SR v MR, 2023 ABKB 464

Court of King’s Bench of Alberta Citation: SR v MR, 2023 ABKB 464 Date: 20230816 Docket: FL01 37148 Registry: Calgary Between: SR Applicant - and - MR Respondent And Between: Docket: FL01 36428 RG Applicant - and - MR and SR Respondents Restriction on Publication Identification Ban – See the Family Law Act ,

section 100 . By Court Order, no person shall publish or broadcast information that may identify the children involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Decision of the Honourable Mr. Justice O.P. Malik _______________________________________________________

I. Background [ 1 ] RCG (the “Child”) turns 4 years old in October. MR is the Child’s biological mother (the “Mother”) and SR is the Child’s biological father (the “Father”). Since her birth, RCG has resided exclusively with the Mother and RG, the Mother’s partner (the “Mother’s Partner”). The Child believes the Mother’s Partner is her father. The Child has never met the Father. [ 2 ] The Mother and the Father met in January 2019. The Child was conceived shortly thereafter. In February 2019, the Mother emailed the Father to advise him she was pregnant and in March, advised him that he was the Child’s father.

The parties stopped seeing each other, although continued to communicate via email. In July 2019, the Mother informed the Father that the Mother’s Partner was the Child’s father. The parties did not have any contact with each other until December 2021, when the Father surmised from an internet photo of the Child that he was the Child’s father. [ 3 ] The Father filed an application for an Order requiring the Child to undergo DNA testing.

The Order was granted and in March 2022, the Father was confirmed to be the Child’s father. [ 4 ] On October 26, 2022, I granted Orders declaring the Father to be the Child’s biological parent and appointing the Mother’s Partner as the Child’s guardian. II. Issues [ 5 ] This application is brought by the Father under the Family Law Act , SA 2003 c F-4.5 (the “ Act ”) for: (

a) Guardianship of the Child; (

b) Parenting and/or contact time with the Child; and (

c) Amending the Child’s birth certificate to replace the Child’s currently registered surname with his own or to add his last name to the Child’s existing surname through hyphenation. [ 6 ] This matter proceeded before me by way of a three-day trial pursuant to the terms of a Consent Litigation Plan Order and an Amended Consent Litigation Plan Order that I granted on December 13, 2022 and on April 14, 2023, respectively. III. Analysis A.

Guardianship [ 7 ] In MAB v JLM , 2017 ABCA 174 at para 4 , the Alberta Court of Appeal described the routes a guardianship application might take: There are two gateways to guardianship in the Act . The first is through s 20, and the other is through s 23. What distinguishes one from the other is the relevance of the best interests of the child. That criterion is relevant only to the inquiry under s 23; it is irrelevant under s 20.

Under s 20, providing that the applicant meets the criteria set forth therein, there is no judicial discretion to deny that person the status of guardian: FR v VT , 2017 ABCA 109 at paras 21-22 . [ 8 ] The Mother argues the Father should not be declared the Child’s guardian. She contends that the Child was born as a result of the Father having sexually assaulted her and therefore the Father is not eligible to be the Child’s guardian pursuant to section 20(4) of the Act .

She further argues that, even if I do not find a sexual assault occurred, the Father has not met the preconditions to be declared the Child’s guardian pursuant to section 20(2) of the Act . She further argues it is not in the Child’s best interests for the Father to be appointed a guardian pursuant to

section 23 of the Act . 1. Section 20(4) of the Act [ 9 ] The Mother deposes that she was sexually assaulted by the Father in her home during their first encounter on January 15, 2019. Her evidence is that she immediately regretted inviting him over due to his controlling and persistent demeanor and their age difference. She testified that the Father started to kiss her and had sex with her. She did not stop him because she “didn’t know really what to do” and “he had given me money”. She says she asked him to leave but he: proceeded to force himself on me.

He forcibly had sex with me, without my consent and without my involvement. Despite my protests and obvious discomfort, he continued until he was finished. He did not use protection. He left shortly thereafter. [ 10 ] She testified that she never told the Father she wanted or consented to have sex with him. The Mother deposed that she took an emergency contraceptive that evening.

She did not tell anyone about the assault because she was ashamed of what people would think of her and because she had been in a relationship with the Mother’s Partner since 2018. [ 11 ] The Father denies forcing sex upon the Mother without her consent. He testified that their sexual encounter did not involve any struggle or opposition and says there was “100%” consent. He claims the Mother concocted a story about sexual assault to defeat his applications.

[12] The Mother testifies that she saw the Father on only one other occasion to discuss her pregnancy and to tell him she did notwant any further contact. The Father asserts they had sex on several other occasions in January but stopped after the Mother informedhim in early February that she was pregnant. [13] At trial, I admitted the report of a trauma counsellor, whom the Mother saw between January and March 2023.

Thecounsellor’s report, dated March 29, 2023, speaks to the Mother “present[ing] with symptoms of sexual assault trauma and ongoingsymptoms of trauma” and with other trauma symptomatology, including depression, panic attacks, anxiety, and insomnia. The counsellornotes the Mother, who has not disclosed her allegation of sexual assault to her friends and family, is experiencing a “high degree ofsocial isolation and family support... to protect herself and the child”, something which is not uncommon for someone who hasexperienced a sexual assault.

