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: The Repeal of the Long Gun Registry: A Violation of the Federal Government’s Obligations Concerning Violence Against Women?

Legislation considered: Bill C-19, An Act to amend the Criminal Code and the Firearms Act (”Ending the Long-gun Registry Act”), 41st Parliament, 1st Session

December 6, 2011 was the National Day of Remembrance for Violence Against Women, which marked the 22nd anniversary of the Montreal Massacre. The Globe and Mail’s Jane Taber indicated that “government MPs [were] purposely shut out from officially speaking at and attending an event on Parliament Hill to honour the 14 young women who were shot dead in 1989,” because the government is about to repeal the long gun registry (see Bill C-19). The Montreal Massacre was one of the pressure points for the registry, as was the use of firearms in crimes of domestic violence. When the Alberta government challenged the constitutionality of the registry, which was implemented via the Firearms Act, SC 1995, ch 39, as an amendment to the Criminal Code, the Supreme Court found that it was properly enacted under the federal government’s criminal law powers (see Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 SCR 783 at paras 43, 59). The enactment of the law creating the registry was constitutional; but is its repeal unlawful? I think an argument can be made that the federal government’s abolishment of the long gun registry is unconstitutional on Charter grounds, as well as contrary to international law.

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PDF version: Tracing Original Property to Replacement Property: What Evidence is Required? 

Case considered: Scheffelmeier v. Krassman, 2011 ABCA 64

In Scheffelmeier v. Krassman the Alberta Court of Appeal once again dealt with tracing exempt property under the Matrimonial Property Act, R.S.A. 2000, c. M-8 (MPA). Tracing is one of the more contentious matters in matrimonial property litigation, as is the matter of non-disclosure of financial information, also a factor in this case. Scheffelmeier is of interest because it includes a dissenting opinion on the application of the long-standing principle that “[t]racing can be inferred, implied, or presumed” (Harrower v. Harrower (1989), 97 A.R. 141; 21 R.F.L. (3d) 369 at 376 (C.A.)). The point of contention between the majority opinion of Mr. Justice Ronald L. Berger and Madam Justice Patricia Rowbotham and the dissenting opinion of Mr. Justice J.D. Bruce McDonald also illustrates the problem caused by the lack of enforcement mechanisms for the disclosure requirements in the MPA.

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Case commented on: Maykowski v. Maykowski, 2011 ABQB 31

This case is described by Justice D.C. Read as “high-conflict divorce proceedings” commenced by the husband in combination with a claim for matrimonial property division, and in which the wife counterclaimed for divorce and distribution of matrimonial property. The wife sought summary judgment based on an alleged settlement agreement between the parties concerning the divorce and matrimonial property. Justice Read held that summary judgment was not available, based on an interpretation of Rule 12.48 of the new Alberta Rules of Court, Alta. Reg. 124/2010. According to Justice Read, “It is patently clear from R. 12.48 that summary judgment is not available in any action under the Divorce Act. Although summary judgment is available in proceedings under the Matrimonial Property Act, if the action was commenced as a combined proceeding with the Divorce Act, because of R. 12.48(b), a summary judgment application under the Matrimonial Property Act can be made only after that action has been severed from the Divorce Act proceedings.” (at para. 16). Because the alleged settlement agreement dealt with claims made under the Divorce Act related to child custody, child and spousal support in addition to matrimonial property claims, summary judgment was not available (at para. 19). Justice Read noted that this would also have been the outcome under the old Alberta Rules of Court, Alta. Reg. 390/1968, Rule 159, but noted that the exclusion has been outlined in more detail in the New Rules (at para. 15). Justice Read ordered the parties to proceed immediately to alternative dispute resolution, and if unsuccessful there, to trial (at para. 31).

Case and Legislation commented on: In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, S.S. 1995, c. M-4.1; Marriage Act, R.S.A. 2000, c. M-5

The Saskatchewan Court of Appeal ruled last week on the constitutionality of proposed amendments to Saskatchewan’s Marriage Act, S.S. 1995, c.M-41, which would have allowed marriage commissioners to decline to perform marriage ceremonies that were contrary to their religious beliefs. The Court found that the proposed amendments violated the equality rights of gays and lesbians under section 15 of the Canadian Charter of Rights and Freedoms, and that this violation could not be justified under section 1 of the Charter because the Saskatchewan government had not minimally impaired the rights of same sex couples in the way it had set out the proposed scheme for religious exemptions.

