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Old 01-24-2006, 10:51 AM
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A case comes to mind

Good news to have a Dad

Johnson-Steeves v. Lee

The fact situation in Johnson-Steeves v. Lee is unusual, to say the least. But the decision is loud and clear - and is good news for fathers who want to be involved in the lives of their children.

Madam Justice C. L. Kenny, of the Court of Queen's Bench of Alberta, released written reasons on May 27th, 1997, which held that access is the child's right and that a mother and father both "form an integral part of each child's life whether or not they reside with their children." That decision has been upheld on appeal to the Alberta Court of Appeal which rendered a decision on November 7th, 1997.

BACKGROUND

Ms. Johnson-Steeves, the mother, told the court she made a deal with Dr. King Tak Lee, a long time friend, for them to have intercourse so he could father a child for her and contribute financially towards its care. He was to leave all decisions regarding the health and welfare of the child to her but would be able to visit with the child when he was in town. The nature and extent of the visitation wasn't discussed at the time. (Dr. Lee is a medical doctor in Toronto and lives in the Toronto area and Ms. Johnson-Steeves lives in Calgary.) The two had met in 1981 when Dr. Lee was practicing medicine and Ms. Johnson-Steeves was attending nursing school. They became friends but were out of contact from 1985 until Ms. Johnson-Steeves called him late in 1991. They agreed he would stop by and visit with her and her 2 children in March, 1992, on his way to a vacation in Whistler, B.C. They later agreed that Dr. Lee would join Ms. Johnson-Steeves and her parents for a few days in Las Vegas before going on to Whistler.

While in Las Vegas Ms. Johnson-Steeves proposed to Dr. Lee that he contribute frozen sperm to her so she could conceive a third child She said she had felt like a failure because she had not been able to have natural births with her first two children and had long and difficult pregnancies. She attributed this to the size of her husband (6'3"), from whom she was then separated and involved with a very acrimonious divorce and custody battle. She wanted another child to prove to herself that she could "do it right". She denied at trial that she wanted another child so she could remain on social assistance for another two years, as would be the case if she was pregnant.

THE DEAL

According to the judgement Ms. Johnson-Steeves gave these reasons why she chose Dr. Lee as the person with whom to conceive a child:

He was of a much smaller stature than her husband with "small hands and feet" which would increase her chances of carrying a smaller child and would allow for an easier delivery. As well, he was also academically extremely bright.


He "fit the financial mould" she wanted as she didn't want this child to be part of the welfare system but wanted financial assistance to support the child and she knew Dr. Lee had the means to supply it. To be sure she had enquired about his income.


She wanted the child to be of mixed heritage as this wold be "a nice way to bring the world together." (She is part Caucasian and part Jamaican and he is of Chinese heritage.)

Ms Johnson-Steeves had rejected using a sperm bank (because it cost $500 an attempt and she didn't have the money) and adoption (because that wouldn't allow her to carry and deliver the child as she wanted). As well, in both of these cases she would be solely financially responsible for the child. She wanted Dr. Lee to freeze some sperm and send it to her so she could impregnate herself, but Dr. Lee pointed out it wasn't as easy as that and she would need medical intervention.

Eventually they agreed that he would father a child and be a financial provider. Further he agreed he would not interfere in the health and welfare issues of the child as she wanted to raise the child her way and didn't want interference on issues such as schooling, breast feeding and immunization. It was understood that Dr. Lee would see the child from time to time and a bargain was struck. They shook hands on the deal and had intercourse several times and sometime in late April or early June she called him to tell him she was pregnant. Dr. Lee visited Ms. Johnson-Steeves for a week in April, before the news, and again in June and July. In late August or early September he took her for a week to Hawaii and he visited again in December, 1992. They talked on the telephone and her gave her various cheques totaling over $3,000 before the child was born to help her out financially.

On January 26th, 1993, Nigel Johnson-Steeves was born and a blank was put beside the place of the father's name on the birth certificate. She sent Dr. Lee a picture and he visited her and the child in February, 1993. At that time he entered into a maintenance agreement with Ms. Johnson-Steeves under the Parentage and Maintenance Act, R.S.A. 1990, c. P-0.7, acknowledging that he was the father and agreeing to pay support for him in the sum of $300 per month - the amount agreed upon in Las Vegas. She also expected additional funds from him and he provided $3,000 over the next several months.

THE PROBLEM

Dr. Lee visited again in August and November, 1993. After that he called to arrange for visits but Ms. Johnson-Steeves said no. Eventually she told him to call back in June, 1994, by which time she felt the acrimonious proceedings with her husband would be finished and she would be able to deal with this matter. He says she was upset because the money he was paying to the maintenance enforcement department (apart from the $3,000 he gave directly to her) was being deducted from her social assistance and she wasn't getting it in addition to those payments. She says she was having trouble getting money from him and that she told him he couldn't see Nigel if he didn't give her the money she wanted. According to Ms. Johnson-Steeves, he had broken the agreement for financial assistance and therefore couldn't visit with Nigel.

THE PROCEEDINGS

Ms. Johnson-Steeves then commenced proceedings seeking permanent custody of Nigel, an order that Dr. Lee be denied access to him and an order for child support. Dr. Lee had no problem continuing to pay support and left it to the court to determine the correct amount but he opposed the claim for no access on the grounds that it is in the best interests of Nigel that there be access.

Ms. Johnson-Steeves told the court that she feels Nigel has a family with her and her two other children, that visits with Dr. Lee would break up that family and that Nigel has the extended family and role models she has chosen for him. She argued that Dr. Lee could add nothing to Nigel's life and that visits with him would be disruptive. She didn't want Nigel moved back and forth between parents and she worried that she would lose control over him and be unable to protect him if Dr. Lee were granted access rights.

As well, Ms. Johnson-Steeves put forward many complaints against Dr. Lee which the court found to be either unsubstantiated or not significant. In the words of the trial judgement:

The difficulty is that Ms. Johnson-Steeves wants complete control over all aspects of [Nigel's] life and if someone disagrees with her she considers that they are simply trying to make her life difficult. She appears to take no responsibility for any of the difficulties in her life.

In Ms. Johnson-Steeves terms, Dr. Lee was merely a sperm donor. She put forward the view that there was a distinction to me made between a biological father and a social father such that only social fathers - ones involved in the family unit - should have access rights. In summary, Ms. Johnson-Steeves felt that she had the right to define what her family was to consist of, how was to be in or out of it and what relationship her children were to have with anyone other than herself. She even raised a Charter argument, unsuccessfully, that she was being deprived of her right to liberty if the court granted access.

The court held that Dr. Lee was both the biological father and a parent under the legislation and gave no weight to the biological/social father argument. On appeal the Alberta Court of Appeal upheld the trial decision. The appeal decision is discussed.

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