I accept the counsellor’s observations that the Mother exhibits symptoms consistent with having survivedsexual assault trauma. [14] The term “sexual assault” is not defined in section 20(4) of the Act, other family law legislation or their corresponding Regulations. The term was introduced into the Act in 2010: Bill 22, Family Law Statues Amendment Act, 2010, 3rd Sess, 27th Leg,Alberta, 2010 (assented to December 2, 2010), section 1(18) (“Bill 22”).

When the Minister of Housing and Urban Affairs and DeputyGovernment House Leader Jonathan Denis, KC moved the second reading of Bill 22 on November 2, 2010, he did not elaborate on how the term should be interpreted: Bill 22, 2nd reading, Alberta Hansard, 27-3, Issue 37 (November 2, 2010) at 1068. [15] Section 20(5) of the Act stipulates that for purposes of section 20(4), a sexual assault may be found to have occurred “whetheror not a charge has been or could be laid, dismissed or withdrawn and whether or not a conviction has been or could be obtained”: see,e.g.

PD v LM, 2020 ABPC 176 at paras 22–24. [16] In my view, this reference to potential criminal proceedings indicates that the Legislature intended the meaning of sexualassault in section 20(4) of the Act to be consistent with that in the Criminal Code, RSC 1985, c C-46. In the criminal context, theessential elements of a sexual assault are: (1) touching; (2) of an objectively sexual nature; (3) in the absence of consent: R v Ewanchuk, (SCC), [1999] 1 SCR 330 at para 25; R v JA, 2011 SCC 28 at para 23; R v Barton, 2019 SCC 33 at para 87; R v GF,2021 SCC 20 at para 25.

Section 273.1(1) of the Criminal Code defines consent as “the voluntary agreement of the complainant toengage in the sexual activity in question” which, pursuant to

section 273.1(1.1), “must be present at the time the sexual activity inquestion takes place”.

The “sexual activity in question” has been defined as encompassing the specific physical act engaged in, thesexual nature of the act, and the identity of the partner in the act: R v Hutchinson, 2014 SCC 19 at paras 55, 57; Barton at para 88; GFat para 29. [17] In criminal proceedings, the Crown bears the onus of proving the complainant did not subjectively want the sexual touching totake place and, if their evidence is accepted, the accused may raise the defence of honest but mistaken belief that the complainantcommunicated their consent: Barton at para 91. I recognize that in the criminal context: (

i) a defendant cannot rely on the complainant’ssilence, passivity, or ambiguous conduct to assert the complainant consented: Ewanchuk at para 51; (ii) that corroboration is not arequirement for proving sexual assault, particularly where the alleged assault occurred in private: Criminal Code, s 274; GF at para 81;and (iii) that I cannot rely on irrelevant myths or stereotypical assumptions in a way that would obscure or displace relevant and materialevidence: see e.g.

R v Find, 2001 SCC 32 at para 101; R v Pastro, 2021 BCCA 149 at paras 40–52. [18] In the civil context, the requisite elements are found in the tort of battery, which includes sexual battery.

In such cases, theplaintiff must prove he or she has been the subject of unwanted sexual contact, described in PP v DD, 2017 ONCA 180 at para 71 (seealso Pawlett v Dominion Protection Services Ltd, 2007 ABQB 415 at para 74; Seymour v Nole, 2022 BCSC 867 at paras 42-58;Lapointe v Labelle, 2023 ONSC 470 at para 30) as follows: The constituent elements of the tort of "sexual battery" are the same as those of the tort of battery. That is, the plaintiff must prove on abalance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner.

To prove a battery, the plaintiff mustalso demonstrate that the interference with his or her body was "harmful" or "offensive", but this element is implied (assuming a lack ofconsent) in the context of a sexual battery: Non-Marine Underwriters, Lloyd's of London v.

Scalera, 2000 SCC 24, at para. 22. [19] Once the plaintiff has discharged their burden, the defendant may raise the defence of consent, namely that the plaintiffconsented to the sexual touching or that a reasonable person in the defendant’s position would have thought the plaintiff consented: Non-Marine Underwriters, Lloyd’s of London v Scalera, 2000 SCC 24 at para 2; CD v Mostowy, 2021 BCSC 1919 at para 28.

Thedefendant must prove that the plaintiff’s consent was “genuine”, which excludes consent that was obtained by duress, force or threat offorce or fraud, that was given by someone who was legally incapable of consenting, or that was given where an unequal powerrelationship is being exploited: Norberg v Wynrib (SCC), [1992] 2 SCR 226 at 246-247 and 307; PP at para 72; andSeymour v Nole, 2022 BCSC 867 at para 46. [20] Thus, the elements of sexual assault are similar in the civil and criminal contexts. In this case, there is no dispute that therewas sexual contact that resulted in the Child’s conception.

The central issue is whether the Mother consented to that sexual contact.

Inaddressing the issue, I am of the view that the criminal jurisprudence with respect to unacceptable myths and stereotypes must inform myassessment: Seymour at paras 46-54; LM v KM, 2022 BCSC 689 at para 280. [21] The standard of proof the Mother must satisfy to establish that the birth of the Child was the result of a sexual assault is on abalance of probabilities, namely whether it is more likely than not the event occurred: see FH v McDougall, 2008 SCC 53 at paras 40and 44, where the Supreme Court of Canada rejected shifting standards of probability based on the seriousness of the allegations.

