Gingell v. R., [1976] 2 SCR 86

Supreme Court of Canada

Gingell v. R., [1976] 2 S.C.R. 86

Date: 1975-06-26

Lyle Gingell Appellant;

and

Her Majesty The Queen Respondent.

1974: December 10, 11; 1975: June 26.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Infants—Illegitimate children abandoned by mother—Hearing to determine whether they were neglected children and resulting in their being committed to custody of Director of Child Welfare as temporary wards of the Crown—Whether father entitled to notice of hearing—The Child Welfare Act, R.S.A. 1970, c. 45, ss. 14(a), (f), 19(1), 28(2), 30(3).

The appellant was the father of two illegitimate children. The father and mother and the children lived together as a family unit until the father left for another city, leaving the children with the mother. The latter abandoned the children and following their apprehension by the Director of Child Welfare a hearing was held before a judge of the Juvenile Court to determine whether they were neglected children. The hearing, of which no notice was given to the appellant, resulted in the children being committed to the custody of the Director as temporary wards of the Crown.

The appellant sought to appeal against the temporary wardship order, relying upon the appeal provisions contained in s. 27(1) of The Child Welfare Act, R.S.A. 1970, c. 45. The appeal was dismissed on the ground that the appellant was not a “parent” within the meaning of either s. 19(1) or s. 27(1), because that word did not apply to the father of an illegitimate child. Consequently the appellant was not entitled to notice under s. 19(1) and had no right of appeal under s. 27(1).

The appellant appealed to the Appellate Division. It was there held that the appellant was not entitled to notice of the hearing under s. 19(1) because he was not a “parent” within the meaning of that subsection. The Appellate Division was of the opinion that in revising the Act in 1966 by changing the definition of the word “parent” and by enacting the provisions of ss. 28(2) and 30(3), the Legislature had manifested an intention to restrict the meaning of the word “parent” so as to preclude its application to the father of an illegitimate child. However, because s. 27(1), in addition to giving a

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right of appeal to a parent or guardian, also refers to “other person in whose care the child may have been”, a new hearing before the Supreme Court was directed to determine if the appellant was entitled to appeal under s. 27(1).

With leave, the appellant appealed to this Court on the question of whether he was entitled to receive notice under s. 19(1).

Held: The appeal should be allowed.

Prima facie, the word “parent” when used in a statute should be given its ordinary meaning unless, in the context of the statute, a restricted meaning should be given.

The proper starting point in determining the meaning of the word “parent” in s. 19(1) is to consider the meaning of the word “child” as used in Part 2 of the Act. That word is defined in s. 14(a) as meaning a “boy or girl actually or apparently under eighteen years of age”. Part 2 of the Act is entitled “Neglected and Dependent Children”. It makes provision for the care and custody of neglected children. Its provisions are intended to apply to all children, and, if there were any doubt on this matter, it is removed by the reference to “a child born out of wedlock” in ss. 28(2) and 30(3). Therefore, when the Act refers to a parent in relation to an illegitimate child, it must refer to the father and to the mother of that child.

The enactment of ss. 28(2) and 30(3) did not require that a special meaning, other than its ordinary meaning, be given to the word “parent” in s. 19(1). The purpose of s. 28(2) was to preclude the father, after a permanent wardship order had been made, from asserting his right as a guardian of the child, jointly with the mother, which, although the marriage took place after the order, retroactively dated back to the birth of the child. His status, on an application for permanent wardship, would be different, as father of a legitimate child and therefore its guardian, from his status as father of an illegitimate child and not its guardian. The fact that s. 28(2) would prevent him from asserting that superior status, as a result of a subsequent marriage, does not necessarily imply that, as father of an illegitimate child, he was not entitled to any notice of a hearing to make it a permanent ward of the Crown.

The reason for s. 30(3) was the existence of s. 2 of The Legitimacy Act, R.S.A. 1970, c. 205. The consent

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of the guardians is required for the adoption of a child, but, in the case of an illegitimate child, the sole guardian is the mother. Without the existence of s. 30(3), if the mother of an illegitimate child consented to its adoption and adoption proceedings had been commenced, but, before the adoption order was made, the parents of the child were married, the father would be able to contend that, as the child was legitimate from birth, his consent to the adoption would be required. The existence of s. 30(3) does not necessitate the inference that, as a parent of the child, it was not intended that he be given notice of proceedings to make the child a ward of the Crown.

The Legislature, in s. 14(f), did not purport to limit the ordinary meaning of “parent” in any way. It did not define the word, but only stated that it should include a step-parent.

