Scales of justice out of balance

By Grant B. Brown, guest Columnist, June 4, 2007

The Alberta Court of Appeal, in Doe v. Alberta, has called into question decades of jurisprudence from the Supreme Court of Canada (SCC) on the obligations of a common-law partner to the children of that partner.

It has also set the stage for what hopefully will be an eventual SCC ruling clarifying exactly who owes what to whom in common law relationships.

The way it stands now, women acquire rights, while men -- even if their female partners want them free of them -- acquire obligations.

John and Jane Doe -- obviously not their real names -- are common-law partners. Jane wanted a child, but John didn't. Nor did he wish to stand in the place of a parent, act as a guardian, or support a child.

Jane was artificially inseminated with another man's sperm, and gave birth. John and Jane want to enter into an express written agreement which would stipulate that John has neither parental rights nor any obligations towards Jane's child.

They sought a declaration of the validity of their agreement, despite the Family Law Act which gives final authority over the issues of parental rights and responsibilities to the Courts.

The courts, so far, have rejected their request. The Alberta Court of Appeal (ACA) stated: "...The "settled intention" to remain in a close, albeit unmarried, relationship thrust John Doe, from a practical and realistic point of view, into the role of parent to this child. Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed ....?

"... a relationship of interdependence with the mother of the child in the same household, of itself, will likely create a relationship of interdependence of some permanence, vis-a-vis the child .... Were it otherwise, one can only imagine the emotional damage visited upon the child ... Going back to the realities, support obligations flow from the choice made by John Doe."

Suppose John Doe were a favoured uncle who lived in the same home as the mother of a newborn. Or suppose he were a renter, or a live-in nanny.

In any of those cases, surely, he would have all the same duties of care for infants in distress that members of society at large have. And nothing more.

FurtherRead More ..in that case, rather than John owing support obligations to the child, Jane might well owe John remuneration for his day-care services.

Why, on the mere basis that John and Jane share a bed, is the flow of entitlement to financial support reversed by the ACA?

This reasoning has been endorsed by no less an authority than the Supreme Court. In Peter v. Beblow, a woman sought compensation from her common-law partner for domestic services rendered to him and his two children.

Although Mr. Beblow provided free room and board for Ms. Peter and her own four children, the SCC determined Peter was entitled to additional compensation. They gave her Beblow's home, free and clear.

The state of the law in Alberta today is that, when a man lives in a relationship of some permanence with the mother of a biologically unrelated child, he acquires support obligations toward that child; but when a woman lives in a relationship of some permanence with the father of a biologically unrelated child, she acquires rights to his property.

The ACA's decision at least has the virtue of being consistent with a long string of family-law cases in Canada which interpret the supposed "mutuality of rights and obligations" arising from these relationships so as to presumptively assign all of the rights to the mothers and all of the obligations to the fathers.

One can only hope the Supreme Court will settle this imbalance.

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