Thismeans I must not apply a higher level of scrutiny to the evidence in a case such as this, which involves allegations of morally repugnantconduct: McDougall at para 45. The evidence required to satisfy the balance of probabilities test must be “sufficiently clear, convincingand cogent” although there is no objective standard as to what constitutes sufficient evidence: McDougall at para 46. [22] In this case, the Mother’s bare assertion that she was the subject of non-consensual sexual touching is met with the Father’sbare denial.

I find the parties equally credible and their respective versions of events equally plausible. I find the Mother has not providedme with sufficient evidence to cause me to prefer her version of events over the Father’s. Consequently, I find the Mother has not

established on a balance of probabilities that the Child was born as a result of a sexual assault. It therefore follows that the Father is not disqualified from guardianship pursuant to section 20(4) of the Act . 2. Guardianship Pursuant to Section 20(2) of the Act [ 23 ] In early February 2019, the Mother e-mailed the Father to tell him she was pregnant. The Father e-mailed her back, saying he was “glad” and that he would support her. In March, the Mother told the Father that he was the Child’s father.

In April, the Mother sent the Father the results of an ultrasound that put the Child’s gestational age at just over 3 months. The Mother advised she was getting a paternity test and asked the Father to get one as well. In May, at the Mother’s request, the Father paid a $276.00 deposit towards the cost of a prenatal test. The parties did not proceed with the test as the Mother advised she no longer wanted it and was instead obtaining a test with the Mother’s Partner.

In July, the Mother sent the Father an e-mail advising that she had obtained a paternity test which confirmed that the Mother’s Partner was the Child’s biological father. The Father’s evidence is that he was confused about this because he believed he was the Child’s father despite never having received proof of the Child’s paternity. It appears the parties stopped communicating with each other in or around August 2019. There is no evidence the Father was advised of the Child’s birth in October 2019. [ 24 ] I am prepared to find the Father satisfies the guardianship requirement in section 20(2) (

a) of the Act . He acknowledged he was the Child’s father in February and March 2019 and continued to maintain this view when he brought his application for DNA testing in December 2021. [ 25 ] However, I am not satisfied he has ever assumed the responsibility of a guardian in respect of the Child under section 20(2) (

b) of the Act by fulfilling any of the criteria enumerated in section 20(3) . The criteria listed in sections 20(3) (

a) to 20(3) (

h) of the Act do not apply. In respect of direct or indirect offers of financial support as per section 20(3) (

i) and (

j) of the Act , the Father testified during questioning on March 27, 2023 (the “Questioning”) that he was prepared to provide whatever financial support was required and that he would work two jobs if necessary. However, he has not provided the Mother with any direct or indirect financial support to support her in respect of her pregnancy nor has he provided any support for the Child or made any meaningful offer to pay such support. [ 26 ] Section 20(3) (

k) of the Act permits me to consider any other circumstances that would allow me to conclude, pursuant to section 20(6), that the Father has demonstrated an intention to assume the responsibility of a guardian. The Father has not identified any such circumstances.

Section 23 of the Act [ 27 ] The Father may also be appointed as a guardian of the Child pursuant to

section 23 of the Act . Often, this requires a report prepared by a qualified person respecting whether such an appointment is in the best interests of the Child. No such report was prepared in this case. Nevertheless, I may still appoint the Father as a guardian under

section 23 of the Act if I find that he is a suitable guardian pursuant to section 23(3) (

a) and that, pursuant to section 23(3) (b), he has the ability and is willing to exercise the powers, responsibilities, and entitlements of guardianship. Pursuant to section 18(1) of the Act , I must also consider what is in the Child’s best interests to ensure the greatest possible protection of the Child’s physical, psychological, and emotional safety (section 18(2)(a)) and the Child’s needs and circumstances (section 18(2)(b)). [ 28 ] During the Questioning, the Father provided some basic information about his identity, date of birth, where he was born and when he emigrated to Canada.

He confirmed he was professionally employed, that he did not have a criminal record and that he was a Canadian citizen.

However, he refused to answer counsel’s questions or to give undertakings to provide information in respect of: his education, current employment and hours of work; if he has ever been criminally charged; if he has been diagnosed with mental health issues; if he is being supported in his applications by a professional; his cultural and religious practices and beliefs; financial information and how he would financially support the Child; whether he retained his Indian citizenship or has family in India and abroad; with whom he currently resides; his marital status; whether he has children and whether his family is aware he is the Child’s father; and whether, were he to be granted parenting, he wanted the Child to have a relationship with his children and wife.

He also refused an undertaking to provide a criminal background check. [ 29 ] At trial, the Father explained he did not understand the implications of refusing to answer counsel’s questions or to provide undertakings at the Questioning. He stated that following Questioning, he sent counsel an e-mail offering to answer any non-invasive questions. In my view, the Father is bound by his conduct at the Questioning. While I appreciate that he was self-represented at the time, it was incumbent on him to understand the nature of the Questioning and the implications of refusing to answer relevant questions: see e.g.

Clark v Pezzente , 2017 ABCA 220 at paras 13-14 ; Morrison v Galvanic , 2019 ABCA 207 at para 21 . Further, the Father did not, upon retaining counsel several weeks before the trial, bring a pre-trial motion to address or rectify any procedural or evidentiary issues that he may have previously overlooked. [ 30 ] During the Questioning, the Father had the opportunity to address the question of the Child’s best interests: Q. ...Would you agree with me that having a relationship with [the Child] would be an interference to [the Child’s] life? A.

