PDF version: Non-biological father from separated same-sex couple declared a legal parent 

Decision considered: D.W.H. v D.J.R., 2011 ABQB 608

Background

Mr. H. and Mr. R. lived together as partners and planned to have a baby through a surrogate mother. Mr. R’s sperm was used to conceive the baby, S, with Ms. D as the surrogate mother. Ms. D lived with the two fathers and Mr. R when the baby was first born. After that, the baby lived with the two male partners and visited the surrogate mother once or twice a week. The couple separated when S was 3 years old and Mr. H. applied for access. Madame Justice Eidsvik in D.W.H. v D.J.R., 2009 ABQB 438 found that the child had a mother (who was the surrogate), but no father who could be recognized in law (see my previous post “Gay fathers not seen as a parental unit under the Family Law Act“). Mr. H was given access until November 2007 when, based on a parenting assessment, contact was discontinued. Mr. H.’s relationship with S has since almost completely ceased. Mr. H. applied for guardianship but his application was opposed.

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PDF version: No Advance Costs Awarded on Charter Application 

Case considered: D.W.H. v D.J.R., 2011 ABQB 119

Mr. H. and Mr. R. lived together as partners and planned to have a baby through a surrogate mother. The baby lived with the two male partners and visited the surrogate mother once or twice a week. The couple separated and Mr. H. applied for access. Madame Justice K.M. Eidsvik in D.W.H. v D.J.R., 2009 ABQB 438 found that the child had a mother (who was the surrogate), but no father who would be recognized in law (see Melissa Luhtanen, Gay Fathers Not Seen as Parental Unit Under Family Law Act). Mr. H. was given access to the child and later, Mr. R. successfully applied to become the child’s guardian. Mr. H. also applied for guardianship but his application was opposed. Mr. H. proceeded to make a section 15 Charter challenge to the validity of relevant sections of the Family Law Act, SA 2003, c. F-4.5 (”FLA“) and Vital Statistics Act, RSA 2000, c. V-4 (”VSA“). In that application, Mr. H. is arguing that these sections discriminate against him on the grounds of gender and sexual orientation. The present application is for advance or interim costs in order for Mr. H to retain counsel for the constitutional argument.

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PDF version: The Saskatchewan Court of Appeal’s Marriage Commissioners Decision – the never-ending fight for human rights of same-sex couples  

Case and Legislation commented on: In the Matter of Marriage Commissioners Appointed under the Marriage Act, SS 1995, c M-4.1, 2001 SKCA 3; Marriage Act, RSA 2000, c M-5.

The Saskatchewan Court of Appeal considered two proposed amendments to the Marriage Act, S.S. 1995, c. M-4.1. The Act legislates on the solemnization of marriage in Saskatchewan. It provides for specific religious officials and marriage commissioners to solemnize marriages. The Lieutenant Governor in Council in Saskatchewan sought the Court’s opinion on potentially amending the Marriage Act after complaints from marriage commissioners who said that solemnizing same-sex marriages breached their rights under s.2(a) of the Charter. Read the rest of this entry »

Cases Considered: D.W.H. v. D.J.R., 2009 ABQB 438

PDF Version: Gay fathers not seen as a parental unit under the Family Law Act

The law is still unclear when dealing with gay and lesbian parental units. These families slip through the gaps in legislation and under the Family Law Act, S.A. 2003, c. F-4.5. This case demonstrates some of the legal gaps that affect children and their gay, lesbian and bisexual parents.

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