Last updated: October 18, 2012
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Back in the days before DNA tests, the Alberta Supreme Court, Appellate Division, in Re Patterson (1957), 8 D.L.R. (2d) 772, 117 C.C.C. 342, made child support orders against two men, even though only one of the three judges deciding the case said he favoured that result. The other two judges agreed with one another that only one of the two defendants could have been the child's father, and thus responsible for support. They disagreed, however, as to which.
Theresa Mary Patterson was the child's mother. Upon her complaint, Alex Jette and William Hostyn were summoned as possible fathers, under the Child Welfare Act, S.A. 1944, c. 8, s. 112. According to s. 116(2) (LLMC), a judge was allowed to make an order against more than one possible father, "upon such evidence as in his discretion [was] deemed sufficient, the evidence of the mother being corroborated in some material particular ...".
At trial, McIsaac D.C.J. declared Hostyn to be the father and directed him to pay $1200 to the Child Welfare Commission. He dismissed the summons against Jette. Hostyn appealed. The Department of Child Welfare also appealed from the dismissal of the complaint against Jette.
Hostyn's appeal was dismissed by a two to one majority. Clinton J. Ford J.A. said the evidence against Hostyn could reasonably be held to support the finding of the trial judge. Porter J.A. agreed that there was evidence to support the finding against Hostyn.
Johnson J.A. disagreed. Patterson had became pregnant in October. Jette admitted that he had had intercourse with Patterson in October. Hostyn had made no such admission. Patterson's evidence as to Hostyn, which the trial judge had not believed, was that she could not remember whether or not she had intercourse with him in September and October. A witness had testified that Hostyn visited Patterson in October, but that, according to Johnson J.A., was not evidence of intercourse.
Porter J.A. agreed with Johnson J.A. that there was evidence upon which Jette could have been found liable. The Department's appeal was allowed.
The result was that Hostyn and Jette were each ordered to pay support, even though only Porter J.A. reasoned that both should do so. It is not clear from the report whether the total support thus awarded was $2,400, or only $1,200.
w07t1_1_ratio Copyright © 2012 John N. Davis