What are the implications of the decision in Alberta? Surprisingly, the Marriage Act, R.S.A. 2000, c. M-5, still defines marriage as “marriage between a man and a woman” (section 1(c); see also the preamble), even though in 2004 the Supreme Court confirmed that the power to determine whether same sex couples have the capacity to marry belongs to the federal government under section 91(26) of the Constitution Act 1867 (Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698). While the Alberta government tried to shield the law by using section 33 of the Charter, the notwithstanding clause, that clause could not have saved the invalidity of the Act on division of powers grounds, and the relevant section of the Marriage Act expired in 2005 in any event. Furthermore, Alberta marriage commissioners have been performing same sex marriages in this province since 2005 in spite of the heteronormative definition in the Marriage Act. An attempt to bring in a law similar to that ruled upon in the Saskatchewan case was defeated when Bill 208, the Protection of Fundamental Freedoms (Marriage) Statutes Amendment Act, 2006, was blocked by members of Alberta’s opposition parties. This Bill would have amended the Marriage Act and human rights legislation to protect marriage commissioners who refused to perform same sex marriages on religious or moral grounds. On the face of it then, marriage commissioners in Alberta do not have the sort of opting out protection that was considered in the Saskatchewan case.

Melissa Luhtanen of the Alberta Civil Liberties Research Centre will be providing further analysis of the Saskatchewan case and its implications in Alberta on ABlawg; readers may also be interested in this post on the case by Denise Réaume on the Women’s Court of Canada blog.

PDF version: Are the Creditors Paying Attention? 

Case considered: Seguin v Graham and 1356248 Alberta Ltd., 2010 ABQB 582

I find it odd that someone who has failed to file tax returns for the last 14 or so years and who has been pursued by Ontario’s maintenance enforcement program for failing to pay child support for at least 7 years would commence a court action that brings these facts plus details of his annual income and net worth to light in the public forum that is a courtroom. And yet that is exactly what Donald Seguin did when he sued Sandra Graham for unjust enrichment and claimed a constructive trust over her house or, alternatively, a judgment for half of the increase in value of the house over the course of their cohabitation. The subsequent publication of the decision of Mr. Justice R.A. Graesser on the Alberta Courts website and on the Canadian Legal Information Institute’s (CanLII) website in late September puts the facts out there for anyone to read. Justice Graesser’s consideration of Mr. Seguin’s efforts to avoid the acquisition of assets and his attempts to shelter his assets from his creditors make this rather ordinary case concerning the division of assets on the breakdown of a common law relationship of interest to more than the parties themselves. One has to wonder, however, if the creditors are paying attention?

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PDF version: Recognizing Foreign Divorces: The Public Policy Defence

Case considered: Zhang v. Lin, 2010 ABQB 420

Zhang v. Lin raised the question of whether a divorce granted in Texas should be recognized in Alberta. Interestingly, the court determined that it should refuse recognition of the Texas decree because it violated Canadian public policy. In the past, such a defence has been seen as more of a theoretical than a real possibility. In Zhang, however, the court came to that conclusion very readily. What concerned the Alberta court was not so much the divorce itself but the apparent lack of corollary relief by way of child and spousal support available to the respondent in Texas.

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PDF version: Questions About the Role of Reasonableness and Mutual Restraining Orders in Family Violence Cases 

Cases considered: Petropoulos v. Petropoulos, 2010 ABQB 296; Andres v. Andres, 2009 ABQB 26

The Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA) has been in force since 1999. One of the motivations behind the PAFVA was to make it easier for victims of family violence to obtain emergency protection than the previous system of civil restraining orders had allowed for. Nevertheless, the practice of issuing restraining orders in family violence cases has not disappeared. In fact, there are a number of cases where judges have issued “mutual restraining orders” when deciding whether to confirm emergency protection orders issued under the PAFVA. This comment will raise some concerns with that practice. It will also review the propriety of an objective component to proving family violence in order to obtain relief under the PAFVA. Both of these issues arise in two recent decisions of Justice Joanne Veit of the Alberta Court of Queen’s Bench.

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Cases considered: L.L.S. v. W.M.C., 2009 ABQB 527

PDF version: What Counts as “Sexual Abuse” under the Protection Against Family Violence Act?

Justice Donald Lee has written another decision dealing with a definitional issue under the Protection Against Family Violence Act, R.S.A. 2000, c.P-27 (PAFVA). In L.L.S. v. W.M.C., 2009 ABQB 527, Justice Lee had to consider whether to confirm an Emergency Protection Order (EPO) constraining a father’s access to his children because the father was watching pornography and openly engaging in sexual behaviours in the presence of his children. Unfortunately, Justice Lee concluded that this behaviour did not amount to “sexual abuse” without endeavouring to define the term. Further, the case highlights concerns about the interplay between child welfare legislation, custody and access laws and the PAFVA.

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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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