DATE: 20010316

DOCKET: C35141

COURT OF APPEAL FOR ONTARIO

RE: LUANNE GAINES (Plaintiff/Appellant) v. DOUGLAS FRANKLIN (Defendant/Respondent)

BEFORE: FINLAYSON, LABROSSE & MacPHERSON JJ.A.

COUNSEL: Jennifer Dietrich Suzor, for the appellant Jean Leslie Marentette, for the respondent

HEARD: March 12, 2001

On appeal from the order of Justice Steven Rogin dated September 7, 2000

O R A L E N D O R S E M E N T

[1] The appellant appeals the order of the motions judge striking out her statement of claim as disclosing no reasonable cause of action. The appellant was seeking a declaration that the respondent’s deceased son was the biological father of her adult son. She sought paternity testing from the respondent.

[2] It is acknowledged that the appellant’s son had attained the age of eighteen years prior to the commencement of these proceedings and there is no allegation made that he is mentally incompetent or under legal disability. It is also acknowledged that the presumption of paternity in s. 8(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “Act”) does not apply in this case.

[3] No fact was shown to support the proposition that the Act has a gap that requires the court’s intervention by invoking the doctrine of parens patriae. The Act does not deal with grandparents at all. The suggestion that it should goes beyond “novel”.

[4] In the circumstances, the motions judge was correct in concluding that in light of s. 5(2) of the Act which expressly prohibits an application under s. 5(1) unless both the persons whose relationship is sought to be established are living, the court’s parens patriae jurisdiction could not be invoked to override or contradict the clear language of the legislation.

[5] The appeal is therefore dismissed with costs.

(signed) “G. D. Finlayson J.A.”

(signed) “J. M. Labrosse J.A.”

(signed) “J. C. MacPherson J.A.”