Jane Doe v. Alberta: What about the interests of the child?

On May 24th, the Toronto Star ran an editorial piece by U of T Family Law professor Brenda Cossman about a case that is seeking leave to appeal to the Supreme Court of Canada (“SCC”). The case, Jane Doe v Alberta, 2007 ABCA 50, deals with the question of the legal viability of a written agreement entered into

 “by the natural mother of a child and her co-habiting male partner [John Doe] (who did not father the child), which stipulates that the partner has neither parental rights nor any obligation to support the child.”

The Alberta Court of Appeal affirmed the lower court decision in rejecting the recognition of such a contract, on the premise that even though parental agents have the ability to make agreements with respect to parental rights and support payments, they were not able to completely preclude the courts from determining, ex post, the actual nature of the relationship between the child and the partner. In doing so, the Court of Appeal rejected the appellants’ view that their agreement prevented John Doe from ever fulfilling the legal test of “a settled intention to treat the child as the person’s own child.” The court stated, at para 23, that in their type of living arrangement,

“John Doe’s subjective intent not to assume a parental role will inevitably yield to the needs (and not merely the physical needs) of the child in the same household. Were it otherwise, one can only imagine the emotional damage visited upon the child. One must keep in mind that, among the factors cited in s. 48(2) [of Alberta’s Family Law Act, SA 2003, c F-4.5, which lists a variety of factors that a court is to consider in determining whether there has been a “settled intention”] is the child’s perception of the person as a parental figure.”

Additionally, the Court of Appeal stated that this decision did not constitute an infringement of liberty as per s.7 of the Charter by saying that John Doe’s freedom to choose to be a parent was not taken away, but merely linked to his decision to be in a relationship with Jane Doe. (at para 28)

The crux of Professor Cossman’s criticism is that the court unduly restricts personal liberties by inferring that just because John Doe is in a cohabiting relationship with the mother, that the two individuals in the relationship would be unable to effectively separate out their romantic and parental relationships.

Though the position of the Alberta courts is indeed one that restricts personal choices, I’d nevertheless contend that it was a right decision. Throughout the Court of Appeal’s decision, there is a thread of concern for the child. Yes, John Doe might not want to be a father, nor, may Jane Doe want him to be a father; but this decision clearly goes beyond these two and affects the child as well.

In my view, it seems better to ensure that the child is not precluded from getting the support he or she may need, even if it risks uncertainty for individuals in a romantic relationship with the mother. Giving effect to that agreement at such an early point in the child’s life will just use one snapshot of the relationship to govern these obligations without giving due weight to the evolving and dynamic nature of human relationships. Indeed, if the case is heard, and the Court of Appeal’s decision is reversed by the SCC, the child may very well be barred from ever claiming any support from this partner, even if the partner ends up being like a parent to the child.

But what of the implications of not recognizing the contract? Would single mothers be relegated to a life lacking relational fulfillment because would-be partners will be scared away? Would it be better if the law just gave effect to such parental-responsibility avoidance agreements, and just let individuals undertake the responsibility as they decide they’re fit to undertake? We’ll be sure that the SCC will take these concerns into consideration should it decide to hear this case. I just hope that they take the interests of the child into account as well.

Indeed, even in rejecting the appellants’ claim, the Court of Appeal conceded, at para 30, that,

“the child’s interests were not represented in the Court below nor on appeal. I question whether public policy would countenance a declaration of the sort sought by the Appellants without a careful assessment on an adequate factual foundation of the child’s interests and benefits that might be adversely affected.”