Author Archives: Melissa Luhtanen

About Melissa Luhtanen

Melissa Luhtanen is a lawyer and a Human Rights Educator at the Alberta Civil Liberties Research Centre. Melissa was called to the Alberta Bar in 2000. She is a seasoned teacher of both provincial and federal human rights law, with extensive experience speaking to audiences that include judges, teachers, and corporate executives. Melissa is the author of several guidebooks for teachers about human rights issues including, freedom of expression, refugee rights, and sexual orientation and gender identity rights.

Court of Appeal Reaffirms Gay, Non-bio Dad’s Status as Legal Parent

PDF version: Court of Appeal Reaffirms Gay, Non-bio Dad’s Status as Legal Parent

Case commented on: DWH v DJR, 2013 ABCA 240.

This case began to wind its way through the courts when Mr. H. and Mr. R. split up. Mr. H. and Mr. R. had been living together as partners and they had arranged to have a baby through a friend, Ms. D, using Mr. R.’s sperm.  In exchange they agreed to give Ms. D. sperm for her to have a second baby that she and her partner would raise. Ms. D. gave birth to baby S. and for a short period of time Ms. D. lived with the two men and baby S. Baby S. lived with Mr. H. and Mr. R. for three years until, in June 2006, the couple split up. S. called Mr. H. and Mr. R. “Papa” and “Daddy” respectively. After they split up S. lived with Mr. R.

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Non-Biological Father from Separated Same-Sex Couple Declared a Legal Parent

By: Melissa Luhtanen

PDF Version: Non-biological Father from Separated Same-Sex Couple Declared a Legal Parent 

Case Commented On: 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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No Advance Costs Awarded on Charter Application

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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The Saskatchewan Court of Appeal’s Marriage Commissioners Decision – The Never-Ending Fight for Human Rights of Same-Sex Couples

By: Melissa Luhtanen

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, 2011 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. Continue reading →

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

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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