Hoellwarth v Vital Statistics Alberta, 2023 ABKB 339

Court of King’s Bench of Alberta Citation: Hoellwarth v Vital Statistics Alberta, 2023 ABKB 339 Date: 20230605 Docket: FL01 39413 Registry: Calgary Between: Kari Hoellwarth; Nalla Hoellwarth, a Minor by Her Litigation Representative, Kari Hoellwarth; and the Estate of Allan Hoellwarth, Deceased, by Its Executor, Kari Hoellwarth Applicants - and - Vital Statistics Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I.

Introduction [ 1 ] Kari Hoellwarth brings this application on her own behalf, on behalf of and as litigation representative for her daughter Nalla Hoellwarth, and on behalf of and as executor of the estate of her late husband, Allan Hoellwarth. [ 2 ] The Hoellwarths were married in 2008. They were patients of the Regional Fertility Program in Calgary and in 2009 they completed an in vitro fertilization ( IVF ) cycle.

IVF involves the combining of sperm and ova outside of the human body to create embryos that can later be transferred to a uterus to continue developing: SH v DH , 2019 ONCA 454 at para 1 . [ 3 ] In this case, the IVF produced several embryos, some of which were used for a “fresh” IVF cycle and some of which were cryopreserved and frozen for future use.

At the time of the IVF, the Hoellwarths provided their written consent that in the event of death or incapacity of one of them, the embryos could be used at the discretion of the surviving partner. [ 4 ] The Hoellwarths’ first daughter, Arialla, was born as result of the “fresh” IVF cycle in May 2010. Tragically, Mr. Hoellwarth was diagnosed with pancreatic cancer in 2011 and died on January 30, 2012. [ 5 ] After Mr. Hoellwarth’s death, Ms. Hoellwarth returned to the Regional Fertility Program and had some of the previously frozen embryos that the Hoellwarths created together replaced in her uterus.

As a result, a second daughter, Nalla, was born in October 2013. [ 6 ] Despite her efforts, Ms. Hoellwarth has been unable to have Mr. Hoellwarth’s name added to Nalla’s birth certificate as her father. It is important to Ms. Hoellwarth that Mr. Hoellwarth’s name be added to Nalla’s birth certificate so that she will legally have the same father as her sister.

[7] The Director of Vital Statistics takes no position regarding the merits of Ms. Hoellwarth’s application. [8] I am aware that on August 31, 2022, a Justice of this Court granted a requested declaration in a similar case: Re Brown(unreported, FL01-37928). The Court did not provide detailed reasons for its decision. Counsel for Ms. Hoellwarth advised that it wouldbe of assistance to future applicants for the Court to provide written reasons.

In my view, based on the letter provided to the court by theDirector of Vital Statistics, it may also assist the Director and Registrar of Vital Statistics to have written reasons. [9] For the reasons set out below, I agree with the conclusion in Re Brown. Accordingly, I declare that both Kari Hoellwarth andAllan Hoellwarth are the parents of Nalla Hoellwarth pursuant to sections 8.1 and 9 of the Family Law Act, SA 2003 c.

F-4.5 (FLA).Pursuant to section 9(8) of the FLA, I direct the Registrar of Vital Statistics to update and amend Nalla Hoellwarth’s parentage in herbirth registration document to reflect Allan Hoellwarth as her father. II. Issues [10] The determination of parentage and the registration of that parentage are two discrete areas of law.

Parent/child status is alegal status and registration is a reflection of that status: see, for example, Uniform Law Conference of Canada, Civil Law Section, AJoint Project of the Uniform Law Conference of Canada and the Federal/Provincial/Territorial Coordinating Committee of SeniorOfficials on Family Justice: Uniform Child Status Act, Halifax, Nova Scotia, August 22 to 26, 2010 (ULCC 2010 Commentary) at para10. [11] In my view, these two areas of law work together, but for the purposes of analysis are appropriately considered separately.Accordingly, the issues on this application are: (

a) Can Mr. Hoellwarth be declared a parent of Nalla notwithstanding that he was deceased at the time that the embryo wasimplanted? (

b) Does Ms. Hoellwarth have the right to apply to have the Registrar of Vital Statistics amend Nalla’s birth registrationdocument? III. Analysis [12] The issues in this application engage principles of statutory

interpretation. [13] The modern approach to statutory

interpretation requires a court to consider the words of a statute in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislatureor Parliament: Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, at para 21; Canada Trustco Mortgage Co v Canada,[2005] 2 SCR 601, [2005] SCJ No 56, 2005 SCC 54, at para 10; Bell ExpressVu Limited Partnership v Rex,[2002] 2 SCR 559, [2002]SCJ No 43, 2002 SCC 42, at para 26, Alberta Securities Commission v Hennig, 2021 ABCA 411 at para 22; Tokio Marine & NichidoInsurance Company v Security National Insurance Company, 2020 ABCA 402 at paras 213-214; SH v DH at para 30.

