According to court documents, appellant David Reykdal was living a double life and deceiving both his wife, Diane, to whom he had been married for almost 30 years, and Gwen Mitchell, a woman with whom he had had a 17-year relationship. Diane was unaware of his relationship with Mitchell, who believed that Reykdal was separated from his wife. When Mitchell and Reykdal ended their relationship in 2017 she brought a claim against him for support under Alberta’s Adult Interdependent Relationships Act (AIRA), which covers relationships which fall outside traditional marriage.
Under the AIRA, a married person cannot become an adult interdependent partner while living with their spouse. At trial, Justice Anna Loparco concluded that Reykdal had not been living with his wife and therefore Mitchell was his partner (Mitchell v. Reykdal 2021 ABQB 301).
But the Alberta Court of Appeal overturned that decision, ruling that Justice Loparco extended the reach of the Act by bringing in a comparative analysis of who Reykdal was living with which it does not support (Mitchell v. Reykdal 2022 ABCA 105, issued March 21).
“If the defendant is living with his spouse, it is not relevant whether he is living with her more or less than the other person in his double life. It is clear the appellant was ‘living with’ both Gwen and Diane at the same time,” the court wrote. “The trial judge’s finding … that the respondent commenced living with Gwen from the moment he met her reflects palpable and overriding error. Further, the suggestion that the appellant stopped living with Diane, even though they maintained a household and raised three children for 30 years, cannot be supported on the record.”
The unanimous three-judge panel of the court, which consisted of Justices Frans Slatter, Michelle Crighton and Jo’Anne Strekaf, wrote that Reykdal “deceived two women in the most selfish and intimate way for many years” and it is easy to have sympathy for them, but the AIRA does not provide a remedy.
“This finding implies that if Gwen and Diane’s roles were reversed (i.e. Gwen was married to the appellant), Diane could not claim to be an interdependent partner because she had not been ‘living with’ the appellant for three years. The appellant had interdependent relationships with two women at the same time,” the court wrote. “[The Act] provides that in such a situation, in law no adult interdependent relationship with Gwen could exist.”
Reykdal’s counsel, Tina Huizinga of Huizinga Di Toppa Coles & Layton, said the issue raised in the case was one of strict statutory interpretation and the AIRA doesn’t allow for someone in a polyamorous relationship to be an adult interdependent partner.
“You can have one partner, but not two,” she said. “So, is there a gap in the legislation in terms of dealing with things like that? Sure, but that is up to the legislature to address — it is not for courts to find a way to work around legislation.”
Anthea Law of Vogel LLP said the court’s decision was not surprising given the restrictions set out in the legislation.
“Relationships can evolve and progress much quicker than legislation can be updated and enacted,” she said. “If changes in legislation are to be reflective of changes in people’s lives and relationships, as it has been with the enactment of the AIRA in 2003 and the recognition of adult interdependent relationships, then it may be worth examining situations such as those set out in this case where a person may have multiple adult interdependent relationships at one time.”
Christine Silverberg, Silverberg Legal
“I think that it is important to point out that sometimes laws don’t necessarily reflect the many circumstances that people live in their lives. If the laws need changing, and there is a need to update legislation to correlate with existing social mores, then I think it is important that that work be done,” she said. “But that cannot be done without a significant amount of consultation and debate about how people form and sustain relationships, because no doubt there are people who do not agree that a person should have such a co-existing relationship.”
And Huizinga said some of the language in the AIRA “could have been drafted in a clearer way.”
“I’ve talked to all kinds of people who have been with somebody for three or four years but have maintained separate residences and finances, but everybody knows they are in a relationship, and they are not seeing anyone else,” she said. “So, does that give rise to claims when they haven’t done any of those things that people think would normally be indicative of common law couples, such as living together and sharing expenses?”
Counsel for Mitchell did not respond to a request for comment.
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