Father cannot be declared guardian of son born as a result of his sexual assault

Man who had sexual relations with 14-year-old was previously imprisoned for sexual interference

Father cannot be declared guardian of son born as a result of his sexual assault

The Provincial Court of Alberta has disallowed a man’s application to be considered the guardian of his son on the basis that the pregnancy leading to the child’s birth was the result of a sexual assault.

In PD v LM, 2020 ABPC 176, applicant PD and respondent LM began a sexual relationship in 2013 when he was 29 years old and she was 14 years old. In 2014, LM’s mother found out that LM was pregnant and filed sexual interference charges against PD. In 2017, PD was sentenced to imprisonment for 45 months. In 2018, PD was granted day parole, which is scheduled to be completed this December. Both PD and LM currently live in the greater Edmonton area.

PD went to court, seeking a declaration under s. 20 of the Family Law Act, SA 2003, c F-4.5 that he is the guardian of IM, the six-year-old child he fathered with LM, and a parenting or contact order giving him shared decision-making and supervised parenting or contact time. LM, on the other hand, sought a sole parenting order and sole guardianship of IM.

The Provincial Court of Alberta granted a sole guardianship and a parenting order in favour of LM and denied PD’s request for supervised contact time, finding that PD failed to establish on a balance of probabilities that he was IM’s guardian pursuant to s. 20 of the Family Law Act, nor that it would be in IM’s best interests to have even supervised contact with his father.

PD claimed to be IM’s statutory guardian under s. 20(2) and (3)(j) of the Act because he provided reasonable support in the form of diapers, clothes, daycare and four payments of $750. He also said that LM rejected his offer of monthly child support. The court found that PD did not demonstrate his bona fide intention to assume the responsibilities of guardianship of the child. A mere assertion of intent to provide support would not comply with the requirements of s. 20, the court said.

The court then stated that, even if PD had provided reasonable child support, he was disqualified to be IM’s guardian under s. 20(4) of the Act because his sexual relations with LM when she was under the age of 16, which amounted to sexual assault, caused the pregnancy resulting in IM’s birth. The court, rejecting PD’s contention that he was convicted of sexual interference and not sexual assault, said that s. 20(5) of the Act provides that, for a determination of guardianship under s. 20, the court may consider sexual assault to have occurred even without a charge or conviction.

Lastly, the court said that LM’s denial of contact between PD and IM was reasonable given that PD and IM are virtually strangers to one another and given that resuming contact may potentially retraumatize LM and jeopardize IM’s psychological and emotional health, which is intertwined with LM’s health as IM’s primary caregiver. The court noted that IM is doing well in his present situation with LM and her current partner, whom IM treats as his father.

Under s. 18 of the act, the court should consider the child’s best interests, including the presence of family violence and sexual abuse, in making a contact order. Here, the court found that PD had subjected LM to “misogynistic and predatory,” “controlling, manipulative and bullying” behaviours, as well as inflicted on her serious domestic violence and sexual abuse, which have impacted her mental health.

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