith from the time he entered their lives until his death in 2004.

Angela and Jeffrey considered Ken Smith their father, and experienced tremendous grief upon his death, as one would expect considering the bond they had developed with the man they considered a close family member, and who had taken on a parental role towards the of the two of them. [ 9 ] Ken Smith was very involved in the lives of Angela and Jeffrey, taking Angela swimming and to Girl Guides as a child, and teaching Jeffrey to ride a two-wheel bicycle, to fish, to ride a motorbike and to drive a car when he was 14 years of age.

Jeffrey and Angela referred to Ken Smith as their father and he to them as his children. In all regards, Ken Smith stood in a parental position in respect of Jeffrey and Angela. [ 10 ] Jeffrey and Angela’s biological father was not involved in their upbringing, and as Angela states in her affidavit, was ‘not in the picture’. When Angela got married, it was Ken Smith, not her biological father, who walked her down the aisle.

Similarly, when she had her first child, Ken Smith became a devoted and caring grandfather-figure to her son Ben. [ 11 ] Ken Smith had one biological child of his own, Robert Smith, as well as two adopted children, Tracie-Lee Bennett and Sheila- Ann Smith, all of whom have received compensation for bereavement under the FAA .

It is Angela’s and Jeffrey’s belief that at the time of Ken Smith’s death, they were closer to him than any of Ken Smith’s other children; yet Robert Smith, Tracie-Lee Bennett and Sheila- Ann Smith have received damages for bereavement while they (Angela and Jeffrey) have not. [ 12 ] After Ken Smith began living with Deborah Dares and the Applicants, Tracie-Lee Bennett and Sheila-Ann Smith ceased communication with their adoptive father. Neither of them attended Ken Smith’s funeral. According to the Applicants’ uncontested

evidence, neither Tracie-Lee Bennett nor Sheila-Ann Smith had seen nor spoken with Ken Smith for a period of approximately 20 yearsprior to his death. [13] The Applicants are justifiably dissatisfied with the situation that has resulted in compensation for bereavement going to familymembers who were essentially estranged from the deceased Ken Smith, while those who were closest to him, and who considerthemselves his children, have at present received no compensation. [14] In this Application, the Minister of Justice and Attorney General of Alberta intervenes pursuant to s. 24(4) of the JudicatureAct, RSA 2000, J-2, as amended, to defend the impugned provision of the FAA. 3.

Issues [15] The central issues raised in this matter are as follows:

(1) Does the reference to “child” in

section 8 of the FAA include a stepson or stepdaughter, or child whose deceased “parent” stood inloco parentis?

(2) If the reference to “child” under

section 8 of the FAA does not include a stepchild, is

section 8 unconstitutional pursuant to

section 15of the Canadian Charter of Rights and Freedoms (the “Charter”), on the basis that

section 8 unfairly discriminates between a child and astepchild?

(3) If the reference to “child” under

section 8 of the FAA does not include a child where the deceased “parent” stands in loco parentis tothe surviving child, is

section 8 unconstitutional pursuant to

section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”),on the basis that

section 8 unfairly discriminates between a biological child and a child whose “parent” stood in loco parentis to thesurviving child? (

a) If

section 8 of the FAA is discriminatory and contravenes

section 15 of the Charter, is it justified under

section 1 of the Charter?

(4) If the FAA is found to be unconstitutional, what is the appropriate remedy? [16] I am also asked to consider whether the Applicants are either stepchildren of Ken Smith or children to whom Ken Smith stoodin loco parentis. 4. Analysis

(1) Relationship as Between the Applicants and Ken Smith [17] The Applicants are not the natural, biological children of Ken Smith, but are the children of his common law partner, DeborahDares. The Respondent contends that in light of the fact that Mr. Smith and Ms. Dares were not married to the Applicants’ mother, it isnot entirely correct to qualify the Applicants as stepchildren of Mr. Smith. [18] In essence, the defendants suggest that Jeffrey and Angela are not technically stepchildren because Deborah Dares and KenSmith were not married.

In the Respondent’s view, “stepchild” refers solely to the child of one’s husband or wife. This definition, theysubmit, is not only the one set out in dictionaries, but has also been adopted by Alberta courts: see, e.g. Katherine Barber ed., TheCanadian Oxford Dictionary (Toronto: Oxford University Press, 1998) sv “stepchild”; Alberta (Director of Child Welfare) v JPL, 1980ABCA 342 , [1980] AR 312, 118 DLR (3d) 133 (Alta CA), at para 20.

[ 19 ] Indeed, the term “family” may be attributed various

definitions. This complicates the undertaking of determining which relationships fall under the umbrella of “family” in a legal context. [ 20 ] The internal structure and composition of Canadian families consists of a broad range of permutations. The difficulty in characterizing “families” is described by authors Julien D. Payne & Marilyn A. Payne in Canadian Family Law , 3d ed. (Toronto: Irwin Law, 2008) at p 1. They point to the wide number of existing arrangements, not all of which fall within the meaning of a family: Many, but not all, Canadian families are the product of a marriage.

More often than not, the presence of children signifies a family relationship. Children may be born within or outside the marriage. Their parents may or may not live together. The parents may have lived together before or after the birth of the child but may no longer do so by reason of separation or divorce. Some children are adopted. In relatively rare situations, a child’s birth may have resulted from surrogate parenting arrangements or the use of new reproductive technologies. Children are usually family members of the household in which they reside but this is not invariably true.

Some children do not live with either of their parents or with aunts, uncles, or grandparents. They may live in foster homes or even with friends or neighbours. A new de facto family may coexist with the family of origin. [ 21 ] Canadian families are evolving, and mixed families where one parent stands in loco parentis or is a stepparent, are becoming ever more prevalent. Counsel for the Respondent submits that for the sake of legal clarity, there is a need to ‘draw a line’ to delineate which ties form those of a family and which do not. The parties are at odds as to where that line should be drawn.

When a family member is wrongly killed, there is no doubt that the immediate members of the victim’s family will suffer. Can it be assumed that this applies to stepchildren? Does drawing a line between natural or adopted children and stepchildren offend the Charter ? These questions are at the heart of this matter. [ 22 ] This case challenges the balancing of policies and assumptions in respect of stepchildren. If the Applicants succeed in this application and “stepchildren” is read into

section 8 of the FAA , without other legislative amendments, a stepchild would also receive bereavement damages upon the wrongful death of a stepparent, regardless of the closeness of relationship. [ 23 ] The Applicants argue that the FAA gives damages for bereavement to the surviving adult interdependent partner as well as the surviving spouse, and therefore take the position that the distinction between “stepchildren” and the children of an adult interdependent partner is not relevant.

They submit that in common parlance, the children of the adult interdependent partners are known as stepchildren to the parent who is not the biological parent. [ 24 ] The Respondent submits that with respect to the loco parentis relationship between the Applicants and the deceased, there is some affidavit evidence before the court, but that based on all of the criteria which must be considered by the Court to determine if that relationship existed, the evidence is inadequate. [ 25 ] On the evidence presented at trial, there is no doubt that the deceased, Ken Smith, stood in loco parentis to Jeffrey and Angela, and was a source of parental care, guidance and moral training to the plaintiffs.