The entirecontext includes the history of the provision at issue and its place in the overall scheme of the Act: Tokio at para 214. [14] It is also important for courts to keep in mind principles for harmonizing different statutes, pursuant to the principles ofcoherency, consistency and consistent expression: Agrium v Orbis Engineering Field Services, 2022 ABCA 266at para 27; R v UlybelEnterprises Ltd, 2001 SCC 56 at para 30; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 44.Interpretations that minimize the possibility of conflict or incoherence among different enactments are preferred: R v Ulybel at para 30.

A. Can Mr. Hoellwarth be declared a parent of Nalla notwithstanding that hewas deceased at the time that the embryo was implanted? [15]

Section 5.1(2) of the FLA provides that “For the purposes of this Part, if a child is born as a result of assisted reproduction, thechild’s conception is deemed to have occurred at the time the procedure that resulted in the implantation of the human reproductivematerial or embryo was performed”.

Section 5.1(1) of the FLA defines “embryo” as an embryo as defined in the Assisted HumanReproduction Act, SC 2004, c 2 (AHRA), which in turn defines it as follows: embryo means a human organism during the first 56 days of its development following fertilization or creation, excluding any timeduring which its development has been suspended, and includes any cell derived from such an organism that is used for the purpose ofcreating a human being. (embryon) [16] In this case, the procedure that resulted in the implantation of the embryo occurred in 2013 when an embryo, first created in2009, was implanted or “replaced” into Ms.

Hoellwarth’s uterus. As a result, Nalla is what is sometimes described as an “after-born”child, because she was conceived after the death of one of her genetic parents using the deceased parent’s stored reproductive material:Alberta Law Reform Institute, Assisted Reproduction After Death: Parentage and Implications, Alberta Law Reform Institute, 2015CanLIIDocs 428 (ALRI Final Report) at page v. [17] The question is whether the legislative scheme embodied in the FLA contemplates a declaration that Mr.

Hoellwarth is Nalla’sparent notwithstanding he was deceased at the time she was conceived. [18] To answer the question, in accordance with the principles of statutory

interpretation outlined earlier, I will consider thehistorical context of this issue, the development of Alberta’s parentage regime, and the text of the FLA.

1. Historical Context [ 19 ] By the 1980s, in vitro fertilization introduced the possibility of artificial reproduction and conception after the death of one of the genetic parents or donors. As early as 1985, the Ontario Law Reform Commission was reviewing the potential legal implications of posthumous conception of after-born children: Ontario Law Reform Commission, Report on Human Artificial Reproduction and Related Matters , 1985. [ 20 ] As assisted reproduction technology developed, its use increased and, in 2004, Canada passed the AHRA .

The AHRA , interpreted together with the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations , SOR/2007-137 ( Consent Regulation ) expressly contemplates that consent to some posthumous use of the donor’s human reproductive material can be made at the time the material is obtained: AHRA , section 8(1) ; Consent Regulation , sections 2 and 3 (a)(ii). [ 21 ] Following these developments, the ability of after-born children to have both of their genetic parents recognized as their parents on birth registration documents, and for other purposes, has been the source of significant law reform and legal academic discussion.