Therefore the word “parent” was being dealt with in relation to a series of provisions dealing with neglected and dependent children, and which apply to illegitimate children as well as to legitimate children. Accordingly, when the Act, in s. 19(1), refers to the parent of an illegitimate child it refers to the father as well as to the mother of that child.

Re M, An Infant, [1955] 2 Q.B. 479, not followed; White v. Barrett, [1973] 3 W.W.R. 293, applied; Children’s Aid Society of Metropolitan Toronto v. Lyttle, [1973] S.C.R. 568, referred to.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], allowing in part an appeal from a judgment of Cullen J. Appeal allowed.

Hugh F. Landerkin, for the appellant.

Douglas F. McLeod, Q.C., for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—The only question in issue in this appeal is whether the appellant was entitled to receive notice, pursuant to s. 19(1) of The Child Welfare Act, R.S.A. 1970, c. 45, of a hearing before a judge of the Juvenile Court, in the Province of Alberta, held on January 22, 1973, to determine whether his two illegitimate children were neglected children and which resulted in their being committed to the custody of the Director of Child Welfare as temporary wards of the Crown

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for a period of time terminating on August 1, 1973.

The facts are stated in the reasons for judgment of the Appellate Division, as follows:

The children are illegitimate and the record indicates the father is the natural father of the children and that he, the mother and the children lived together as a family until September 1972. At that time they were removed from the welfare rolls of Calgary and the father moved to Edmonton leaving the children with the mother. The purpose of his leaving for Edmonton is not disclosed by the record, nor is there any evidence to indicate whether he assisted in the maintenance of the children after his move. The mother abandoned the children in December of 1972, at which time they were apprehended by the Director pursuant to the power given to him under s. 15 of the Act.

The hearing to determine whether the children were neglected children was held on Monday, January 22, 1973. The evidence indicates that the mother avoided service of a notice of the hearing on her and at the hearing the sitting Juvenile Court Judge dispensed with the necessity of serving notice on the mother. No notice was given to the father. On Friday, January 19, that is three days before the hearing, the father attempted to get in touch with the case worker in charge of the children but was not successful. He spoke to the case worker’s secretary, was advised of the trial, and stated that he wanted to get in touch with the child welfare case worker after the trial as he was thinking of getting married in two or three months and at that time would like to have custody of the children. It is clear from the evidence that the question of dispensing with the giving of notice to the father was not considered as it was assumed that he was not entitled to notice.

Section 19, subsections (1) and (2) of the Act set out the provisions respecting notice and read as follows:

“19. (1) Notice of the nature, time and place of every hearing under this Part shall be served personnally upon a parent or guardian of the child to whom the hearing relates at least ten days before the date fixed for the hearing and at that time the judge shall not proceed to hear and dispose of the matter until he is satisfied that the parents or guardian and the Director have been notified of the hearing, or that every reasonable effort has been made to give the notifications.

(2) Notwithstanding subsection (1), if the circumstances warrant it, a judge

(a) may at any time before the time of a hearing

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(i) authorize service ex juris and service by double registered mail or any other form of substituted service, and

(ii) authorize the giving of a specified period of notice being less than ten days,

and

(b) whether or not such an authorization has been given, may at the time of a hearing

(i) accept service made in any of the forms mentioned in clause (a), subclause (i) as sufficient service, and

(ii) accept less than ten days’ notice as sufficient notice,

or may, before or at the time of a hearing, dispense with service of notice.”

The appellant sought to appeal against the temporary wardship order, relying upon the appeal provisions contained in s. 27(1) of the Act, which provides:

27. (1) Within thirty days from the making of an order under this Part by a judge of the district court or the juvenile court,

(a) a parent, guardian or other person in whose care the child may have been, or

(b) the Director,

may appeal to a judge of the Supreme Court by filing with the clerk of the court of the judicial district within which the order was made a notice of appeal setting out the particulars of the order appealed from and the grounds for the appeal.

The appeal was dismissed on the ground that the appellant was not a “parent” within the meaning of either s. 19(1) or s. 27(1), because that word did not apply to the father of an illegitimate child. Consequently the appellant was not entitled to notice under s. 19(1) and had no right of appeal under s. 27(1).

The appellant appealed to the Appellate Division. It was there held that the appellant was not entitled to notice of the hearing under s. 19(1) of the Act because he was not a “parent” within the meaning of that subsection. However, because s. 27(1), in addition to giving a right of appeal to a parent or guardian, also refers to “other person in whose care the child may have been”, a new hearing before the Supreme Court was directed to

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determine if the appellant was entitled to appeal under s. 27(1).