The Applicants were four and eight years old when Ken Smith came to live with themselves and their mother. The four of them became a nuclear family. Ken Smith was the only father the Applicants ever knew; he certainly stood in loco parentis to the two children. [ 26 ] Extensive discussion on the legal definition of stepchildren, and whether the term “stepchild” includes the son or daughter of a common law spouse, is irrelevant for the purposes of this application, given my conclusions in the proceeding analysis.

I leave further discussions to a scenario where the legal definition of “stepchildren”need be expanded upon. It is not, in the case at bar, required in order to render a disposition of the matter. [ 27 ] For the purposes of this decision, I will use the terms “stepchildren” and “loco parentis ” interchangeably in my reasons.

(2) The Fatal Accidents Act

[28] The parties are in agreement that the Fatal Accidents Act in force at the time of Ken Smith’s death in 2004 is the one thatapplies in this case. This is the relevant legislation to determine whether or not the Applicants are entitled to compensation forbereavement. [29] However, the parties disagree as to the

interpretation of s. 8 of that version of the FAA and whether or not it provided forbereavement damages for stepchildren of the deceased. [30] In order to determine the class of persons included in the definition of “child” in

section 8 of the FAA, it is useful to examinethe intention of the Legislature and the history of the FAA. [31] As the FAA currently reads, under the impugned

section 8, a child is awarded bereavement damages upon the wrongful deathof a parent regardless of age or marital status. In addition, there are no other qualifiers limiting the award of damages, such as residingwith a custodial parent, or financial dependancy, or size of family. [32] Common law partners that meet the criteria established in the Adult Interdependent Relationships Act, SA 2003, c A-4.5 areawarded bereavement damages upon the wrongful death of their partner. Illegitimate children are included in the definition of “child” forboth sections 1 and 8 of the FAA, pursuant to the Family Law Act, SA 2003, c F-4.5, s. 7. [33] The policy choices reflected in

section 8 are: - the law should recognize the emotional suffering of close family members which arise upon the wrongful death of the deceased; - the family members should have a cause of action against the wrongdoer for damages for bereavement rather than beingcompensated indirectly as beneficiaries of the deceased’s estate; - the amount of damages should be established by statute; and - the damages should be awarded without evidence of loss so that there is no need for family members to testify in court about thegrief and agony they suffered as a result of death. [34] The history of the FAA is well documented in reports and is reviewed at length and in great detail in the Alberta Court ofAppeal case of Ferraiuolo v Olson (2004), 2004 ABCA 281 , 357 AR 68.

In that case, a 57 year old child who was marriedcould not claim damages for bereavement pursuant to the FAA because the Act provided that neither children over the age of 26 normarried children could claim bereavement damages. [35] Fraser CJ summarizes the historical treatment of damages for grief on wrongful death in her comments at para 68: What does this historical review reveal?

First, the quest to secure fair compensation for victims of wrongful death - both the deceasedand his or her immediate family members - for the damages inflicted upon them, including, in the case of surviving family members, thegrief they suffer, has been a long and difficult one. [36] In Ferraiuolo, the Court concluded that in denying children over the age of 18 and children who are married or living with acohabitant the right to damages, s. 8(2)(

c) of the FAA improperly discriminated against certain classes of claimants on the basis of ageand marital status under s. 15(1) of the Charter and could not be saved under s. 1. References to married children and children over theage of 26 were subsequently expunged from the legislation such that s. 8(2)(

c) was to thereinafter read: “$25,000 to each child of thedeceased person”: Ferraiuolo at p 32. [37] The Applicants submit in this case that the FAA similarly improperly discriminates against stepchildren on the basis of thestatus of the child under s. 15(1) of the Charter.

A) ALRI Reports [ 38 ] The Alberta Law Reform Institute (formerly known as the Institute of Law Research and Reform) has produced extensive reports on reform to the FAA .

In 1977, the Institute released Report No. 24 - Survival of Actions and Fatal Accidents Act Amendment, April 1977, in which it discussed bereavement compensation. [ 39 ] The Institute recommended at that time that only the closest persons to a deceased, namely the parents of the deceased, the spouse of the deceased, or the children of the deceased should receive compensation for bereavement. [ 40 ] The 1977 report of the Institute of Law Research and Reform dealing with the FAA set out very clearly the purpose of the Act at p. 19: We do not wish to set off a new round of litigation to establish the limits of a new cause of action and the measurement of damages under it ...We think that the consequences of requiring them [being the claimants of benefits] to come into court to prove their grief as a condition of recovering compensation would be worse than the consequences of the occasional windfall. [ 41 ] In May 1993, ALRI released Report number 66, entitled Non-pecuniary Damages in Wrongful Death Actions - A Review of

Section 8 of the Fatal Accidents Act , in which it also highlights the purposes of the scheme at p. 2: This court can award these amounts without evidence of damage - that is, there is no need for close family members to testify in court that they suffered grief and agony as a result of the death. [ 42 ] In its review of

section 8, ALRI noted that the price of a statutory scheme which allows the law to acknowledge the grief and loss of guidance, care and companionship and allows family members to deal with the tragedy without the intrusion of litigation, is the loss of discretion and flexibility.

This is an acceptable price, ALRI concluded, if the scheme compensates the majority of people who would have received compensation under a discretionary scheme. [ 43 ] With respect to the classes of eligible claimants under s. 8 of the act, ALRI indicates at p. 45 of Report No. 66: There will be others that grieve over the loss of the deceased, such as step-parents and siblings, who will not be compensated under these proposals. Yet, we cannot support a fully discretionary system that compensates all who can prove grief and loss of guidance, care and companionship.

In our opinion, it is better to compensate those who, in the majority of cases, have the closest relationship with the deceased and keep caring families out of litigation arena on such issues. This is where we think the recovery of damages “is halted by the barrier of commercial sense and practical convenience”. [ 44 ] ALRI further expresses the view that the spectrum of relationships between stepparents and stepchildren varies to such a degree that inclusion of these relationships in s. 8 is not practical, and as such, should be excluded from the compensatory scheme for bereavement.

This opinion is evidenced by ALRI’s comments at footnote 33 on page 46 of Report number 66: Nor do we think that it would be wise in [sic] include step-parents or siblings in our statutory scheme. The quality of the relationship between step-parents and stepchildren and the quality of the relationship between siblings varies to such a degree that it is not possible to create a statutory scheme of compensation . [emphasis added].

[ 45 ] Despite these comments with respect to step-relationships, I note ALRI’s acknowledgment that society’s expectations may change over time and such changes ought to be reflected in the legislation: p. 46. The legislation was in fact amended a number of times to modernize the Act. Specifically, the Act was amended by the Alberta Legislature in 1994, 2002 and in 2010.

