SR v MR 2023 ABKB 464 - Guardianship, parent absenteeism, sexual assault and best interests of the child

In SR v MR, 2023 ABKB 464, Justice Malik considered an application from a biological father who was seeking guardianship of a four-year old.

The father had not been a part of the child’s live for the entirety of the child’s life. In fact, initially the father sought a DNA test to confirm that he was the biological father of the child which he was.

Following the results of the DNA test, the father applied forguardianship, and contact with the child, in addition to an application to change the child’s surname.

In response to the father’s application, the mother claimed in her materials that the child was conceived out of sexual assault. The father denied this and testified that their sexual encounter did not involve any struggle or opposition and says there was “100%” consent. The father further claimed that the mother concocted a story about sexual assault to defeat his applications.

As set out in this case, there are two routes a guardian application might take 1) section 20 of the Family Law Act, or 2) section 23 of the Family Law Act. What distinguishes one from the other is the relevance of the best interests of the child.

Under section 20(4) of the Family Law Act, if the pregnancy resulting in the birth of the child was a result of a sexual assault, the parent committing that assault is not eligible to be a guardian of the child under this section.

Justice Malik noted that the term “sexual assault” is not defined in section 20 of the Family Law Act, other family law legislation or any corresponding regulations. Justice Malik found that absent a definition “sexual assault” that the legislature intended the meaning to be consistent with the definition set out in the Criminal Code.

In considering the mother’s allegations of sexual assault, Justice Malik declined to pick one party’s evidence over the other’s, finding that both parties were equally credible.

Without a conclusion that the child was born as a result of sexual assault, success of the father’s application for guardianship was a possibility under section 20(4) of the Family Law Act.

With allegations of sexual assault put aside, the father’s application turned on whether it was in the best interests of the child. In considering the facts of the case, Justice Malik noted:

- Since the child’s birth, the father had not made any meaningful offers to provide financial support for the child

- During the questioning phase in the litigation the father refused to provide information about his education, employment, marital status

- The father refused to state how he would support the child

- The father refused to provide a criminal background check

- The child was at an age where she was firmly placed within a stable family network

- The father was a stranger to the child

- There was no expert assessment on how to integrate the father into the child’s life

- The father failed to understand that his introduction to the Child must proceed at a measured pace

- The father’s focus on his own interests strongly weigh against any form of contact

- There was no evidence that the Child is to learn about her parentage or that denying the father contact would negatively impact the child

Ultimately, Justice Malik declined to grant the father’s application for guardianship and to change the child’s name finding that it was not in the child’s best interests.

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