The appellant, with leave, appealed to this Court on the question defined at the beginning of these reasons.

During the argument it was pointed out to counsel that the temporary wardship order from which the appellant sought to appeal had ceased to have effect on August 1, 1973. Counsel for the respondent, at the request of the Court, subsequently provided the Court with copies of a successive series of temporary wardship orders which had been made following that from which the appeal had been made initially. It appears from these that the appellant had been represented by counsel on the applications leading to these orders on two, but not all occasions.

In view of the fact that the question raised on the appeal to this Court seriously affects the position of the father of an illegitimate child not only in relation to hearings relating to temporary wardship, but in relation to every hearing under Part 2 of the Act, including hearings concerning permanent wardship, it would appear proper and desirable to deal with the appeal on the merits, notwithstanding the fact that the original temporary wardship order has ceased to have effect.

It is the contention of the appellant that the word “parent” in s. 19(1) should be given its ordinary meaning and that, given such meaning, the father of a child, whether the child be legitimate or illegitimate, is a parent of such child.

The respondent, in addition to relying upon the reasons of the Appellate Division, invited us to follow the view stated by Denning L.J. (as he then was) in Re M., An Infant[2]. The question in issue in that case was as to whether the consent of the father of an illegitimate child was necessary before the child could be adopted. Section 2(4) of the Adoption Act, 1950, provided that an adoption order should not be made except with the consent of every person or body who is a parent or guard-

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ian of the infant or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant. The father was not a guardian or liable to contribute to the infant’s maintenance.

The Court of Appeal held that the father was not a parent within the meaning of that section. Denning L.J., at p. 487, said:

I must say that if the word “parent” is to be read in its ordinary meaning, I should have thought that the natural father was a parent just as much as the natural mother is: but I do not think that it is to be so read in this Act.

In my opinion the word “parent” in an Act of Parliament does not include the father of an illegitimate child unless the context otherwise requires. This is implied in the decision in Butler v. Gregory, (1902), 18 T.L.R. 370, with which I agree. The reason is that the law of England has from time immemorial looked upon a bastard as the child of nobody, that is to say, as the child of no known body except its mother. The father is too uncertain a figure for the law to take any cognizance of him except that it will make him pay for the child’s maintenance if it can find out who he is. The law recognizes no rights in him in regard to the child: whereas the mother has several rights.

The issue which arose in that case would not arise in Alberta because the equivalent section of The Child Welfare Act (s. 54(1)) provides that:

Except as otherwise provided in this section, an order of adoption shall not be made without the consent of the guardians of the child.

The exception referred to relates to cases in which the judge may dispense with the consent. Section 39 of The Domestic Relations Act, R.S.A. 1970, c. 113, provides as follows:

39. Unless otherwise ordered by the Court the father and mother of an infant are the joint guardians of their infant, and the mother of an illegitimate infant is the sole guardian of the illegitimate infant.

With respect, I would not agree with the statement of Denning L.J., as applied to Canadian statutes, that the word “parent” in an Act of Parliament does not include the father of an illegitimate child unless the context otherwise

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requires. I agree with the view expressed by McDermid J.A., speaking for the majority of the Appellate Division of the Supreme Court of Alberta in White v. Barrett[3], with reference to the use of the word “parent” in The Family Court Act, R.S.A. 1970, c. 133, s. 10, that, prima facie, the word should be given its ordinary meaning unless, in the context of the statute, the restricted meaning should be given.

McDermid J.A. referred to the statement of the English rule by Viscount Simonds in Galloway v. Galloway[4], at p. 310, that it is “a cardinal rule applicable to all written instruments, wills, deeds or Acts of Parliament that ‘child’ prima facie means lawful child and ‘parent’ lawful parent”. He then went on to refer to a number of Canadian cases, including the decision of this Court in Re Duffell: Martin v. Duffell[5], and reached the conclusion stated above.

In Children’s Aid Society of Metropolitan Toronto v. Lyttle[6], this Court had to consider the legal position of the father of an illegitimate child to whom no notice had been given of an application by the Society to have the child made a ward of the Crown. The child had been registered in the father’s name. The mother had left him about two years after the child’s birth and had gone to live with another man. The father had supported the child during cohabitation with the mother. She refused support after her departure. She had turned the child over to the Children’s Aid Society without his knowledge. It was held that he was entitled to notice of the Society’s wardship application. However, the case differs from the present case in that the word “parent” in The Child Welfare Act, 1965 (Ont.), c. 14, was defined as follows:

“parent” means a person who is under a legal duty to provide for a child, or a guardian or a person standing in loco parentis to a child other than a person appointed for the purpose under this Act;

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It was held that the father, in that case, was under a legal duty to provide for the child, a duty which he said he had always been willing and able to discharge.