See, for example: Manitoba Law Reform Commission, Posthumously Conceived Children: Intestate Succession and Dependants Relief; The Intestate Succession Act: Sections 1(3), 6(1), 4(5), 4(6) and 5 , Manitoba Law Reform Commission, 2008 CanLIIDocs 282 ; Ministry of Attorney General Justice Services Branch Civil Policy and Legislation Office, White Paper on Family Relations Act Reform: Proposals for a new Family Law Act , July 2010; ULCC 2010 Commentary at pp 7-14 and

section 7 of the associated proposed Uniform Child Status Act ( Uniform Child Status Act ); Courtney Retter, Introducing the Next Class of Bastard: An Assessment of the Definitional Implications of the Succession Law Reform Act for After-Born Children , 2011 27-2 Canadian Journal of Family Law 147, 2011 CanLIIDocs 518 ; Alberta Law Reform Institute, Succession and Posthumously Conceived Children , Alberta Law Reform Institute, 2012 CanLIIDocs 334 ( ALRI Discussion Report ); Christine E Doucet, From en ventre sa mere to Thawing an Heir: Posthumously Conceived Children and the Implications for Succession Law in Canada , 2013 22 Dalhousie Journal of Legal Studies 1, 2013 CanLIIDocs 122 ; ALRI Final Report; Law Reform Commission of Saskatchewan, Assisted Reproduction & Parentage - Final Report, Law Reform Commission of Saskatchewan , 2018 CanLIIDocs 360 ; Laura Cárdenas, Un/Related: Discrimination in Posthumous Conception for LGBTQ+ Families in Canada , 2021 99-2 Canadian Bar Review 213, 2021 CanLIIDocs 2252 ( Un / Related: Discrimination ). [ 22 ] In 2011, British Columbia enacted legislation that expressly provided that a person deceased at the time of conception could be a parent of an after-born child, and if necessary for the court to make a declaration of that parentage: Family Law Act , SBC 2011, c 25, sections 28 and 31 .

In 2016, Ontario amended its Children’s Law Reform Act , RSO 1990 c C.12 to do the same: All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment) , 2016, SO 2016, c 23,

section 1. Saskatchewan recently followed suit: The Children’s Law Act, 2020 , SS 2020, c 2, sections 63 - 64 . [ 23 ] Alberta’s development of the legislative regime governing parentage and its registration has taken a different path.

By the Family Law Statutes Amendment Act , SA 2010, section 1(1) , the Family Law Act provisions governing assisted reproduction, and parentage declarations, were given a significant overhaul to provide specific rules of parentage when a child was born as a result of assisted reproduction. [ 24 ] In 2012, the Alberta Law Reform Institute ( ALRI ) issued the ALRI Discussion Report for discussion.

In its preliminary review (which it noted was being revised in its final report), it stated, at para 27: In the most common scenario of posthumous reproduction, the birth mother uses frozen sperm from the deceased father or frozen embryos created while the deceased was alive. Under the FLA, if the birth mother provides the human reproductive material or embryo, then the parents of the child are the birth mother and the person who was the spouse or adult interdependent partner of the birth mother at the time of the child’s conception.

The time of conception is defined as the date of the procedure which resulted in implantation. Thus, the deceased father could not be a parent as he was not the spouse or adult interdependent partner of the birth mother at the time of conception . [Emphasis added] [ 25 ] This

interpretation appears to be based on an

interpretation that, where a female person posthumously used an embryo created while the deceased father was alive, it was only the female person that “provided” the human reproductive material or embryo and, therefore, that

section 8.1(3) of the FLA applied and was a barrier to the recognition of the father’s parentage posthumously. [ 26 ] In 2015, ALRI issued the ALRI Final Report which had a different

interpretation of the FLA . At that time the ALRI concluded that the FLA did recognize a genetic parent as a legal parent pursuant to section 7(2) of the FLA (ALRI Final Report at paras 23-27), but that paradoxically a posthumous declaration of parentage was not possible: (paragraph relating to surrogates omitted), at page vi: Parentage When Assisted Reproduction Used After Death In circumstances where the deceased parent is a male who has provided reproductive material that is used by his surviving wife or female partner after his death, the FLA recognizes him as a parent .

However, there are procedural barriers in both the FLA and the Vital Statistics Act that prevent him from being registered as a parent on the child’s birth certificate. [...] In ALRI’s view, there is no principled reason to deny an after-born child the right to legal parentage. Denying legal parentage draws distinctions between an after-born child and other children of the deceased that were born during his or her lifetime.

Given that parentage is being denied to an after-born child only because of the circumstances surrounding his or her conception and birth, such a denial would likely be considered discriminatory. [Emphasis added] [ 27 ] In ALRI’s view at that time, there were two procedural hurdles. First, initial registration under the Vital Statistics Information Regulation Alta Reg 3/2012 required that a parent be present to sign the registration document.

