Simone Moses

This case conference endorsement addresses a dispute over the paternity of a child where the putative father and his identical twin brother are both alleged fathers with 99.99% certainty from prior paternity tests.

The Ontario Court of Justice considered the jurisdictional limits under the amended Children's Law Reform Act and the All Families Are Equal Act, concluding that the Ontario Court of Justice lacks jurisdiction to determine parentage or grant tort damages related to the case.

The court declined to make further orders and suggested transferring the matter to the Superior Court of Justice.

The court also discussed the high cost of specialized paternity testing required to distinguish between identical twins and the issue of cost-sharing among the parties.

The parties brought motions regarding parenting time for their two children.

The applicant father sought equal parenting time, while the respondent mother sought primary residence, alleging a history of emotional and verbal abuse.

A key issue was the admissibility of a surreptitious audio recording of the applicant berating the respondent.

The court admitted the recording, finding its probative value regarding the applicant's conduct and credibility outweighed the policy against secret recordings.

The court ordered that the children reside primarily with the respondent, with specified parenting time for the applicant, finding that equal parenting time was not in the children's best interests due to the applicant's anger and denigration of the respondent's family.

The applicant wife sought temporary exclusive possession of the matrimonial home, registered in the husband's sole name, after the husband was removed due to criminal charges and the husband's mother created a toxic living environment.

The husband's mother, a co-respondent, sought to vacate the exclusive possession order, claiming a beneficial interest and possessory rights to the home.

The court found the wife's evidence credible regarding the untenable living conditions and the children's distress.

The court determined that the husband's mother had no statutory right to possession under the Family Law Act and failed to establish a prima facie case for a constructive or resulting trust interest that would grant her possessory rights.

Considering the best interests of the children and the wife's lack of alternative accommodation, the court granted the wife temporary exclusive possession of the matrimonial home.