Section 24(4) of the Ontario Act, on which the father relied, provided as follows:

(4) The judge shall not proceed to hear or dispose of the matter until he is satisfied that the parent or other person having the actual custody of the child and the municipality in which the child was taken into protective care have had reasonable notice of the hearing or that every reasonable effort has been made in the opinion of the judge to cause them to be notified.

The Lyttle case is of assistance in the present case in that it was held that notice to one parent would not eliminate the necessity of giving notice to the other. Laskin J. (as he then was), who delivered the reasons of the majority in that case, said:

I cannot accept a construction of s. 24(4) that would spell compliance by notification to one parent, or to a non-parent in whose custody the child happens to be, when both parents are known or are probably alive but they may be living apart or are divorced without renunciation of claims to custody of their child.

This passage was relied upon by the Appellate Division in the present case as authority for holding “that the disjunctive ‘or’ in this case does not disentitle both parents as well as a guardian of notice of the hearing if a child has two parents and a guardian as may be the case in some circumstances”.

In the present case the mother was not notified of the hearing, but the judge dispensed with the necessity of serving notice upon her. In my opinion the appellant, in this case, was entitled to notice if he was a “parent” within the meaning of s. 19(1).

The Appellate Division was of the opinion that in revising the Act in 1966 (1966 (Alta.), c. 13), by changing the definition of the word “parent” and by enacting the provisions of ss. 28(2) and 30(3), the Legislature had manifested an intention to restrict the meaning of the word “parent” so as

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to preclude its application to the father of an illegitimate child.

In my opinion the proper starting point in determining the meaning of the word “parent” in s. 19(1) is to consider the meaning of the word “child” as used in Part 2 of the Act. That word is defined in s. 14(a) as meaning a “boy or girl actually or apparently under eighteen years of age”. Part 2 of the Act is entitled “Neglected and Dependent Children”. It makes provision for the care and custody of neglected children. It is clear to me that its provisions are intended to apply to all children, and, if there were any doubt on this matter, it is removed by the reference to “a child born out of wedlock” in ss. 28(2) and 30(3), the application of which will be discussed later in these reasons. Therefore, when the Act refers to a parent in relation to an illegitimate child, it must refer to the father and to the mother of that child.

The definition of the word “parent” in s. 14(f) is not restrictive. That paragraph states that: “‘parent’ includes a step-parent”. The only effect of this provision is to add to the ordinary meaning of the word “parent” a step-parent as well. Prior to the revision of the Act in 1966, it was provided that “‘parent’ includes a step-parent, guardian and every person who is by law or in fact liable to maintain a child”. The change made in 1966 did not restrict the ordinary meaning of the word “parent”. It only restricted the extended meaning of the word.

The 1966 revision also altered the definition of the word “guardian”. The earlier definition was:

“guardian” in addition to the natural parent or parents and the legally appointed guardian of the child, includes the Superintendent when the child has been committed permanently to his care and custody as a ward of the Government.

After the revision the definition is:

“guardian” means a person who under Part 7 of The Domestic Relations Act is or is appointed as the

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guardian of a child or with respect to a ward of the Crown means the Director.

It is now necessary to consider ss. 28(2) and 30(3) of the Act on which the Appellate Division placed reliance in deciding that the word “parent” in s. 19(1) should have a restricted meaning. Sections 28 and 30 of the Act provide as follows:

28. (1) No adjudication or order made under this Part with respect to a child shall be quashed or set aside because of any informality or irregularity when it appears that the disposition of the case was in the best interests of the child.

(2) Where a child born out of wedlock is made a permanent ward of the Crown under section 26, subsection (2) and subsequently the parents of the child intermarry, the permanent wardship order shall be deemed to have been given with the consent of the father of the child.

30. (1) Where a parent, by instrument of surrender acceptable to the Director, surrenders custody of a child to the Director for the purposes of adoption, the parent is not thereafter entitled, contrary to the terms of the instrument, to the custody of or the control or authority over or any right to interfere with the child.