B) Legislative Amendments [ 46 ] Beginning with the 1994 and 2002 amendments, legislative discussions recorded in the Alberta Hansard on May 30, 1994 and on April 8, 2002 reveal that there was no debate in the Legislature as to the exclusion of stepchildren from bereavement benefits conferred by the FAA . [ 47 ]

Section 8 of the FAA was amended twice in 2002 pursuant to the Justice Statutes Amendment Act, 2002 c 17 and the Adult Interdependent Relationships Act , 2002, c A-4.5. Under both of these amendments there was no differentiation between stepchildren and natural born children. [ 48 ] The Legislature has recognized the unfairness in restricting children’s damages for grief on wrongful death of a parent based on age. When the Legislature amended the FAA in 2002 to delete all age restrictions for damages claims for grief, the MLA who introduced the amendments, Hon.

Brent Rathgeber, stated in Alberta Hansard (30 April, 2002) at 1069: Now, I appreciate that the insurance industry is not in favour of this amendment and has undertaken a considerable lobby effort in that regard, but I say that every life has intrinsic value and that every person, regardless of their age, who is wrongfully and fatally injured has someone who will grieve for him or her . [emphasis added] [ 49 ] These comments, as noted in Ferraiuolo at para 105 , speak to the discriminatory effect of s. 8 and why it has been amended to delete the age limitation on the basis that it was discriminatory. [ 50 ] One subsequent amendment to the FAA occurred in March of 2010 under the Fatal Accidents Amendment Act , 2010, c 6.

Among the amendments included in this Bill were changes to Sections 1 (

a) and 8(1) (

a) of the FAA . For ease of reference, the relevant changes are outlined in the following table: Previous FAA (pre-March 2010 amendments) Current FAA (post-March 2010 amendments)

Section 1(a) “child” includes a son, daughter, grandson, granddaughter, stepson, stepdaughter, and illegitimate child. “child”, except in

section 8 , includes a son, daughter, grandson, granddaughter, stepson and stepdaughter. [emphasis added] Section 8(1)(a ) “child” means a son or daughter, whether legitimate or illegitimate. “child” means a son or daughter. [ 51 ] The most significant distinction between the wording of s. 1(

a) in effect at the time of Ken Smith’s death, and in s. 1 (

a) as amended in 2010, according to the Applicants, is that in the relevant version of the Act, the words “except in

section 8 ” are not present. This addition, according to the Applicants, creates ambiguity. The Applicants submit that this distinction implies that the legislature intended that the definition in s. 1(

a) of the previous version of the Act, which states that “child” includes a stepson and stepdaughter, is intended to apply throughout the act. [ 52 ] In other words, the Applicants take the position that prior to the March 2010 amendments, the definition of “child” in

section

8 included a stepson and stepdaughter. [53] However, it seems to me that the definition of “child” in

section 8 was simply amended to remove the words “whetherlegitimate or illegitimate”, so as not to distinguish between legitimate and illegitimate children. Hansard from March 16, 2010 indicatesat p 38 that “Consistent with current demographics and family law legislation all children are treated as children of their parentsregardless of their parents’ relationship” and further indicates at pp. 52-53 from Hansard on March 10, 2010 that “all children should beconsidered equal regardless of the marital status of the child’s parents”.

The definition now reads simply “‘child’ means a son ordaughter”. [54] Based upon these Hansard extracts, and the resulting amendments, it seems clear that the intention of the legislature was notto disentitle stepchildren from bereavement compensation, but to update the Act by removing the reference to “legitimate” and“illegitimate” children, a distinction which is no longer relevant in our modern society. [55] Further, a reading of

section 8 as the Applicants propose is at odds with the Court of Queen’s Bench decision in O’Hara vBelanger (1989), (AB KB), [1990] 69 Alta LR (2d) 158, 98 AR 86. In that case, Berger J. determined thatstepchildren were not eligible for $3,000 bereavement benefit under the FAA. [56] In O’Hara, Berger J. was asked to determine whether damages under the FAA were open to a stepson. In doing so, heexamined whether a stepson is a “child” of the deceased parent within the meaning of s. 8(2)(

c) of the Act. That case involved a caraccident where a man was killed and his wife and her son were injured. The husband was not the father of the son. Justice Bergerconsidered the wording of the

definitions in ss. 1 and 8 of the Act (which were identical to the

definitions in force in 2004, when KenSmith was killed). [57] Berger J. noted that the word “child” was defined in s. 8(1)(

a) in the Act as “a son or daughter, whether legitimate orillegitimate”. By contrast, s. 1(

a) of the Act provided that “‘child’ includes a son, daughter, grandson, granddaughter, stepson,stepdaughter and illegitimate child”. [58] In

section 1, the word “child” was held to have a broad meaning. The clear implication, in the view of Berger J., was that thelegislature intended the word “child” to have a more restricted meaning in s. 8 than in the rest of the Act. The application of the maximexpressio unius est exclusio alterius led him to conclude that stepchildren and grandchildren are excluded from eligibility for thebereavement benefit under s. 8(2)(c). [59] This conclusion was bolstered by s. 13(

a) of the

Interpretation Act, RSA 1980, C I-7, which read: 13

Definitions and other

interpretation provisions in an enactment (

a) are applicable to the whole enactment, including the

section containing the

definitions or

interpretation provisions, except to theextent that a contrary intention appears in the enactment. [emphasis added] [60]

Section 13 of the

Interpretation Act has not changed in the relevant time. [61] At p. 204, Berger J. specifically states: It is clear that by providing a more restrictive definition which is specifically applicable to s. 8, the legislature is expressing a “contraryintention” as to the applicability of the broad definition in s. 1 of the section. [62] As such, the definition in

section 8 was found to prevail over the definition in

section 1. He further refers in his judgment to Driedger’s text Construction of Statutes, 2nd ed. (1983), where it is stated at p. 121:

...it hardly needs argument now that a statute includes only what can be brought into the words of the statute and excludes all else. [ 63 ] Berger J. ultimately concluded that for the purposes of s. 8, a “child” is restricted to a natural son or daughter, whether legitimate or illegitimate, and that the plaintiff stepson was not entitled to recover bereavement damages under the Act.

C) Interpretation of the FAA [ 64 ] The Respondent takes the position that the impugned provision under the FAA is very clear: it does not grant bereavement benefits to stepchildren. In the Respondent’s view, the Act clearly distinguishes between a son or daughter, on the one hand, and a stepson or stepdaughter on the other hand. The statute is presumed to be coherent, and words a presumed to have the same meaning throughout. [ 65 ]

