Diaper duty revisited

In 2007, the Alberta Court of Appeal refused to recognize the validity of a written agreement between common-law partners John and Jane Doe which stipulated that John had no parental responsibilities towards Jane's child. Why must Alberta men pay for sex whenever a child is in the offing?

Grant Brown - May 6, 2008

The facts in Doe v Alberta, 2007 ABCA 50, are easily summarized: John and Jane Doe are common-law partners. Jane wanted a child, but John did not wish to father a child, 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 to a child. John and Jane wanted to enter into an express written agreement which would stipulate that John had no parental rights or responsibilities toward Jane’s child. They sought a declaration of the validity of such an agreement, in view of certain provisions in the Family Law Act that grant the courts ultimate supervisory authority over the assignment of parental rights and responsibilities.



In effect, John and Jane Doe wanted the court to exercise its supervisory authority at present, in such a way as to bind the supervisory authority of a future court that might otherwise be called upon to adjudicate their parental rights and responsibilities. They wanted to predetermine the outcome of any legal dispute over parental rights and responsibilities that might arise. It is important to note that no clause in their agreement actually contradicted the provisions in the Family Law Act. They didn’t ask the court to over-ride the Act; they asked it to write into stone what might otherwise be a changing and unpredictable legal status under the Act.



Instead of avoiding uncertainties associated with idiosyncratic judicial interpretation, they got a foretaste of it. In rejecting the declaration sought, the Alberta Court of Appeal argued:

[22] …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? When it stumbles? When the soother needs to be replaced? When the diaper needs to be changed?


[23] In my opinion, 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-à-vis the child. 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 the Family Law Act] is the child’s perception of the person as a parental figure…


[28] As I see it, John Doe was not deprived by the legislative scheme of the ability to order his life and his respective rights and obligations towards Jane Doe’s child as he saw fit. In fact, he chose freely to enter into a relationship of interdependence of some permanence with the mother of a newborn child. Going back to the realities, support obligations flow from the choice made by John Doe.

The essence of this decision, to be blunt, is that men must pay for sex whenever a child is in the offing. I have some issues with that proposition even when the child is the man’s biological offspring. For example: If a woman seduces a man who is intoxicated or otherwise incapable of consenting to sex, it should lead to a rape conviction by the woman, not a lifetime of involuntary servitude by the man. If a woman induces a man to have sex with her by lying about being infertile or on birth control, this fraud should vitiate the man’s support obligations. If a woman gets pregnant, hides the fact from the father by disappearing for a few years, and then comes back with her hand out asking for child support after he has been deprived of an opportunity to be a part of the child’s life, this kidnapping should also vitiate his financial obligations to the child. Anything else would be un-libertarian.



But the Court of Appeal went one giant leap further by implying that the mere choice to “enter into a relationship of interdependence of some permanence with the mother of a newborn child” necessarily entails an inescapable obligation to financially, physically, and emotionally support the child. Why? Simply because “support obligations flow.” That is no argument, unless you count begging the question an argument. Since it is possible to voluntarily contract into a specific and unchanging set of parental rights and responsibilities, taking away the freedom to do so is precisely to deprive this couple of the ability to order their lives and their respective rights and obligations towards the child as they see fit. The question is why John and Jane Doe must be deprived of the freedom of contract that Jane and her sperm donor have exercised.



If John Doe were a favoured uncle who lived in the same home as the mother of a newborn child, or a gay house-mate or renter, or a live-in nanny, then surely, he would have all of the duties of care for infants in distress that members of society at large have, plus whatever additional duties were specifically contracted for with the mother – and nothing more. Furthermore, in that case, rather than John owing support obligations to the child, Jane might well owe John remuneration for his invaluable daycare services. Why, on the mere basis that John and Jane share a bed, is the flow of entitlement to financial support reversed by the Alberta Court of Appeal?



My position has the singular advantage of being endorsed by the Supreme Court of Canada. In the leading case dealing with the equitable doctrine of unjust enrichment in cohabitation arrangements, Peter v Beblow (1993), 1 S.C.R. 980, a woman sought compensation from her common-law partner for domestic services rendered to him and his two children. Although Mr. Beblow had provided, among other things, free room and board for Ms. Peter and her own four children throughout the time period in question, the Supreme Court of Canada determined that Ms. Peter was entitled to additional compensation. They gave her Mr. Beblow’s home, free and clear, for her contributions during the 12-year cohabitation, although really only for the 4 or 5 years before his two children had left the home. In coming to this conclusion, the court said:


[12] This court has held that a common law spouse generally owes no duty at common law, in equity, or by statute to perform work or services for her partner…


[13] Nor… was there any obligation arising from the circumstances of the parties. The trial judge held that the appellant was “under no obligation to perform the work and assist in the home without some reasonable expectation of receiving something in return…” This puts an end to the argument that the services in question were performed pursuant to obligation. It also puts an end to the argument that the appellant’s services to her partner were a “gift” from her to him. The central element of gift at law – the intentional giving to another without expectation of remuneration – is simply not present…


[17] …Today courts regularly recognize the value of domestic services. This became clear with the court’s holding in Sorocan… If there could be any doubt about the need for the law to honestly recognize the value of domestic services, it must be considered to have been banished by Moge v Moge…


Note that the domestic services referred to in the above Supreme Court of Canada cases include the very same services alluded to by the Alberta Court of Appeal in Doe.



It is unfortunate that the Supreme Court of Canada declined to hear an appeal of Doe v Alberta, so that some clarity and consistency might be found in this area of the law. 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 Alberta Court of Appeal’s decision at least has the virtue of being consistent with a long line 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.

Western Standard -- Diaper duty revisited