Jane+Doe+v.+Alberta


 * Jane Doe v. Alberta [2007]**

__Facts:__ • Jane Doe and John Doe live together in an unmarried relationship. • Jane decides to conceive a child through artificial insemination of a donor – John does not want to be a father. • After the child is born, Jane and John seek to enter into an agreement stipulating that John is not the father of the child, has no parental rights or obligations. • They brought an application to ensure their agreement would be recognized under the FLA. S.13(2), s.47, and s.48(1) of the FLA stipulate obligations of a person “living in a relationship of interdependence or some permanence” with the mother. • They argued that the s.13(2) understanding of parentage in assisted procreation is in direct conflict with the s.48(2) understanding of parentage for the purposes of custody support orders; if s.48(2) support obligation requirements are not interpreted within the framework of the expressed intention to become a parent in s.13(2), then s.13(2) seems largely meaningless. • They further held that the refusal of acknowledging the agreement, as per s.53, 85, and 86 of the FLA, would be a breach of the .7 Charter rights. Parental freedom to make personal life choices as a parent can only be interfered with when the child’s health or life is threatened, or when the parent is engaged in socially unacceptable conduct. • The Chamber judge refused to grant the declarations – no judgment could preclude that, in the future, some court might grant that John stood in the role of parent. S. 13 does not override s. 48. With regards to the Charter argument, she held that the FLA does not impair the freedom of contract and so does not infringe the Charter. • Jane and John appealed to the Alberta Court of Appeal.

__Issue:__ • Can the court override an adult’s personal intention to become a parent when determining whether that adult is i//n loco parentis//? • Does the broad understanding of guardianship rights and the refusal to acknowledge an adult’s expressed intention to not be a parent (i.e., make personal life choices with regards to parentage) infringe s.7 of the Charter?

__Held:__ • No; No; Appeal dismissed.

__Reasoning:__ (Berger J.A.)

//Ways to become a parent:// • S.13(2) of the Act does not make John the father – his sperm was not used and he did not consent to being a parent. However, John has acquired the status of parent for the purposes of support obligations (by s.47-48). Finding that John is a parent under s. 48 of the Act, but not under s. 13(2), is an acceptable conclusion. They are merely two different legislative mechanisms whereby a person may be found to be a parent.

//Meaning of "demonstrate a settled intention":// • In doing a s.48(2) analysis of whether or not a person has “demonstrated a settled intention,” the courts will consider several factors. S.48 contemplates a “contextual, holistic, and ex post inquiry, and does not allow for a contract to preclude any factors from the inquiry. • These factors include: formal intention, intention from actions ==> or, more broadly, whether the child participates in the extended family in the same way a biological child would; whether the person provides financially for the child; whether the person disciplines the child as would a parent; whether the person represents the child, implicitly or explicitly, as would a parent; the nature of the child’s relationship with the absent biological parent (also, the child’s perception of the person as a parental “figure”). • Personal intention to become a father is relevant, but not determinative (see also //Chartier//). The court will consider objective intention, through the actions of the adult towards the child, and based in the child’s best interest. The //in loco parentis// doctrine in CML looks traditionally to “action to evidence intention.”

//Nature of the relationship should not be seen as static or predictable:// • John is a parent from a practical and realistic point of view, because of his intention to live with Jane. The child would, no doubt, develop emotional and psychological bonds to John, because of the living arrangement. “Can it seriously be contended that he will ignore the child when it cries?” It would be inappropriate and an error of law to preclude this conclusion at the time of birth. The nature of the relationship must be assessed over a period of time.

//Judicial recognition of valid contracts:// • “Maintenance is the right of the child” – courts should exercise discretion when recognizing contracts that deprive the child of this right.

//Charter Issue:// • Because John chose to enter into a relationship with the mother of a newborn child, he was not deprived of freedom of choice to take on the role of parent.

__Ratio:__
 * No agreement between parents can oust the jurisdiction of a court to determine parental rights and obligations.**