Section 8 of the Act deals with entitlement to damages for bereavement. In that definition in

section 8 of the Act, “child” is defined to mean son or daughter whether legitimate or illegitimate, but does not specifically refer to or include stepson or stepdaughter. As set out above, the Applicants argue that the narrow definition in

section 8 of the Act incorporates the broader definition in

section 1 of the Act. This argument is contrary to basic principles of statutory

interpretation, and has already been rejected by this Court in O ’Hara . [ 66 ] The significance of this definition and the proper

interpretation of it is most easily seen when one compares that definition to the definition in s. 1(

a) of the same legislation. The principles of statutory

interpretation make it very clear that the more specific definition for a limited purpose within the Act must be given some meaning. One must take it to be that the Legislature had a purpose under s. 8 of providing a unique and distinct definition of “child” with respect to damages for bereavement. [ 67 ] It is incumbent upon Courts to give meaning to the difference between the

definitions. In this case, the difference in

definitions signifies that the Legislature did not intend stepsons or stepdaughters to receive damages for bereavement, although they might otherwise receive compensation under other portions of the FAA . [ 68 ] This is precisely the conclusion reached by Berger J. in O ’Hara . Berger J. applied all of the usual and proper and longstanding rules of statutory

interpretation in reaching his conclusion. There was no error on the part of Berger J., and although that decision is not binding upon me, it is persuasive and I see no rational or reasonable basis upon which to come to another decision. [ 69 ] Counsel for the Applicants contends that I am not bound by Berger J.’s decision in O ’Hara , and submits that: - In reaching his conclusions, Berger J. did not give sufficient weight to s. 1 of the FAA which states that the definition of “child” is to include a stepchild throughout the Act. Further,

section 8 does not specifically exclude stepchildren, and thus the Court should read s. 1 and s. 8 together and come to the conclusion that the Legislature intended to include stepchildren under s. 8; - Berger J. did not consider the Institute’s reports and did not discuss Hansard.

He therefore failed to glean the Legislature’s intent, namely that there be no differentiation between stepchildren and natural children in s. 8; - Berger J.’s reference to Driedger’s text on construction of statutes supports the Applicants’ submission that the word “child” in s. 8 can very well include stepchildren, and is meant to exclude other family relationships, such as brothers, sisters, cousins, grandchildren and the like; - With respect to Justice Berger, it does not make sense that the Legislature intended that natural children, whether legitimate or illegitimate, should be able to receive bereavement benefits but a stepchild could not;

[70] Perhaps the most persuasive argument advanced by the Applicants to depart from the O’Hara decision is the caution to beexercised in applying the expressio unius est exclusio alterius maxim. [71] The Applicants point out that the rule of implied exclusion is only a guide to statutory

interpretation and should not be followed rigidly: Dorval v Dorval, 2006 SKCA 21 , [2006] 264 DLR (4th) 512 (Sask CA) at p. 516. In Dorval, Cameran J.A.cautions that the indiscriminate application of expressio unius may lead to inconsistency or injustice and that while it can be a “valuableservant, it can be a dangerous master”: p 516. [72] Despite these legitimate concerns raised by the Applicants, I do not think Berger J. in O’Hara applied the expressio uniusprinciple inconsistently or indiscriminately.

Aside from that argument, the Applicants have not shown any meaningful distinctionbetween O’Hara and the current case. As such, O’Hara was correct and should be followed in the case at bar. [73] The Applicants also advance the position that if the language of legislation suggests two

interpretations, the Court shouldadopt the

interpretation that does not lead to injustice: Shell Canada v BC (1989), (BC CA), 64 DLR 227 (BCCA) atp 233. If the language of an enactment should suggest two meanings, it is posited, the meaning which does not take away rights of anindividual is the meaning to be preferred: Greater Niagara Transit Commission v Matson (1977), (ON SC), 16 OR(2d) 351 (Ont H Ct

J) at p 359. [74] While those principles are correct, to say that the differences in

definitions in the Act is not clear is to manufacture ambiguitywhere none exists. [75] As counsel for the Attorney General of Alberta rightly points out, the statute is very clear. It makes a distinction in thedefinitions of “child” for the purposes of ss. 1 and 8. [76] The result of that clarity is that there is no ambiguity in the

definitions. The definition sections read in their grammatical andordinary sense are clear:

section 8 does not include “stepchild”. [77] The Supreme Court of Canada has directed that for the purposes of statutory

interpretation, “the words of

an Act are to be readin their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, andthe intention of Parliament”: Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 (SCC), at p. 41, citing Elmer Driedger in Construction of Statutes, (2nd ed. 1983)). [78] A broader, general rule, stated in Fraser v Ontario (Attorney General), 2011 SCC 20, at para 282, is that when a statute isunambiguous, courts should give effect to the clearly expressed legislative intent, even if it leads to the conclusion that the statute wasunconstitutional and should be struck down for breach of the Charter (citing Hogg, A.A.

Bushell Thornton and W.K. Wright, CharterDialogue Revisited - or ‘Much Ado About Metaphors’ (2007), 45 Osgood Hall L.J. 1, at p. 12). [79] Here, the statute is unambiguous, and as in O’Hara, the principle of expressio unius est exclusio alterius applies. Thedefinition of “child” in s. 8 versus the broader definition in s. 1 is a classic illustration of the maxim. Where the legislature specificallyintended to include a stepdaughter or stepson, as in s. 1, it stated so explicitly.

By excluding a stepdaughter or stepson in s. 8, thelegislature clearly indicated that the word “child” in s. 8 does not include a stepchild. There would be little other reason to provide aspecial definition of “child” in

section 8 of the Act (See Pierre-André Coté, The

Interpretation of Legislation in Canada, 3d. Ed (Scarborough, Ont: Thomson, 2000) at 336; Ruth Sullivan, Sullivan on the Construction of StatutesI, 5th ed. (Markham, Ont.:LexisNexis, 2008) at 243-250). [80] I also note that Berger J.’s decision in O’Hara was rendered in 1989. Since that time, both the Legislature has revisited theFAA on a number of occasions. The excerpts from Hansard on which the Applicant purports to rely do not refer to stepchildren. There isno indication that the Legislature intended to extend bereavement damages to stepchildren. The Institute of Law Research andReform/ALRI has also given consideration to the FAA since the O’Hara decision in 1989.

[81] Those considerations have specifically included the appropriate scope of s. 8 of the FAA. At no time since Berger J.’s decisionin 1989 has either ALRI or the Legislature commented at any surprise as to his

interpretation, or any disappointment or dismay at thatinterpretation. I take from that, that in fact his

interpretation was that which was intended by the authors of the legislation. [82] Accordingly, I find that the definition of “child” in s. 8 of the FAA does not include stepchildren.

(3) Constitutionality of

Section 8 of the FAA [83] The Applicants submit that if

section 8 of the FAA is deemed not to include stepchildren, and as a result renders themineligible for bereavement damages, then

section 8 is unconstitutional and offends the Charter of Rights and Freedoms. [84] Section 15(1) of the Charter states: Every individual is equal before and under the law and has the right to equal protection of the law without discrimination and, inparticular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [85] The Respondents and the Attorney General of Alberta take the position that

section 8 of the Act does not infringe

section 15 ofthe Charter.

A) The Law [86] The Applicants and the Respondents do not dispute the law establishing the approach to a s. 15(1) Charter analysis. [87] Over the course of the Charter’s 30-year history, the test for discrimination under s. 15(1) has undergone a number ofchanges. It has ebbed and flowed, and various judicial approaches to determine substantive discrimination requiring constitutionalprotection have emerged.