(2) A surrender of custody of a child by an instrument as mentioned in subsection (1) given by a parent who is under twenty-one years of age is as valid and binding as if the parent had attained the age of twenty-one.

(3) Where the custody of a child born out of wedlock is surrendered to the Director by an instrument as mentioned in subsection (1) and subsequently the parents of the child intermarry, then for the purposes of this Act the instrument of surrender shall be deemed to have been executed by both parents and both parents are equally bound thereby.

(4) Where the custody of a child is surrendered to the Director by an instrument as mentioned in subsection (1), the child becomes a permanent ward of the Crown.

Section 26(2), to which reference is made in s. 28(2), gives power to the Court to “commit the child permanently to the custody of the Director as a permanent ward of the Crown”. This power is not dependent upon consent, but can only be exercised after a hearing.

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I will deal first with s. 30(3). In my opinion the reason for this provision is the existence of s. 2 of The Legitimacy Act, R.S.A. 1970, c. 205, which provides:

2. (1) Where before or after the coming into force of this section and after the birth of a person his parents have inter-married or inter-marry, he is legitimate from birth for all purposes of the law of the Province.

(2) Nothing in subsection (1) affects an interest in property that has vested in a person before the intermarriage of the parents or the first day of July, 1927.

(3) Subsection (1) does not apply where, before the inter-marriage of his parents, an order of adoption is made in respect of the person.

As previously pointed out, the consent of the guardians is required for the adoption of a child, but, in the case of an illegitimate child, the sole guardian is the mother. Without the existence of s. 30(3), if the mother of an illegitimate child consented to its adoption and adoption proceedings had been commenced, but before the adoption order was made, the parents of the child were married, the father would be able to contend that, as the child was legitimate from birth, his consent to the adoption would be required.

I do not consider the existence of s. 30(3) as necessitating the inference that, as a parent of the child, it was not intended that he be given notice of proceedings to make the child a ward of the Crown.

With respect to s. 28(2), the Appellate Division expressed the view that this subsection assumes that the father of an illegitimate child was not entitled to the same notice as the mother in respect of the hearing of an application to make the child a permanent ward of the Crown. The reasoning apparently is that if the father had been entitled to notice of the hearing and had been given such notice there would have been no need to enact s. 28(2) to provide that he should be deemed to have given consent to the order if he married the mother of the child subsequent to the order being made.

I do not think that it can be said that the enactment of s. 28(2) assumes that the father had

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not been entitled to notice of the hearing. In my view the purpose of the subsection was to preclude the father, after the permanent wardship order had been made, from asserting his right as a guardian of the child, jointly with the mother, which, although the marriage took place after the order, retroactively dated back to the birth of the child. His status, on an application for permanent wardship, would be different, as father of a legitimate child and therefore its guardian, from his status as father of an illegitimate child and not its guardian. The fact that s. 28(2) would prevent him from asserting that superior status, as a result of a subsequent marriage, does not necessarily imply that, as father of an illegitimate child, he was not entitled to any notice of a hearing to make it a permanent ward of the Crown.

In the result, I do not consider the enactment of ss. 28(2) and 30(3) as requiring that a special meaning, other than its ordinary meaning, be given to the word “parent” in s. 19(1). The Legislature, in s. 14(f), did not purport to limit that ordinary meaning in any way. It did not define the word, but only stated that it should include a step-parent. We are, therefore, dealing with the word “parent” in relation to a series of provisions dealing with neglected and dependent children, and which apply to illegitimate children as well as to legitimate children. In my opinion when the Act, in s. 19(1), refers to the parent of an illegitimate child it refers to the father as well as to the mother of that child.

The learned judge of the Supreme Court who heard the appellant’s appeal from the temporary wardship order was concerned with the administrative problems of effecting service upon the father which would result from this conclusion. Those difficulties were, in my opinion, completely answered in the reasons of the Appellate Division, pointing to the very broad discretion given to a judge hearing an application under Part 2 to order service ex juris, service by double registered mail, or any other form of substituted service, and even

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to dispense with service before or at the time of hearing.

In my opinion the appeal should be allowed and the judgments of the Supreme Court and of the Appellate Division should be set aside. The temporary wardship order from which the appeal was taken should be declared to be a nullity. The appellant is entitled to his costs in this Court as well as the costs of his appeals to the Supreme Court and to the Appellate Division.

Appeal allowed with costs.

Solicitors for the appellant: Vallance, Vallance, Dunphy, Landerkin & Foster, Calgary.

Solicitors for the respondent: McLeod & Ferner, Calgary.