ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 17412/11
Date: 2012/08/02

BETWEEN:

RENE DEBLOIS Applicant – and – NICOLE LAVIGNE Respondent

Lucia Mendonca, for the Applicant
Michelle Flowerday, for the Respondent

Heard: July 6, 2012

Karam, J.

REASONS FOR JUDGMENT

[ 1 ] This is a motion brought for interim access to the child Tyler Dominic Conner Lavigne, born October 1, 2010, by his biological father Rene DeBlois, the applicant herein. In addition, other motions have been brought by both parties for additional relief, which I will refer to in due course.

[ 2 ] The respondent mother, Nicole Lavigne, who gave birth to the child, resists the request for access. The parties have never resided together and the child was conceived through artificial insemination. Prior to the conception of the child, the parties, apparently without the benefit of legal advice, entered into a written agreement, described as a “Donor Agreement”, pursuant to which the applicant agreed to relinquish his paternity rights. The agreement, which was executed by the parties, is dated October 1, 2008.

[ 3 ] The applicant has never been provided with access to the child. Both parties reside in the Town of Cochrane, so that no issue exists as to cost, distance or inconvenience. There was no evidence offered that either of the parties might be incapable of parenting.

[ 4 ] At the hearing of the motion, the parties consented to a trial date of October 22, 2012, at Cochrane, and agreed that all procedural necessities in preparation for trial, including questioning and a case management hearing, scheduled for October 11, 2012, would be completed in a timely manner, so as not to delay the hearing of this matter. To that end, I will remain available to deal with any pre-trial issues which may arise in the interim.

[ 5 ] Although there remains less than four months until the scheduled date for trial, this application was commenced January 28, 2011, 17 months ago, when the child was less than three months old. Therefore, if I deny this motion for interim relief, by the time of trial, the applicant will have been denied access for at least 21 months after starting this proceeding, through no fault of his own.

[ 6 ] To this point in the action, as I understand it, the matter has been through a case conference, an adjournment and a change of counsel by the respondent. Aside from the adjournment, requested by the respondent to retain new counsel, the delays appear to have been systemic.

[ 7 ] The Court’s concern, in accordance with s. 24(2) of the Children’s Law Reform Act , R.S.O. 1990, c. C.12, on a motion of this nature, must be for the best interests of the child. For that purpose, I have considered the various factors enumerated in that subsection, including the biological relationship between the child and the parties, as per s. 24(2) (h).

[ 8 ] I have little doubt, based upon the material before me that the child is presently being ably cared for by his mother and his mother’s partner, who have resided together in a long-term lesbian marriage. On the other hand, as indicated earlier, there is no evidence before me to suggest that the applicant is incapable of performing a parenting role. In fact, despite the previously referred to “Donor Agreement”, in which he appears to have abandoned his paternity rights, one must presume that the respondent selected the applicant, rather than an anonymous donor, because of his positive qualities.

[ 9 ] Sections 20(1) and 20(4) of the Children’s Law Reform Act have been said to establish, “if not a presumption in favour of contact with both parents, at least an obligation to explain why it is not in the best interest of a child that it occur”: see R.W. v. R.L., [2006]O.J.No.176 at para.11. To that end, there are no significant parenting faults alleged. In fact, the applicant appears to be anxious to pursue a relationship with his son, which certainly suggests a strong interest in parenting.

[ 10 ] While it appears to be widely accepted by the Courts that it is important for children to maintain relationships with their biological parents, it has been stated judicially that this is simply one factor to be considered: see e.g. Law v. Siu , 2009 ONCA 61 , [2009] O.J. No. 245.

[ 11 ] On the other hand, it is trite law that where possible, on an interim motion such as this one, the status quo should be maintained pending trial. This rule is of course subject to the best interests of the child, which may dictate a deviation. The evidence discloses that the child is presently happy and being well cared for.

[ 12 ] To that end, the child, who will not be two years of age until October 1, 2012, has never been introduced to his father. It was argued that by introducing the applicant into the child’s life now, and should the respondent ultimately be successful on this application, the child may become confused and insecure. Despite the child’s young age, it is impossible to know what disclosure of the applicant’s status as his parent might mean. All circumstances considered, the risk of there being an adverse affect to the child is too great to ignore. I considered imposing limitations on the extent of the disclosure to the child, but attempting to enforce such limitations would be virtually impossible. In addition, it was also argued that by making an access order at this stage, I may indirectly influence the outcome of these proceedings. In light of the fact that the trial should take place very shortly, I find both of these arguments very convincing.

[ 13 ] Accordingly, I am satisfied that in this case, the usual rule maintaining the status quo pending trial should be adhered to, in the best interests of the child. Although seventeen months has already expired through no fault of the applicant, once we consider the age of the child, the possibility of the negative consequences referred to above, and the relativity short period remaining until the trial, there does not appear to exist adequate reason to disrupt the status quo . After trial, there will be sufficient opportunity for the applicant to develop a relationship with the child, should he be successful.

[ 14 ] Counsel for the respondent requested an additional order setting aside an earlier order made at the case conference in this matter, which essentially declared the “Donor Agreement” void. I do not find it necessary to do so at this time. The conclusions reached at the case conference are certainly not relevant to my decision on this motion, particularly in view of the affidavit evidence of previous counsel for the respondent.

[ 15 ] As I understood them, the parties are in agreement as to the various other orders which counsel for the respondent is seeking. In addition, counsel for the applicant sought an order for an investigation and a report by the O.C.L. I agree with counsel for the respondent that on the facts before me, and the issues before the court, such an investigation would be of little value.

[ 16 ] This motion is therefore dismissed, with costs to be spoken to. The record will be endorsed accordingly. If the terms of any order dealing with a procedural matter, as well as the matter of the costs of this motion cannot be agreed upon, such issues may be dealt with by conference call returnable on three days’ notice.

The Honourable Mr. Justice Norman M. Karam

Released: August 2, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RENE DEBLOIS Applicant – and – NICOLE LAVIGNE Respondent REASONS FOR Order The Honourable Mr. Justice Norman M. Karam

Released: August 2, 2012