Over time, the Supreme Court of Canada (SCC) has varied the analytical approach to assist parties and Courtsin determining Charter discrimination. [88] For example, in Law v Canada (Minister of Employment and Immigration), (SCC), [1999] 1 SCR 497, theSCC suggested that discrimination be defined in terms of the impact of the law or program on the “human dignity” of members of theclaimant group, having regard to a number of factors: (1) preexisting disadvantage, if any, of the claimant group; (2) degree ofcorrespondence between differential treatment and the claimant group’s reality; (3) whether the law or program has an ameliorativepurpose; and (4) the nature of the interest affected (“the Law factors”). [89] Most recently, the SCC restated the difficulties in finding a clear judicial analysis which functions to find Charter discrimination in a purposive sense in R v Kapp, 2008 SCC 41, [2008] 2 SCR 483, 294 DLR (4th) 1.

The SCC recognized in that case thedifficulty of employing “human dignity” as a legal test. It also recognized the resurfacing of an artificial comparator analysis focused ontreating likes alike. [90] In Kapp, the SCC addressed these difficulties by rejecting a literal (formal) approach to the Law factors. Instead, itreemphasized its commitment to substantive equality by returning to the template first introduced in Law Society of B.C. v Andrews, (SCC), [1989] 1 SCR 143, 56 DLR (4th) 1. The two-part test established in Andrews supports the concept of substantiveequality over formal equality.

These two steps, restated in Kapp, are: 1. Does the law create a distinction based on an enumerated or analogous ground?

Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? [91] Since the Kapp decision, the SCC has declined to apply the 4-part test developed in Law as if it were a legislative disposition.Instead, it has approached substantive equality as combatting discrimination, defined in terms of perpetuating disadvantage andstereotyping: see Manitoba (Director of Child and family Services) v CA, 2009 SCC 30 , [2009] 2 SCR 181, at paras 109, 150,226; Ermineskin Indian Band & Nation v Canada, 2009 SCC 9 , [2009] 1 SCR 222 at para 201; Hutterian Brethren of WilsonColony v Alberta, 2009 SCC 37 , [2009] 2 SCR 567 at paras 106 - 108; Withler v Canada, 2011 SCC 12 at para 30; Fraser vOntario (Attorney General), 2011 SCC 20 at para 116. [92] The SCC established in Andrews that the person claiming Charter discrimination bears the burden of proof on a balance ofprobabilities: para 22.

The claimant must establish that he or she has been denied a benefit that others are granted or carries a burden thatothers do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1). [93] The enumerated grounds of discrimination under the Charter are: - race, - national or ethnic origin, - colour, - religion, - sex, - age, or - mental or physical disability. [1] An analogous ground is one that is not listed in s. 15 of the Charter, but is recognized nonetheless on the basis of a personalcharacteristic that is actually immutable (such as race or gender for example) or constructively immutable (changeable only atunacceptable cost to personal identity): Withler v Canada, 2011 SCC 12, at para 33.

The SCC has recognized citizenship, marital status,and sexual orientation as analogous grounds of discrimination. [2] I am tasked, in the present matter, with determining whether the status of a child is an analogous ground. [3] The criteria for identifying an analogous ground were discussed by a majority of the Supreme Court in Corbiere v Canada(Minister of Indian and Northern Affairs), (SCC), [1999] 2 SCR 203. An analogous ground is one based on a “personalcharacteristic that is immutable or changeable only at unacceptable cost to personal identity”.

Justices Bastarache and McLachlin furtherexplained at para 13: This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based oncharacteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equaltreatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, likerace, or constructively immutable, like religion.

Other factors identified in the cases as associated with the enumerated and analogousgrounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historicallydiscriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics,which too often have served as illegitimate and demeaning proxies for merit-based decision making. [4] Provided that a claimant establishes a distinction based on one or more of the enumerated or analogous grounds, the claimshould proceed to the second step of the analysis.

At the second step, the question is whether, having regard to all relevant factors, thedistinction the law makes between the claimant group and others substantively discriminated by perpetuating disadvantage or prejudiceto the claimant group, or by stereotyping it.

A) The Applicants’ Position [5] The Applicants direct me to the case of Law v Canada (Minister of Employment and Immigration), (SCC),[1999] 1 SCR 497, where the Supreme Court of Canada held that violation of s. 15(1) requires proof of discrimination on an enumeratedor analogous ground and substantive discrimination that violated human dignity. [6] Counsel for the Applicants, in his oral submissions and in his briefs, made a number of valid and compelling arguments infavour of recognizing status of the child as a stepchild as an analogous ground.

The following paragraphs discuss the crux of hisarguments. [7] The Applicants acknowledge that there is case law to the effect that a stepchild relationship is not an analogous ground. Thisis found in the British Columbia Supreme Court decision McCrea v Bain Estate, 2004 BCSC 208. [8] In that decision, a son of a common law spouse brought a claim of discrimination alleging that the Wills Variation Act,RSBC 1996, c 490, discriminated against him on the basis of “family status”. The Court noted that the better claim of distinction wouldhave been adopted versus non-adopted child.

Regardless, the Court found that the status of the child was not recognized as an analogousground and that the Wills Variation Act did not discriminate against him. [9] The Court declined to recognize the “non-adopted” child’s status as an analogous ground because there was no clear analogyto his status when compared to the listed grounds of race, ethnicity, colour, religion, sex, age, or disability: at para 93. [10] Even if recognized as an analogous ground, the purpose of the Wills Variation Act in that case was held to be remedial.

Itpermits the Court to impose obligations on testamentary autonomy in certain circumstances. While the claimant in McRea was precludedfrom advancing a claim against his step parent, he still had a claim against his own natural father. The legislation does not promote theview that a stepchild is incapable or less worthy of recognition, or has less value as a human being.

In addition, the Court took theposition that the person in loco parentis had the legal option of adoption, or changing his Will to designate the claimant as a beneficiary:paras 95, 96. [11] The child in McRea was also found to not be discriminated against as a stepchild, as he could claim against his own birthfather. [12] In the Applicants’ view, McRea is wrongly decided on the basis that non-adopted children are an analogous group.

Theydisagree with the decision on the issue of whether a child’s status as a stepchild is mutable: only a stepparent can change this status byway of adoption, not the stepchild. [13] Despite the McCrea decision, the Applicants point to the case of Ferraiuolo, where the Alberta Court of Appeal determinedthat marital status was an analogous ground, and state that the similarities between this case and Ferraiuolo are significant. [14] Just as marital status was recognized as an analogous ground under s. 15(1) of the Charter in Ferraiuolo, they argue, so tooshould the issue of whether a child is a stepchild as opposed to a natural child of a parent in this case. [15] The Applicants argue that the FAA draws a distinction between stepchildren and all other children in that it states that childrenare entitled to damages for bereavement, but not stepchildren.

It is argued that whether a child becomes a child of a parent by biology, orby the child’s parent commencing living in a common law relationship and creating a step-child/stepparent relationship, should beirrelevant. Does the distinction create a disadvantage?

[16] As to the issue of disadvantage, the Applicants submit that the impugned provision in the case at hand withholds a benefit,namely damages for bereavement, with the effect of perpetuating and promoting the view that they are less capable, less valued as ahuman being or a member of Canadian society.