That regulation was repealed, but section 2(4) of the new Vital Statistics Information Regulation , Alta Reg 108/2018 , continues to limit the ability to include a deceased parent at

the time of initial registration of the birth, where there has been posthumous conception. However, in my view, this is a procedural and not a substantive matter – it simply means that, procedurally, in the case of a posthumous conception, a court application will be required. [ 28 ] The second procedural barrier ALRI identified was that it was the of the view that the FLA limited a declaration of posthumous parentage only to a child en ventre sa mère , that is one conceived prior to the person’s death, based on its

interpretation of section 9(4) of the FLA . Since conception is defined, in

section 5.1(2) of the FLA , to be at the time the embryo was implanted, which was after the death of the father, ALRI concluded that a posthumous declaration could not be made. For these reasons, ALRI recommended amendments to the FLA : ALRI Final Report at paras 43-51 and Exhibit B. [ 29 ] The ALRI recommendations have never been expressly implemented by the Legislature. However, as described below, I am of the view that a posthumous declaration of parentage can be made in some circumstances under the FLA . 2. The FLA [ 30 ]

Section 1 (

j) of the FLA defines a parent as “a person determined under

Part 1 to be a parent of a child”. Section 7(1) of the FLA provides that a person is the child of his or her parents. Section 7(3) provides that “the relationship of parent and child, and the kindred relationships flowing from that relationship, shall be determined in accordance” with

Part 1. [ 31 ] Section 7(2)(

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

section 8.1 to be parent of the child” is a parent of the child. [ 32 ]

Section 8.1(1) of the FLA provides: Assisted reproduction 8.1(1) In this

section and

section 8.2, (

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

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

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

a) unless clause (

b) or (

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

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

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

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

c) unless

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

section 8.2, the birth mother only.

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

a) unless clause (

b) or (

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

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

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

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

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

c) unless

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

section 8.2, the birth mother only.

(4) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by both

a male person and a female person, the parents of the child are (

a) unless clause (

b) or (

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

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

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

c) unless

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

section 8.2, the birth mother only.

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

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

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

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

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

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

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

c) in the case of a child born in the circumstances referred to in subsection (5), the birth mother. [ 33 ] As noted by the ALRI Final Report, at paras 23-27, the FLA is structured to identify a child’s parents as those persons with a genetic link to the child and those persons who consented to be the child’s parents. This has been raised as potentially discriminatory against other potential non-genetic parents: Un / Related: Discrimination at pp 224-235. Further, biological ties have become less important in child protection and private custody and parenting matters: BJT v JD , 2022 SCC 24 at paras 88-109 .

However, none of these issues are before the Court on this application. [ 34 ] The interpretive question before me is whether Nalla falls under

section 8.1(3) or (4) of FLA . As noted earlier, in the ALRI Discussion Report, at that time ALRI appeared to have concluded on a preliminary basis that 8.1(3) of the FLA is applicable when the father is deceased at the time of implantation even if his human reproductive material was used to create the embryo. [ 35 ] In my view,

section 8.1(4) of the FLA applies where a father provides his human reproductive material before death and it is used in assisted reproduction after his death with his consent. In this case, in my view Nalla was born as a result of assisted reproduction “with the use of human reproductive material or any embryo” provided by Mr. Hoellwarth as the “male person” and Ms. Hoellwarth as the “female person”. The Hoellwarths both provided human reproductive material “to be used be used for his or her own reproductive purposes”, as reflected in their written consent (which consent was never withdrawn), all as contemplated by

section 8.1(1) (a). This resulted in the embryos that were used posthumously. Ms. Hoellwarth then provided the embryos to be implanted as contemplated by 8.1(1)(b). In my view, just because Ms. Hoellwarth provided the embryo posthumously for implantation does not change the fact that the embryos were created using Mr. Hoellwarth’s human reproductive material at a time he intended it to be used for his own reproductive purposes. As reflected in his written consent, his “own reproductive purposes” included that Ms. Hoellwarth could use any embryos they created together if he died.