I would agree that having a relationship with the Child is in the best interest of the child because if you are -- if you do not know... who your biological father is, and somebody -- your mom tells you, a third party, he's the biological father, how will you feel? ...That is how [the Child] will be feeling if you wrongly tell -- tell her a different person is her biological father. It -- it is immoral to tell a little child lies about her. About her true existence. About her true identity. Q.

You would agree with me that telling a child about her true identity is different than having a relationship with her, correct? A. I – I don’t think so. And I -- I -- I don’t agree with you. Q. Would you agree with me that learning of a different biological father may have harmful effects on [the Child]?

A. It will have very harmful effects if she learns the same information at age 18. So this is – this is a very common thing in Canada, and there’s nothing harmful. It is only a good and great thing...The more we delay on this, it’s not good for her. So the sooner we are to inform her about this, it is better. Q. The sooner we inform [the Child] of this application is better for [the Child] or is better for you? A.

It is better for [the Child], it is better for me, it is better for [the Mother], and it is better for Canadian society. [ 31 ] The Father explained how his guardianship application was in the Child’s best interests: Q. So what does “guardianship” mean to you? A. Guardianship means to me, means taking care of all of the needs, the physical, moral, all the needs your child will require, and provide her all the support she wanted. She needs. Q. Do you feel that you would be a better guardian for [the Child]? A. I’m not saying I’m a better -- I am the parent of [the Child].

I am the father – biological father...I am the father...and I will be the best guardian for [the Child]... [ 32 ] With respect to whether a relationship with the Child was in her best interests, the Father stated, “[t]here’s no evidence required. And if evidence is required, we can provide that. But I’m here to give -- provide all the support.

And I am the father...So every child should have the right to know who her real father is.” [ 33 ] When asked whether he felt he would be a better guardian for the Child than the Mother’s Partner, the Father replied, “I feel I’m the best father...because I am the biological father...and I’ll be the best guardian...I don’t compare myself with other people.” [ 34 ] When asked how he “proposed to protect the [the Child’s] psychological safety when we’re dealing with such a sensitive issue?”, the Father first blamed counsel for “making this a sensitive issue” and for having delayed the case.

Then he said: ...So I will approach it slowly. This is -- but for the best interest of [the Child], we approach this slowly, carefully, with the understanding of the sensitive nature of the matter. We introduce this carefully, slowly, and we can involve other parties as required. [ 35 ] The Father indicated he would work with the Mother’s Partner and that they could be “best friends in the future if [the Mother’s Partner] works together and that he be willing to work with the Mother for the Child’s best interests”.

He proposed the parties work together with a mediator and to “see what [the Mother and the Mother’s Partner] want...” with the assistance of family counselling. He did not object to supporting the Child financially. He stated that he would provide her with the “necessary supports”, and he would, if required, take up two jobs to do so.

However, he refused an undertaking to provide his financial information. [ 36 ] In his Claim – Family Law Act form filed on November 25, 2022, the Father articulates the basis of his claim for guardianship, parenting and contact in the following terms: I am humbly requesting the court to remove the conditions so that vital statistics can add my name as the father of my child as soon as possible. I waited for one year already and I think this is unfair for me and my little daughter to wait another 1 to 2 years just for the Parentage application to be approved in full.

I believe we should not try to mask the truth from a child about her true identity. Every child has the right to know who her real (biological) father is and every child has the right to spend her time with her biological father and the father has the right to spend his time with [his] daughter. I am seeking visitation rights to see my daughter as soon as possible.

I am seeking guardianship, parenting and contact with the child...The mother should know if we separate the father from her child it will have long term consequences on the child and it will cause more damage to the child, once the child finds out as she grows up. The child is brown and she will find out the truth, sooner than later...I believe it will be unfair to the child to mask the truth from her of her true identity.

My conscience does not allow me to disavow my child and I do not want to feel guilty if the child meets me and asks me at a later date why I was not able to be in touch with and care for her, in case it ended up that way. I am interested in the welfare of my child and I only have all the best wishes for my child and her mother. [ 37 ] In support of his application for parentage, the Father swore an Affidavit on June 29, 2022, wherein he states: I can’t wait to see my dream daughter and take care of her and I feel delaying this process does not seem to be fair to me.

They kept me away from my beloved daughter for more than 2 years already...and I miss her a lot. I believe it is immoral to suppress the truth of a child’s identity from her and the world. The child will look for answers on her identity once she grows up for sure, as she is not a Caucasian. If someone tells us that you should now know who your real father is – how will you feel...I am the biological father of my daughter and it becomes my responsibility to take care of my daughter’s welfare.

There is no obligation for [the Mother’s Partner] to support a child that is not his, in general and he could withdraw the support at any time...I also seek access and guardianship for my daughter. I would like to see my daughter sooner than later... [ 38 ] In an Affidavit sworn on January 23, 2023, in respect of these applications, the Father deposes: Every child has the right to know who her biological father is and every child has the right to spend time with her biological father. The father has the right to spend time with his child. I am committed for the welfare and best interests of my daughter...

I have been waiting for contact for more than a year. I humbly request the court to understand the sensitive feelings between a father and daughter and help me visit my child as soon as possible. ... I am still willing to work with the opposing party for the welfare and benefit of my daughter...

