Case Conference Endorsement
COURT FILE NO. FO-23-890-00
DATE: February 25, 2025
ONTARIO COURT OF JUSTICE
B E T W E E N:
M.R. (“Mother”)
Simone Moses, for the APPLICANT
APPLICANT
and –
M.W. (“Putative Father”)
Emma Compeau, for the RESPONDENT
RESPONDENTand –
M.W. (“Twin Brother”)
Dilshad Tavawalla (Duty Counsel), for the RESPONDENT
RESPONDENT
HEARD: February 25, 2025
JUSTICE J. HARRIS
[1] A case conference was held today.
[2] A critical issue between the parties is the paternity of the Child, which issue appears to prevent the parties from negotiating a resolution of the other issues between them.
[3] The Mother brought an application against the putative father (“Putative Father”), who filed an Answer and Claim by Respondent that seeks certain relief from the Mother and adds, to the proceeding, his identical twin brother (“Twin Brother”).
[4] All parties admit that the Mother and the Putative Father had a sexual relationship within a couple weeks of the Mother and the Twin Brother having a sexual relationship. The Mother maintains that she knows the identity of the Child’s father based on the timing of the sexual relationship, her menstrual cycle, and the timing of the pregnancy.
[5] Prior paternity tests were conducted that determined that each of the Putative Father and Twin Brother is the Child’s father with 99.99% certainty. However, complexity lies in the fact that the Putative Father and Twin Brother are identical twins and the understanding that only one of them is the Child’s biological father.
[6] The Putative Father’s legal counsel advised this court that a specialized paternity test is required to determine paternity of the Child as between the Putative Father and the Twin Brother. The cost of such a specialized test could be between $25,000 and $30,000, or could be less expensive, or possibly at no cost, if a test provider were interested in providing the test in view of the novel circumstances. No actual quotations or estimates from any test providers have been produced.
[7] However, the Putative Father is seeking an order that, if the test will cost $30,000, the cost should be shared in equal parts among the Mother, the Putative Father, and the Twin Brother.
[8] Despite the Mother being in receipt of Ontario Works, Putative Father takes the position that the Mother can pay for her proportion of the specialized paternity test from the proceeds she received from a personal injury settlement that the Putative Father alleges she received. Putative Father’s counsel repeatedly requested that the court make an order for disclosure of the settlement proceeds in order to assess the Mother’s ability to pay for the test.
[9] The Mother agrees that specialized paternity testing might be necessary but denies having the ability to contribute financially to such an expensive test. The Mother is willing to cooperate with any testing and to make the Child available as needed.
[10] The Putative Father also seeks a timetable for the Twin Brother to serve and file an Answer. The Twin Brother is seeking to have the issue of paternity determined, as a preliminary issue, prior to his filing an Answer, and is seeking additional time to retain legal counsel. He was assisted by duty counsel today.
[11] The Twin Brother is willing to cooperate with any paternity testing, but he denies the ability to pay for costly paternity testing.
The Limitations on the Jurisdiction of the Ontario Court of Justice
[12] The Ontario Court of Justice is a statutory court. It must derive its jurisdiction from a statutory source. It has no parens patriae jurisdiction.
[13] On January 1, 2017, the All Families Are Equal Act came into force in Ontario, Canada. This legislation amended several legislative provisions governing parentage including the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended (“CLRA”), to establish new rules related to parentage.
[14] The All Families Are Equal Act redefined the provisions of the CLRA with respect to parentage. The amended provisions are found in sections 1 to 17.
[15] Under subsection 1(1) of the CLRA “court” is defined as:
“court” means the Family Court or the Superior Court of Justice.
[16] Subsection 21.1(1) of the Courts of Justice Act, R.S.O. 1990, c C.43, states:
“There shall be a branch of the Superior Court of Justice known as the Family Court in English and Cour de la famille in French.”
[17] The Ontario Court of Justice is not included in the definition of “court” under subsection 1(1) of the CLRA, and therefore is not a court that can determine a Child’s parentage.
[18] Also contained within Part 1 of the CLRA is the court’s authority to order paternity tests pursuant to subsection 17.2(1) of the CLRA which states as follows:
Blood, DNA tests
17.2 (1) On the application of a party in a proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain a blood test, DNA test or any other test the court considers appropriate of a person named in the order granting leave, and to submit the results in evidence. 2016, c. 23, s. 1 (1).
[19] Prior to January 1, 2017, and the enactment of the All Families Are Equal Act, subsection 10(1) of the CLRA stated:
Leave for blood tests and DNA tests
10. (1) On the application of a party in a civil proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence. 2006, c. 19, Sched. B, s. 4.
[20] Also prior to the enactment of the All Families Are Equal Act, the definition of “court” only applied to subsections 4 to 7 of the CLRA, as follows:
Court under ss. 4 to 7
3. The court having jurisdiction for the purposes of sections 4 to 7 is,
(a) the Family Court, in the areas where it has jurisdiction under subsection 21.1(4) of the Courts of Justice Act;
(b) the Superior Court of Justice, in the rest of Ontario. 1996, c. 25, s. 3 (1); 2001, c. 9, Sched. B, s. 4 (7).
[21] As a result, pursuant to subsection 10(1) of the CLRA, the Ontario Court of Justice had the authority to order paternity tests: Catholic Children’s Aid Society of Toronto v. N.S., 2015 ONCJ 388.
[22] Additionally, the Ontario Court of Justice has no jurisdiction to make declaratory orders in respect of parentage of a child: A.J. v. M.P., 2023 ONCJ 218, at para 33.
[23] Moreover, the Putative Father is seeking damages from the Mother for pain and suffering and intentional infliction of emotional harm, which is tort relief that can be granted only in the Superior Court of Justice.
[24] It is trite law that parties cannot confer jurisdiction on a court that it does not have: Lowry v. Steinforth, 2018 ONCJ 744, at para 46.
[25] In J.N. v Durham Regional Police Service, 2012 ONCA 428, at para 25, the Court of Appeal for Ontario held that no matter how compelling the argument may be, a court cannot exceed its jurisdiction:
The law has long been clear, however, that jurisdiction is fundamental to a court or tribunal’s authority to deal with a matter. Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered.
[26] This court discussed with the parties that the Ontario Court of Justice is likely not the appropriate court in respect of the positions of, and relief sought by, the Putative Father and, as a result, consideration should be given to transferring this matter to the Superior Court of Justice.
Next Steps
[27] Given the potential lack of jurisdiction on what seems to be the most critical issue in this case, this court declined to make any further orders or involve the Twin Brother at this time in a proceeding that may not continue in the Ontario Court of Justice. Instead, this court assisted the parties with one final opportunity to determine whether paternity of the Child can be determined through specialized paternity testing, on consent, without a court order.
[28] The matter is adjourned To Be Spoken To on June 3, 2025, at 11 a.m., which is a date that can be vacated if this court is advised that the parties consent to a transfer of the matter to the Superior Court of Justice. If the date is not vacated, each of the Mother, Putative Father, and Twin Brother shall file Form 17F Confirmation of Conference prior to the next appearance in accordance with the Family Law Rules, O. Reg. 114/99, to update this court.
Released: February 25, 2025
Justice J. Harris