His reproductive purposes did not end when he died. This is not a situation where the embryos were created by Ms. Hoellwarth with an anonymous male person donating material without any intention to be a parent, or using material from someone who did not consent or who withdrew their consent before implantation. [ 36 ] Therefore, in my view, pursuant to

section 8.1(4)(a), Nalla’s parents are Mr. Hoellwarth and Ms. Hoellwarth. [ 37 ] Section 9(1) of the FLA provides the court a broad discretion, on application, to make a declaration of parentage if there is “a dispute or any uncertainty as to whether a person is or is not a parent of a child under

section 7.2(

a) or (b)”. In my view, the FLA contemplates that the dispute or uncertainty can be about whether a deceased person is or is not a parent of the child, as this is specifically contemplated in section 9(4) . [ 38 ] Given that Ms. Hoellwarth has been unable to have Mr. Hoellwarth reflected as Nalla’s parent on her birth registration document, I am satisfied there is a “dispute or uncertainty” as to whether Mr. Hoellwarth is Nalla’s parent. Therefore,

section 9 of the FLA is engaged. As her parent, Ms. Hoellwarth has standing to apply of a declaration of parentage: FLA , section 9(1) (d). Pursuant to the mandatory provisions of section 9(1) (5) of the FLA , the court “shall give effect to...any applicable provision of

section 8.1 ”. There is no information before me that would suggest that a declaration of parentage in this matter would result in Nalla having more than two parents, which would preclude a declaration: FLA , section 9(7) (b). [ 39 ] The ALRI Final Report references section 9(4) of the FLA as a limitation on the jurisdiction of the court to make a declaration of parentage for an after-born child in the case of posthumous conception. I disagree.

Section 9(4) provides that “If the court finds that a deceased person is or is not a parent of a child conceived before that person’s death, the court may make a declaration to that effect”. In my view, section 9(4) of the FLA does not limit the court’s power to make a posthumous declaration of parentage. In particular, this permissive, discretionary

section does not override the mandatory requirement of section 9(5), which provides that the court “shall give effect to … any applicable provision of

section 8.1 ” of the FLA . “Shall” is to be construed as imperative:

Interpretation Act , RSA 2000, c I-8, section 28(2) .

[ 40 ] In my view, if the Legislature intended to restrict the application of

section 8.1 , it would have used clear and specific language limiting the court’s jurisdiction. This conclusion does not render section 9(4) superfluous – its purpose includes providing a specific process by which the court can make a declaration about the date of conception.

The date of conception, and declaration to that effect, remains important in Alberta because a child’s rights to family maintenance and succession require that conception has occurred and the child was “in the womb” at the time of the father’s death: Wills and Succession Act , sections 27, 28(b), 58(2), 72(b)(iii) and 88; ALRI Final Report at paras 66-67, 79, 88, 91-95. [ 41 ] Therefore, I find that I have the jurisdiction to declare that Ms. Hoellwarth and Mr. Hoellwarth are both Nalla’s parents, and I make that declaration. B. Does Ms.

Hoellwarth have the right to apply to have the Registrar of Vital Statistics amend Nalla’s birth registration document? [ 42 ] As noted earlier, under Alberta’s legislative regime, where assisted reproduction results in conception after the death of a parent, a court process will be required to update or amend a birth registration document.

Once the court makes a declaration of parentage, there are two different processes by which a birth registration document can be updated or amended to reflect the declaration: one under the Vital Statistics Act , SA 2007, c V-4.1 ( VSA ) and one under the FLA . [ 43 ] In 2016, pursuant to the Vital Statistics and Life Modernization Act , SA 2016, c 26 , the Legislature made significant amendments to the VSA , including the provisions respecting applications to update or amend birth registration documents in the new

section 11 of the VSA . In particular, section 11(2) of the VSA provides:

(2) An application to amend the particulars of parentage and, if applicable, to change the name shown on the birth record of a child who is under 18 years of age or of a child who died before reaching 18 years of age may be made to the Registrar (

a) jointly by the parents by affidavit, where the purpose of the application is to add the particulars of one of them to the birth record, (

b) by a person by affidavit, pursuant to a declaration of parentage under

section 9 of the Family Law Act or a substantially equivalent order made in Canada, or (

c) by a parent by affidavit, if a parent died after the child was conceived but within one year after the birth of the child. [ 44 ] This

section provides that, in the specific circumstances set out in section 11(2) (

a) and (c), parents may be able to avoid the need for a court declaration by applying directly to the Registrar by filing an application supported by an affidavit. However, if a court ordered declaration is granted pursuant to

section 9 of the FLA (or a substantially equivalent order made elsewhere in Canada), then a “person” could apply to the Registrar to make the change. A decision of the Registrar under

section 11 of the VSA can be appealed to the Court of King’s Bench: VSA ,

section 62 . [ 45 ] The second process is that the court, at the time of making the declaration under the FLA , can order the Registrar to update and amend the birth registration document. Section 9(8) of the FLA provides:

(8) When making a declaration of parentage, the court may, in order to facilitate registration under the Vital Statistics Act , order one or more of the following: (

a) if the child is less than 18 years of age at the time the application is made, that the Registrar of Vital Statistics register or amend the name of the child in accordance with

section 10 of the Vital Statistics Act ; (

b) that the Registrar of Vital Statistics add the name of a parent to the child’s birth registration document; (

c) that the Registrar of Vital Statistics amend the parentage shown on the child’s birth registration document. [ 46 ] Therefore, under section 9(8)(

b) and (

c) of the FLA the court can order that the Registrar of Vital Statistics add a parent’s name to, and amend the parentage shown on, a birth registration document. In considering whether to do so, the court must consider the child’s views and preferences: FLA , section 9(9) . [ 47 ] Section 11(5) of the VSA provides that, in making an order under

section 11 of the VSA , the court “shall consider all relevant factors, including the best interests of the child, the rights of the applicant under the Canadian Charter of Rights and Freedoms and interests of the other parent named on the child’s birth records”. Section 11(5) of the VSA applies to an application under

section 11 of the VSA . However, in my view as a matter of consistent application similar considerations may also be considered by the court in granting an order under section 9(8) of the FLA . [ 48 ] In many cases, it may be most expedient to everyone involved to follow the more-direct FLA process, and for the court to order the Registrar to update and amend the birth registration document. This avoids the need and associated cost of a further application to the Registrar under the VSA .

This is particularly the case where the Registrar supports, does not oppose, or takes no position on the declaration application. However, if the Registrar opposes the declaration application, or asserts that it would appropriate for the court not to make an order under section 9(8) of the FLA , that may support the court refraining from doing so and requiring the applicant to apply to the Registrar under section 11(2) (

b) of the VSA , as this would respect and give meaning to the administrative regime put in place by the Legislature under the VSA . [ 49 ] In this case, the Registrar takes no position on Ms. Hoellwarth’s application, and in fact its only submissions were by way of a letter in which it clarified to the court the information it would require to update or amend Nalla’s birth registration document. In the circumstances, I conclude it is appropriate to consider an order under section 9(8) of the FLA .

[ 50 ] In my view, formally recognizing both of Nalla’s parents is in her best interests. First, it is consistent with the United Nations Convention on the Rights of the Child which was ratified by Canada in 1991. Although the Convention it did not expressly address posthumous conception, it acknowledges that parentage is fundamentally important to a child’s identity: ALRI Final Report at para 22. The Convention provides:

Article 7:1 The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

Article 8:1 States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference. [ 51 ] Formal recognition of Nalla’s parents confirms Nalla’s identity and her family relations. It also avoids unnecessarily differentiating her parentage from her sister when they have the same genetic parents. As Nalla’s parent and litigation representative, Ms. Hoellwarth has made it clear that Nalla’s view and preference is to have Mr. Hoellwarth added as her parent on her birth registration document.

I have not been made aware of any policy reasons not to grant the direction, and note the conclusion in the ALRI Final Report, noted earlier, that there is no principled reason to deny an after-born child the right to legal parentage: ALRI Final Report at page vi. In my view, an order in this case fulfils the objective and purposes of the FLA . [ 52 ] Accordingly, I order the Registrar of Vital Statistics to add Mr. Hoellwarth as parent on Nalla’s birth registration document and to amend the parentage thereon accordingly. Ms.

Hoellwarth’s counsel is directed to prepare the appropriate form of order that includes the information set out in section 11(8) of the VSA , and to submit it to me for my signature. [ 53 ] There shall be no costs of this application. Heard on the 5 th day of April, 2023. Dated at the City of Calgary, Alberta this 5 th day of June, 2023. M.A. Marion J.C.K.B.A. Appearances: Megan Kennedy for the Applicants