[ 39 ] At trial, the Father was not asked for and did not provide any further evidence in chief as to how his applications served the Child’s best interests. [ 40 ] On cross-examination, the Father disputed the Mother’s contention that the applications were self-serving and were not brought in the Child’s best interests, stating “I do not want to deprive a child without a real father”. When asked why no evidence was required to show it was in the Child’s best interests to have a relationship with him, the Father replied, “[y]eah, I’m the father.

I -- I love her so much emotionally so that is why I’ve been fighting this case for the last two years.” He acknowledged that he refused to answer a question put to him at the Questioning about his parenting skills. When asked whether he agreed the Mother and the Mother’s Partner would have safety concerns about the Child meeting him, a stranger, the Father replied “I am not a -- I was made a stranger now. I could have been introduced when [the Child] was two. They make me a stranger. I don’t know how long you are plan to make me a stranger.

I am her father, biological father...”. [ 41 ] In the Mother’s Response Affidavit sworn on April 26, 2022 in respect of the Father’s parentage application, the Mother describes her family’s dynamic. She deposes that the Child and the Mother’s daughter from another relationship are “very bonded” and that the family “works together” to provide for both in their best interests. She describes the Mother’s Partner as being the primary wage earner, with the Mother contributing to childcare and running the household.

She deposes that she and the Mother’s Partner “attend family functions as a unit on both sides of our families” and are both listed as emergency contacts for the girls. [ 42 ] She describes the Mother’s Partner’s importance to the family in the following terms: We have a very strong family dynamic in our home. We have routine, stability, and structure. Our home is filled with love and [the Mother’s Partner] is the most hands on, amazing, patient, loving and deserving Father I know. [He] is the only Father [the Child] has ever known.

She calls him “Daddy” and they are immensely bonded. [ 43 ] The Mother expresses frustration with her lack of knowledge about the Father: I do not know anything about the [Father]. I do not know where or if he works, if he has a wife, if has children, if he still on the...website, if he has any criminal charges, if he is abusive, if has any mental health challenges, if he is on medication, if he is in good health, if he is a good and kind human being.

I have no knowledge of what kind of man [the Father] is...I do not know the risk he may pose to [the Child]. ...I am not inclined to include a stranger in my daughter’s or my family’s life, whom I have done nothing but care, nourish, love and provide a stable environment for. This is contrary for my own well-being along with my daughters... [ 44 ] In her Response Affidavit sworn on February 23, 2023, the Mother reiterates her frustration about not knowing anything about the Father.

She describes the Father’s applications as being “ignorant and selfish” and she warns of the: potentially devastating mental and emotional effects on [the Child] if forced to have a relationship with a stranger with whom her parents not only disagree with but are in fear of. I cannot trust [the Father] with my daughter. [The Father] has not considered the emotional toll this would take on [the Child]... [ 45 ] She paints a picture of the Child’s current circumstances: [The Child] has a wonderful life. She is enrolled in swimming lessons and attends a day home.

She spends every Friday with her paternal grandparents. On the weekends, our family enjoys a variety of extracurricular activities such as skating, swimming, going to the library, and parks. She is happy. She has grown and developed very strong bonds with all of her care providers, sister, and extended family, and she has many play dates with her friends. We do a yearly family tradition of camping in the summer and have hosted the past three Christmases at our house. We have a large and tight-knit family. We look forward to enrolling [the Child] in more programs as she grows and traveling together as a family.

I want [the Child] to have every opportunity available to her. She is a bright light in our home. [ 46 ] The Mother opposes the Father’s application for guardianship, pointing out that the Child is presently sufficiently supported with two guardians and, as she knows nothing about the Father’s background, cannot say whether he has the necessary skills and tools to be a suitable candidate for guardianship. [ 47 ] At trial, the Mother testified to the nature of the Child’s relationship with the Mother’s Partner and his family.

She stated that the Child is close with the Mother’s Partner’s family, visits their farm every Friday, and has dinner with them once a month on Sunday, on birthdays and on other occasions. She testified her family does not know about these proceedings and that she wants to protect the Child and not “shatter her world”. The Mother testified that she and the Mother’s Partner take the Child to swimming lessons and that when the Child is not in daycare or with a babysitter, she spends time with the Mother’s Partner’s mother on Fridays.

She describes the Mother’s Partner as an amazing parent: “[h]e’s a really hands-on dad. Really attentive. He’s the rock that -- for our family”. She describes the Child’s relationship with the Mother’s Partner as “[i]ncomparable. I can’t describe it. It’s strong, it’s close, they love each other”.

The Child calls the Mother’s Partner “dad”. [ 48 ] The Mother testified her objections to the Father’s applications stem from not “see[ing] any benefit from introducing this type of situation to [the Child] at her age and level of understanding” and does not see how doing so would benefit [the Child] “in any shape and form”. She believes the Father does not have the Child’s “best interests at heart” and that granting him contact would have an adverse impact on the Child, given her young age.

The Mother is concerned that granting the Father’s applications would affect the Child’s everyday life and everybody who knows and loves her. [ 49 ] The Mother’s Partner opposes the Father’s applications and says the Father has not provided sufficient evidence that his applications are in the Child’s best interests. As he puts it: “[j]ust because [the Father] has been found to be the biological father of [the Child] does not mean he is capable of raising [her]”. [ 50 ] In his Affidavit sworn on October 4, 2022, in support of his guardianship application, the Mother’s Partner deposes that now

knowing he is not the Child’s biological parent has not changed his love for her, that it has “changed nothing”: I have raised [the Child] since birth. I have been there every day. I saw her first smile, watched he walk for the first time, heard her first words. I am her father. I have committed my life to raising this little girl, and I love her more than anything. The Mother and I work together to make decisions for [the Child], both the day-to-day decisions as well as the long-term decisions that are best for her future.