As was stated by Fraser CJ in Ferraiuolo at p. 19: ...being deprived of a fair and equal share of resources, rights or benefits on the basis of an enumerated or analogous ground goes to thecore of human dignity. [17] Counsel for the Applicants states that the FAA has hurt the dignity of Jeffrey and Angela, and of all other stepchildren, as itimplies that these children do not suffer like other children when their parents are taken in a tragic accident. [18] In Law, the SCC outlined four contextual factors that may identify a disadvantage that perpetuates prejudice or stereotyping.The four factors are: 1.

Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. 2. The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, orcircumstances of the claimant and others. 3. The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. 4.

The nature and scope of the interest affected by the impugned law. [19] With a view to the contextual factors listed in Laws, the Applicants state that the act discriminates against stepchildren on thebasis that it implies they do not love their parents as much as biological children, and perpetuates the myth or the stereotype thatstepchildren are not as desirable as their biological counterparts, or do not feel grief on the death of a stepparent to the same extent as achild does as a result of the death of a biological parent.

Further, the law has no ameliorative purpose for stepchildren, and affects theinterests of stepchildren by trivializing the loss they feel for their stepparent, by preventing them from seeking bereavement damages. [20] While the Applicants concede that stepchildren have not been historically discriminated against to the same extent as othergroups in Canada, they highlight the substantive discrimination reflected in s. 8 of the FAA itself as evidence of discrimination whichimplies that a stepchild’s grief is not as vivid as a natural child’s grief for a parent. [21] They also submit that the argument against a finding of discrimination on the basis that a stepchild may claim bereavementdamages under the FAA upon the wrongful death of their own biological parent does not hold up to scrutiny; the policy decision ofinstituting the legislation in the first place was to compensate those closest to the deceased.

The key issue is not whether the deceased isa step- or biological parent, but whether the child is a close family member who in fact grieved for their lost parent. [22] Other areas of law, it is submitted, have recognized the relationship between stepchildren and stepparents.

In family law, forexample, a stepparent can be forced to pay child support for his stepchildren when he or she stands in loco parentis: see Chartier vChartier, (SCC), [1999] 1 SCR 242; Theriault v Theriault, 1994 ABCA 119 , [1994] 113 DLR (4th) 57, 2RFL (4th) 157; GD v GM, (NWT SC), [1999] 47 RFL (4th) 16. [23] Finally, the Applicants direct me to the words of Fraser CJ at p. 28 of Ferraiuolo: Allowing all children, irrespective of marital status or age, to recover for the grief suffered on wrongful death of their parent, constitutes atangible recognition by society of the harm caused by the wrongful acts. [24] This same recognition, they submit, should be extended to stepchildren by acknowledging the discrimination they experienceas a result of the differential treatment between natural children and stepchildren under s. 8 of the FAA.

B) The Respondent’s Position and Position of the Attorney General [25] The Respondents and the Attorney General of Alberta contend that neither the first nor the second steps of the Kapp test aremet. In their view, while

section 8 of the Act creates a distinction between children and stepchildren, the status of being a stepchild is notan enumerated or analogous ground. Similarly, the Applicants’ argument fails on the second Kapp factor, in that even if the status of thechild were an analogous ground, the distinctions between stepchild, biological or adopted child do not create a disadvantage.

Analogous Ground: [26] While there is very little case law where Courts have been asked to determine whether the status of the child, be it a birthchild, adopted child, stepchild, etc., is an analogous ground, the McCrea case sets a compelling precedent. [27] In disinclining to find that “stepchild” is an analogous ground, the Court in McCrea states at paras 92-93: ... today, in terms of recent social, political and legal history, a non adopted or “stepchild” is not denigrated.

There is general socialacceptance of couples and their children in “common law” relationships, and the children are not subject to social stigma in terms ofcurrent social attitudes. ... There is no recent history of discrimination or animus against non adopted or stepchildren that one finds in considering the listedgrounds. Non adoped or stepchild is not a status or group where one senses that they have been the subject of stereotypical anddemeaning decision making.

It is not an immutable characteristic that has given rise to the denial of equal treatment. [28] There, the Court found the status of being a stepchild is not an analogous ground, as stepchildren are not, as a group,disadvantaged. [29] Analogous grounds were described by the SCC in Corbiere v Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 SCR 203 as characteristics which may be identified by being immutable, discrete insular minority groups that havebeen historically discriminated against. [30] Being a stepchild is not a source of historic disadvantage.

Stepchildren are not a discrete and insular minority and are notsubject to widespread discrimination in our society. [31] In addition, the status of being a stepchild is not immutable, according to the Respondent. Although it may not be within thestepchild’s power to unilaterally change his or her status in this respect, the legal step of adoption can be taken to create a different child-parent relationship if that is desired. A stepparent can choose to change the status of the child through adoption if the stepparent iswilling to assume the obligations of parenthood.

As Justice Dea noted in McNeil v MacDougal, 1999 ABQB 945, (1999) 256 AR 289(Surr Ct), at para 68, it is appropriate that the stepparent have the choice to become a parent: The choice of whether or not to formalize an in loco parentis relationship, or a de facto adoption relationship, is a right which is solely forthe adopting parent to accept or decline. Formal adoption is a serious choice, almost never taken lightly. For most adopting parents,formal adoption means the child becomes their child as if born to them, with all the legal burdens and benefits which come withformalizing that relationship. [32] Had Mr.

Smith formally adopted the Applicants, the Applicants would be entitled to damages under

section 8 of the Act.

[33] The Respondent points out that Angela states in her affidavit that “There was never any legal adoption papers put in place forJeffrey and me by my parents, but Ken Smith and my mother, Deborah Dares, never thought it was necessary”. [34] Ken Smith had previously adopted two children, Tracie-Lee Bennett and Sheila-Ann Smith. It can be inferred that he wasaware of adoption as an option open to him and he understood the process and its effects. [35] Whatever his reasons may have been, Ken Smith chose not to adopt Jeffrey and Angela.

While the Applicants may beunhappy with the effect of his choice, the Respondents submit that the right to choose whether or not to become a legal parent, assumingall the obligations of parenthood and bestowing on them all of the rights as his legal children, ought to be respected. [36] I am not aware of any authority that has considered the question of whether the loco parentis relationship is an analogousground or not, but it is submitted that if the stepchild relationship, which is a more formal, more easily determined relationship in manyrespects, is not an analogous ground, then it is difficult to imagine how the loco parentis relationship could be an analogous ground. [37] It is also submitted by the Respondent that whether or not there is a loco parentis relationship, is not an immutablecharacteristic of the child.

Further, case law discussing the concept of loco parentis emphasizes that a loco parentis relationship may betemporary, it may be very short term, it may be limited in circumstance or duration, and if that is part of the very nature of the locoparentis relationship, then it cannot, by its very nature, be an immutable characteristic of the child. Does the distinction create a disadvantage? [38] If the Court determines that an enumerated or analogous ground of discrimination exists, the second step in the Kapp analysisis to determine if the impugned provision perpetuates a disadvantage or stereotype.

Indicators of disadvantage created by the distinctionin the legislation from the Law decision were summarized above. [39] With reference to the Law factors, the Respondent and the Attorney General emphasize that stepchildren are not a historicallydisadvantaged group, nor have the Applicants established that stepchildren are an historically disadvantaged group. There is no generalsocial prejudice in Canada against stepchildren, as the Court recognized in McRea at paras 92-93.