We currently reside together in...It is a safe and welcoming home for our family. [The Child] is about to turn 3, so [the Mother] and I are in discussions about pre-school and schooling. [The Child] is my daughter, and everything I have done since she was born, supports that. The fact that a DNA test has shown that I am not biologically her father, makes no difference.

We are a family, and I want to ensure that I have the ability to make decisions and be involved in her life moving forward. [ 51 ] In his Affidavit sworn on February 22, 2023 in respect of these applications, the Mother’s Partner deposes that granting the applications would be “confusing and unnecessary at this time”, that the Father has not sufficiently explained how his applications are in the Child’s best interests, that “[the Father’s] motives are all in support of what he wants to have happen, not what is best for [the Child], given her age and stage of development”, and that the Father would “try to discuss issues with [the Child] that he should not”. [ 52 ] At trial, the Mother’s Partner testified to jointly raising the Child with the Mother.

He testified that finding out he is not the Child’s biological father has not changed his love for the Child. He testified that he considers the Mother’s other daughter to be his daughter. It is important to him for the Child to retain his last name because he considers the Child to be his daughter and “nothing will change that”. He opposes the Father’s application for parenting because no one knows about the situation, and he feels that he and the Mother have provided the Child with “absolutely everything she needs by ourselves”.

He testified that it is in the Child’s best interests not to have the Father in her life “in any way”. He considers himself to be a good parent and testified that the Child is very close with his parents, and often helps on their farm during her frequent weekly visits. [ 53 ] When pressed in cross-examination about his reasons for objecting to the Father’s applications on the grounds that they do not serve the Child’s best interests, the Mother’s Partner was somewhat vague.

He is generally opposed to the Father’s applications given that he knows nothing about the Father and believes that allowing the Father access to the Child would be tantamount to leaving the Child with a stranger. He also believes allowing the Father into the Child’s life would have a negative impact on his family’s privacy. However, he could not, when specifically asked to do so, articulate any specific concerns about what things the Father would tell the Child that might be damaging to her. [ 54 ] Based on all of the evidence before me, the Child is in good hands.

The Mother, her daughter, the Mother’s Partner, and his family provide the Child with a loving, supportive, and stable family environment. The Mother and the Mother’s Partner love the Child deeply, are meeting her medical and day-to-day needs, and are planning for her future. I accept the Mother’s Partner’s evidence that he loves the Child as if she were his biological child.

I accept the Mother’s evidence that appointing the Father as the Child’s guardian would, despite the Father’s stated intentions to work cooperatively with the Mother and the Mother’s Partner, unnecessarily complicate decision-making in a way that does not serve the Child’s best interests. [ 55 ] I acknowledge that the Father is eager to be appointed the Child’s guardian. I also accept his evidence that he is prepared to work cooperatively with the Mother and the Mother’s Partner in coordinating their roles as guardians.

I appreciate that he has made, at least during the Questioning, vague offers to provide whatever financial support is required, working two jobs if necessary to do so. [ 56 ] Unfortunately, other than the Father’s assertion that a daughter should know who her biological father is, I have no evidence that appointing the Father as the Child’s guardian is in her best interests. The Father has provided little to no evidence about his skills, maturity, ability, and general suitability to serve as guardian. I have virtually no information about his background and current circumstances.

In particular, I have no information regarding his family and children, whether there are any criminal proceedings against him, or any other circumstances that might cause concern in respect of the Child’s safety, his preparedness to nurture the Child’s physical, psychological, and emotional safety or his ability to care for and meet the Child’s needs.

I do not know whether the Father even appreciates what the responsibilities, powers, and entitlements of a guardian are pursuant to the Act because he has never acknowledged that he does. [ 57 ] Were I to grant the Father’s guardianship application, I would have to give him sufficient contact with the Child so that he could properly discharge the powers and responsibilities of a guardian ( section 21(4) (

b) of the Act ). The Father is a stranger to the Child. The Child believes the Mother’s Partner is her father. Introducing the Father to the Child without a process of therapeutic intervention for himself, the Mother, the Mother’s Partner, and the Child, in accordance with the pace and manner outlined by the Father at Trial, would in my view likely disrupt the Child’s physical, psychological and emotional health and her need for stability.

It would also risk negatively impacting her existing familial relationships and could, without a managed therapeutic approach, cause serious long-term damage. [ 58 ] I am not satisfied that granting the Father’s guardianship application serves the best interests of the Child, meets her practical needs, or would benefit her. To the contrary, I find that the Father’s application is primarily motivated by his own self-interest, namely establishing a claim to his biological child, and becoming involved in her life in a way and at a pace that is, first and foremost, convenient to him.

While it is both understandable for the Father to want to develop a relationship with his biological child, I nonetheless find that doing so, at least for now, does not serve the Child’s best interests and is more likely to carry negative consequences. [ 59 ] In the result, the Father’s application for guardianship pursuant to sections 20 and 23 of the Act is dismissed. B. Contact [ 60 ] I must now decide whether I should grant the Father’s application for contact with the Child pursuant to

section 35 of the Act . Section 35(5) requires me to consider whether contact between the Father and the Child is in the Child’s best interests, including whether the Child’s physical, psychological, or emotional health may be jeopardized if contact is denied (section 35(5)(a)) and whether the Mother and the Mother’s Partner’s opposition to the Father having contact with the Child is unreasonable (section 35(5)(b)).

[ 61 ] The Mother deposes in her Response Affidavit sworn on February 23, 2023 that the Father does not know what the Child’s needs or best interests are, that the Child is a “vulnerable child who needs protection” and that “[a]llowing a stranger to have any sort of access or contact time would be frightening, upsetting and that [the Child] would only question why she has to meet with a stranger without her family present to protect her. She is too young to explain the situation”.

The Mother is suspicious of the Father’s intentions towards the Child, is fearful about what “lies and false allegations” he would tell her. She deposes that she must protect the Child from the Father’s “control and psychological effect he may have on her”. [ 62 ] I am mindful that the Mother and the Mother’s Partner, having cared for the Child since she was born, are uniquely placed to provide their opinion as to what is in the Child’s best interests.

Their opinions as to how contact with the Father would affect the Child are entitled to “great respect”: Barendregt v Grebliunas , 2022 SCC 22 at para 119 . [ 63 ] The Father filed his Statement for Parenting, Contact and for Guardianship of Child on November 25, 2022. In his Statement for Contact, the Father states: I am the biological father of my daughter. Every child has the right to know who her biological father is and the child has the right to spend time with her biological father. The father has the right to spend time with his children. I am committed for the welfare and best interests of my daughter...

I have been waiting for contact for more than a year. I humbly request the court to understand the sensitive feelings between a father and daughter and help me visit my child as soon as possible. [ 64 ] In his Reply Affidavit sworn on March 13, 2023, the Father deposes: If [the Child] is deprived of her true identity, I am sure, once she grows up my daughter will have questions for society. ... I would like to see my daughter in person as soon as possible, may be introduced as a friend or a teacher to start with.

I am also interested to interact with her periodically in the form of video chat etc. [ 65 ] Throughout the documentary record, the Father repeatedly emphasizes the importance of a child having a relationship with their biological parent. I recognize the importance of fostering the relationship between a child and their biological parent(s). However, while biological parentage may be a factor I might consider when assessing the child’s best interests, it is not an explicitly enumerated factor I must consider in

section 18 of the Act , and I certainly do not view biological parentage to be more than one among a number of factors to consider.

The risks inherent in elevating the importance of the biological tie are that such an approach: treats the child as a pawn, subject to a biological parent’s proprietary claim; prioritizes the biological tie over an assessment of the caregiving role played by the non-biological parents, which fosters a child’s psychological and emotional attachment and well-being; and fails to assess the importance of the biological tie where it does not define a child’s overall familial relationships: BJT v JD , 2022 SCC 24 at paras 91–108 . [ 66 ] At Questioning, the Father proposed enlisting the assistance of a counsellor for himself, the Mother and the Mother’s Partner and to proceed with his integration into the Child’s life slowly.

On the third day of trial, I asked the parties to provide me with a proposed therapeutic plan for moving ahead with the Father’s introduction to the Child were I to grant his applications.

What I was looking for was a considered strategy, based on expert advice and assistance, for introducing the Father into the Child’s life in a manner and at a pace that would provide all the affected parties with an adjustment period so that when the introduction occurred, it did not cause more psychological or emotional damage to the Child than necessary and maintained decision-making stability amongst the Child’s guardians. [ 67 ] Rather than provide me with a proposal acknowledging the need to move ahead with expert guidance that focused on the Child’s best interests, the Father asked for FaceTime access with the Child prior to an upcoming trip to India, scheduled for August.

In my view, the Father’s proposal for contact illustrates his utter lack of appreciation for the impact that introducing himself via FaceTime within the next month would have on the Child and reinforces my belief that the Father’s applications are primarily centered around his own needs rather than an assessment of what ultimately is in the Child’s best interests. [ 68 ] Thereafter, the Father requested supervised parenting.

In support of his request for supervised parenting time, the Father relies on I v P , 2011 ONCJ 584 , where the Court determined it was in the best interests of an 11-year-old child who believed her stepfather was her biological parent to have parenting time with her biological father whom she had never met. However, this case is distinguishable in that the parties agreed to appoint an expert to conduct an assessment report on the issues of custody and whether an access arrangement was in the child’s best interests.

No such assessment report has been prepared here and the Father had not taken me up on my invitation to propose a reasonable unification plan, including a therapeutic plan that could allow for the gradual integration of the Father into the Child’s life. [ 69 ] I acknowledge, as in KB v MSB , 2021 BCSC 1283 at para 47 (a case with similar facts to those I am considering here), that were I to deny the Father’s application to have contact with the Child, he would be deprived of irreplaceable time with the Child, particularly during her formative years. From the Father’s perspective, what more could he have done?

As soon as he viewed the Child’s photograph and suspected he was her father, he brought a parentage application. He has proceeded with his applications quickly and agreed I should hear the Trial on an expedited timeline. He has, in short, proceeded appropriately with his applications.