Stepchildren do not have the kind ofvulnerability that requires constitutional protection from discrimination. [40] As for correspondence with actual need, capacity or circumstances,

section 8 of the FAA allows spouses, parents and childrenof a deceased person to receive bereavement damages in a fixed amount without proving any loss or the extent of their loss. [41] The purposes of the legislation, as specifically described in the ALRI reports and in the Alberta Court of Queen’s Benchdecision in Lemke v Juckes Estate, 2000 ABQB 773 at 23, include streamlining the compensation process and sparing family membersfrom testifying about the extent of the loss and the trauma they experience.

To achieve these purposes, the legislation deliberatelysacrifices the flexibility to tailor compensation to individual circumstances. [42] As the SCC recently decided in Withler v Canada (A.G.) at para 67, perfect correspondence between legislation and the needsand circumstances of the claimant group is not required, and the Legislature is not required to prove all assumptions on which it bases itslegislation. See also Gosselin v Québec (Attorney General), 2002 SCC 84 , [2002] 4 SCR 429 at para 55.

The Respondentsadmit that the FAA may not correspond perfectly to the circumstances of every family, but it is intended to benefit the appropriate peoplein most cases. It reasonably focuses on the closest blood or legal relationships. [43] Bereavement damages under the Act are not intended to perfectly and proportionately compensate everyone who experiencesa loss. Grandparents, grandchildren, siblings, may all experience grief and loss when a person dies because of a wrongful act. It wouldbe impossible to compensate all who might grieve.

Section 8 must strike a balance between compensation, efficiency, and proof ofdamages.

[44] The Respondent indicates that one alternative would be to require all claimants to prove actual losses. Such a requirement might achieve better correspondence between the benefit and the actual needs and circumstances of the claimants, but at a cost. There would be a loss of efficiency, and the bereaved would have to provide evidence about the significance of their loss. [45] Further, stepchildren are not specifically disadvantaged by

section 8 of the Act. Stepchildren are not excluded from all bereavement damages. They are entitled to bereavement damages in the wrongful death of a parent, like any other person. A child may receive bereavement damages for the death of a parent even if the child has a minimal relationship with the parent. The alleged disadvantage of a stepchild is that they cannot receive bereavement damages for an additional category of relative: a stepparent. [46] In fact, I note that to extend bereavement damages to stepchildren would confer an additional benefit on stepchildren.

At most, a person may have two parents by birth or adoption. A stepchild may have one or more stepparents in addition to parents. If stepchildren were entitled to bereavement damages for both parents and stepparents, there would be a possibility of stepchildren receiving damages under more circumstances than others. [47] The Respondent accepts that the Applicants experienced grief at Ken Smith’s passing.

However, they take the position that this example of imperfect correspondence does not justify finding the FAA to be unconstitutional and adding a new class of relatives who may claim bereavement damages beyond what the legislature clearly intended. [48] The Respondent further notes that not all stepchildren, or children of a person’s common law partner will have the same relationship or experience as the applicants had with Ken Smith.

There will be greater variability within the class in terms of the length, nature, and closeness of the relationship than for children. [49] In terms of ameliorative purpose, bereavement damages are not available at common law.

Section 8 therefore, in the view of the Respondent, is ameliorative in the sense that it provides compensation where none would be available. I do note, however, the Applicants’ rebuttal to this argument. They contend that in the decades since the FAA was enacted, there is no telling whether the common law would have evolved to the point of providing compensation for bereavement.

This argument in no way overrides what I consider to be a true ameliorative purpose in s. 8, yet it does temper it. [50] Finally, the Respondent takes the position that the nature and the scope of the interest affected cannot be said to be one which is severe and localized to the extent required by the SCC in Law: para 88. The Applicants in this case are like the majority of bereaved persons, who do not receive financial compensation for grief.

It cannot be said that stepchildren are singled out for adverse treatment, or that the treatment to them is unusually harsh. [51] The distinction in this case is based on the needs and circumstances of a majority of families. While it may not correspond perfectly to the circumstances of every family, the distinction is not based on prejudice or stereotyping. The Act is not discriminatory. [52] The Attorney General and the Respondent also advance a number of arguments which I consider policy reasons why stepchildren should not be granted constitutional protection under s. 15(1) of the Charter : 1.

A person’s status of stepchild can come into existence at any time in a person’s life, simply by the decisions of a birth parent entering into a common law relationship; it need not be when he or she is a minor child. It could be much later in life. 2. It cannot be assumed that in the majority of cases, a stepparent provided care, guidance, and companionship to the stepchild. ALRI recognized, in its reports, that even in the relationship of birth parent and child, there would be some “windfall” awards when there is no love lost upon the wrongful death of a parent: Report No. 66 at pp 34 to 37.

But this would not be the majority of cases. It may however be the majority of cases if stepchildren were included in

section 8 because of the lack of qualifiers relevant to establishing a close relationship (duration of residing together, age, dependancy, etc.) The assumption of a close relationship between a stepchild and stepparent in the majority of cases is less clear than for a birth parent and child.

3. Where there is a close relationship the concepts of in loco parentis and “standing in the place of a parent” attract legal obligationsand turn on case by case analysis considering numerous factors as identified in Chartier v Chartier, (SCC), [1999] 1SCR 242. In the case at bar, if “stepchild” is read into

section 8, all stepchildren would benefit, regardless of their relationship with theirstepparent. 4. In addition, while children are not included in

section 8 in their capacity as stepchildren, they are included in their capacity asbirth children in the event that they suffer the wrongful death of their natural birth parent. In this regard, stepchildren are unlike the adult children found to be discriminated against in Farriauolo. Before the marital limitationwas struck down in Farriauolo, once the adult child married, he or she was precluded altogether from being awarded bereavementdamages upon the wrongful death of their birth parent. 5. In McCrea, the Court found no history of discrimination or animus against non adopted children or stepchildren. Therefore theexclusion from

section 8 of the FAA would not perpetuate a disadvantage or stereotype. 6. The scheme of the FAA, and in particular the purpose of

section 8 is to provide some compensation for bereavement. It is aspecific and recognized part of the scheme of the Act that there would not be perfect correspondence between those who suffered the lossand those who had received the benefit, but that that imperfect correspondence was tolerable and in fact preferred over the alternative ofputting people to the test of proving their loss. 7. With respect to in loco parentis relationships, reading in the loco parentis concept would destroy the purpose of

section 8 of theFAA, which is to provide a scheme by which bereavement damages could be available to a defined class which could be determined withcertainty without need for litigation or proof. [53] For those reasons, the Attorney General and the Respondent submit that

section 8 of the FAA does not discriminate againststepchildren, and resort to

section 1 of the Charter is not required.

(5) Analysis [54] Case law is sparse regarding claims of discrimination based on status as a child, whether birth child, adopted child, orstepchild. While one case has recognized the status of adopted child as an analogous ground, to date no cases have been uncovered thatrecognize stepchild under analogous grounds. [55] In short, I do not find that the twin requirements of the Kapp analysis are satisfied.