While I empathize with the Father about how difficult this process has been for him, my primary concern is how ordering contact, on all the available evidence, will impact the Child’s best interests rather than how denying him contact may impact on his expectations and timetable for an early unification. [ 70 ] The Father has failed to persuade me it is in the Child’s best interests for him to have contact with her.

The Child’s age, her place within a stable family network, the fact that the Father is a stranger to her, the lack of an expert assessment on how to integrate the Father into the Child’s life or at the very least, a proposed therapeutic integration plan, the Father’s failure to understand that his introduction to the Child must proceed at a measured pace, and the Father’s focus on his own interests strongly weigh against any form of contact.

I have no evidence the Child is “ready to learn the information” of her parentage or that denying the Father contact would negatively impact on the Child’s psychological integrity and would be detrimental to her best interests: KB at para 50 . To the contrary, I

accept the Mother’s evidence that trying to incorporate a stranger into the family would “not only be devastating but emotionallyheartbreaking for [the Child]” and that denying the Father contact more likely preserves the Child’s psychological and emotional healthat this time.

In all the circumstances, I find the Mother’s and the Mother’s Partner’s opposition to the Father’s application is notunreasonable. [71] I agree with the following comments in JN v LG, 2015 BCSC 2603 at para 126, cited in Hovasapyan v Vardikyan, 2023ABKB 397 at para 29, which I believe apply equally here: [i]n the absence of expert evidence, real questions remained unanswered about L.G.’s willingness and emotional and psychologicalability to parent.

The answers to these questions are critical to a determination of whether L.G. should have contact with the Child and, ifso, under what conditions. [72] Consequently, the Father’s application for contact with the Child is denied. C. Birth Certificate [73] Finally, I dismiss the Father’s application to amend the Child’s birth certificate by replacing the Mother’s Partner’s surnamewith his own or by adding his surname in the form of a hyphenated last name. [74] The Father brings the application in accordance with

Part 3 of the Vital Statistics Act, SA 2007, c V-4.1 (the “VSA”). As theFather is the Child’s parent, he is entitled to bring an application to change the Child’s name pursuant to

section 23 of the VSA. However,the Father must obtain the Mother’s and the Mother’s Partner’s consent to the name change, per section 23(3) of the VSA.

Section 69 ofthe VSA allows me to dispense with the Mother’s and the Mother’s Partner’s consent, but I must consider whether it would be in theChild’s best interests: VSA, s 69(2). [75] In assessing whether changing the Child’s last name is in her best interests, I must consider what are known as the“Wintemute factors”, including: the short and long term effects of changing the child’s surname; any embarrassment likely to beexperienced by the child where their name is different from that of their custodial parent; any confusion of identity that may arise for thechild if their name is or is not changed; and the effect which any change in name would have on the relationship between the child andtheir custodial parent: Pulkinen v Munden, 2013 ABQB 139 at para 39; BDO v DKG, 2020 ABQB 514 at para 32; Custance vCustance, 2022 ABKB 654 at para 18; Wintemute v O’Sullivan, (AB KB), [1985] 64 AR 79 (QB) at para 7.

Theassessment must focus on the child’s best interests rather than on a parent’s emotional needs in either advancing or opposing the namechange application: Ducas v Varkony (1995) (MB KB), 104 Man R (2d) 110 (QB) at para 62; Pulkinen at para 36.The child’s best interests are of greater concern than what may otherwise be convenient to the parents: Lipphardt v Chan, 2006 ABQB511 at para 3. [76] With respect to his application to change the Child’s birth certificate, the Father explained he was applying to change theChild’s name because, as he put it, “I’m the biological father”.

As to whether such a change is in the Child’s best interests, the Fatheranswered: ...if somebody tells you a different person is your biological father and somebody wants to -- doesn’t want to know who your real fatheris, where you originally came from, how will you feel? So that would -- that should answer the question. [77] The Mother deposes in her Response Affidavit sworn on February 23, 2023 that the Child “is not mature enough tounderstand the complexity of the situation and the effect it could have on her would be detrimental to her wellbeing now and in thefuture”.

She says it should be left to the Mother and the Mother’s Partner to decide when the Child is sufficiently mature and in her bestinterests, to advise her of her biological parentage. [78] I do not see how amending the Child’s birth certificate is in her best interests, particularly as I have dismissed the Father’sapplications for guardianship and contact. The only reason I can see for amending the Child’s birth certificate is to reinforce, in theFather’s mind, his biological claim upon the Child rather than serving any practical purpose that would benefit her.

To the contrary,seeing her birth certificate with a name she does not recognize or being referred to by the Father’s surname, would be confusing andpotentially devastating for the Child. [79] Given the lack of evidence that amending the Child’s birth certificate is in her best interests, I dismiss the application. IV. Disposition [80] The Father’s applications are dismissed in their entirety. [81] The Respondents are entitled to their costs. If the parties cannot agree on costs, they shall provide me with writtensubmissions regarding costs within 45 days from the date of this decision.

Submissions shall not exceed 5 pages and shall include aproposed Bill of Costs and a consideration of McAllister v Calgary (City), 2021 ABCA 25. Heard on June 14, 15 and 16, 2023, and on July 17, 2023. Dated at the City of Calgary, Alberta on August 16, 2023.

O.P. Malik J.C.K.B.A. Appearances: Steve Dimic, For the Applicant, SR Samantha J. Allan, For the Respondent, MR RG, Self-Represented