For the reasons that follow, I have not beenprovided with sufficient evidence that stepchildren or children in loco parentis relationships have suffered social disadvantage andprejudice. [56] I do, however, accept the Applicants’ argument regarding the immutability of the status of the child. Counsel for theApplicants argues that the status of a stepchild is even more immutable than that of one’s marital status.

In Miron, it was held at p. 36that while in theory, the individual is free to choose to marry or not to marry, the reality is that the choice may be limited by the state, thelaw, religious, financial, or social factors which may lay beyond the individual’s effective control. [57] As for stepchildren, the element of choice is entirely removed. The status is chosen for the child by the parent and thestepparent who make the decision to live together.

The child has no control over that decision. [58] Further, while it was held in McRea that the status of the child was a mutable characteristic, due to the option of thestepparent to adopt, or to provide for the stepchild in their will, these do not render the status “mutable” from the perspective of the child.

A stepchild has no power to force a stepparent to adopt them; the choice belongs to the stepparent. Additionally, the decision to providea benefit for a stepchild in one’s Will is not a decision open to a stepchild.

Again, that choice belongs to the stepparent. [59] Therefore, from the perspective of the stepchild, his or her status is effectively immutable. [60] However, with a view to the other indicia of constitutionality under s. 15(1) of the Charter, I cannot hold that the impugnedsection of the FAA is indeed unconstitutional. [61] In McRea, Crawford J. indicated that there is no history of discrimination against stepchildren. In the case at bar, theApplicants claim widespread discrimination against stepchildren. That may well be. However, they have failed to provide evidence ofsuch discrimination to satisfy the Court.

The Court in McRea found that stepchildren are not, as a group, disadvantaged. Justice Crawfordwrote at paras 92-93: But today, in terms of recent social, political and legal history, a non adopted or “stepchild” is not denigrated. There is general socialacceptance of couples and their children in “common law” relationships, and the children are not subject to social stigma in terms ofcurrent social attitudes.

Family law legislation has widened the definition of "child" to ensure that those standing in parental situations tochildren for a requisite period of time then have a legal obligation to support the children, and the costs then does not fall on the State.

Thus, while at first impression the Act is the basis for the differential treatment between natural children and step children's (or adoptedand non adopted) abilities to make a claim under the Act, when compared to the listed grounds of race, ethnicity, colour, religion, sex,age or disability, it is not easy to see the analogy or stepchildren that one finds in considering the listed grounds. Non- adopted orstepchild is not a status or group where one senses that they have been the subject of stereotypical thinking and demeaning decisionmaking.

It is not an immutable characteristic that has given rise to the denial of equal treatment. [62] Evidence of disadvantage or prejudice presented by the Applicants in oral argument was discrimination from within the familyunit.

However, this conflicts with arguments advanced by the Applicants to persuade me that stepchildren are so integrated and soaccepted in modern families that there is no distinction between them and natural children within the family unit. [63] At times the Applicants stated that the stepparent/stepchild relationship is so common and so close that they would be insultedand offended by anybody not classifying it as the same relationship as a natural parent and natural child relationship.

The mere use of theword “child”, they submitted, automatically includes stepchildren because we equate them as being the same relationship. Yet in anotherpart of their argument, the Applicants of necessity talked about there being in fact a disadvantage to being a stepchild and prejudice fromwithin families. Which is it? It cannot be both. I therefore have difficulty accepting this contrary evidence as proof of historicdisadvantage. [64] The only other evidence of disadvantage provided by the Applicants was in the form of the exclusion of stepchildren from s. 8of the FAA.

In this sense, the status of the child is unlike other recognized forms of analogous grounds, such as marital status, which wasshown to be a characteristic susceptible to extrinsic discrimination, that is, sourced from outside of the impugned legislation itself. Asindicated by the SCC in Miron v Trudel, (SCC), [1995] 2 SCR 418, 124 DLR (4th) 693, 29 CRR (2d) 189, 13 RFL (4th)1, 81 OAC 253, at p 36, historically, in our society, the unmarried partner has been regarded as less worthy than the married partner;unmarried partners have experienced social ostracism through denial of status and benefits.

While in recent years, the disadvantage ofliving in illegitimate relationships has diminished and those living together out of wedlock no longer are made to carry the scarlet letter,the historical disadvantage associated with this group cannot be denied. I cannot liken any of these examples of disadvantage to the statusof the child. [65] A finding of substantive discrimination against stepchildren will have sweeping and far-reaching consequences. I sincerelysympathize with the Applicants in this case and have no doubt as to their legitimate grief.

I do not question the grief they suffered at theloss of their parent, Ken Smith. It pains me greatly to know that they receive no bereavement compensation under the Act, yet I cannotexpand the scope of the legislation on that basis. It is beyond the power of the Court to direct a change to this legislation out of sympathyor empathy or a wish to broaden the compensation to a broader class of people. [66] The Court’s policy preference in that regard is not what is important here. Rather, I am tasked with completing a full

[66] The Court’s policy preference in that regard is not what is important here. Rather, I am tasked with completing a full constitutional analysis in determining whether or not the distinction between natural children or adopted children on the one hand and stepchildren or children in a loco parentis relationship on that other hand is constitutional. [67] I have reviewed legislation from other Canadian provinces. Some provinces have made the policy choice to give some benefits to people on the basis of step- or loco parentis relationships.

Doing so has possibly sacrificed the certainty of who will receive benefits, and the ease with which benefits can be paid under the legislation. In either case, the Court may not substitute the policy choices of other provinces for the choice of the Alberta legislature has made in this case. Again, a full constitutional analysis must be applied. [68] I am not prepared to make a finding of discrimination in respect of stepchildren under the Charter without significant proof and satisfactory evidence of the indicia set out by the SCC. In the present case, the Applicants have not discharged this evidential burden.

At the present time, I see no basis upon which to come to any other conclusion than that while

section 8 of the Act does distinguish between a child and a stepchild of a deceased person, the distinction does not create a disadvantage. The application therefore fails under the Kapp analysis. [69] The Applicants’ failure to prove that the characteristic of being a stepchild has given rise to the denial of equal treatment is fatal to their cause. This being the case, I need not determine whether the legislation is justified under

section 1 . The remedy issue raised by the Appellants is also moot. Conclusion [70] Having determined that section 8(1) (

a) of the FAA does not include stepchildren or children for whom the deceased stood in loco parentis in the definition of “child”, and given my conclusion that failing to include stepchildren or children for whom the deceased stood in loco parentis in that definition does not offend the Charter , the application is dismissed. [71] If the parties cannot agree on costs within 30 days of the date of this Judgment, they may make an appointment to speak to costs. Heard on the 16 th day of April, 2012 . Dated at the City of Calgary, Alberta this 18 th day of May, 2012. S. L. Hunt McDonald J.C.Q.B.A. Appearances: Daniel J. Aberle for the Plaintiffs, Angela Julianne Toone and Jeffrey Weldon Dares

Doreen M. Saunderson for the Defendant, Kris Frazer Newman L. Christine Enns for the Province of Alberta