COURT FILE AND PARTIES

COURT FILE NO.: F1952/11
DATE: February 7, 2012
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: Marcie Roxanne Carroll, applicant

No named respondent

BEFORE: MITROW J.

COUNSEL: In chambers – no one appearing

ENDORSEMENT

ISSUE

[ 1 ] This matter comes before me in chambers as an ex parte motion by the applicant mother seeking an order dispensing with service of the application for custody on the child’s biological father. In the title of the proceeding, the applicant has shown the respondent as “unknown.”

[ 2 ] There is jurisprudence where this court, in circumstances where the biological father was unknown, was invited to make a declaration of custody but declined to do so.

[ 3 ] It is appropriate to examine the procedure to be followed in a case where an applicant seeks a custody order pursuant to the Children's Law Reform Act , R.S.O. 1990, c. C. 12 (the “ Act ”) in situations where the identity of the biological father is unknown and an order is sought dispensing with service.

[ 4 ] The applicant commenced an application pursuant to the Act issued December 14, 2011, where the only claim is a claim for custody of her son Dovin Philip Carroll, born November 8, 2008 (“the child”).

[ 5 ] Concurrent with the issuance of the application, the applicant filed an ex parte motion with a brief supporting affidavit seeking an order dispensing with service.

[ 6 ] The affidavit establishes that the applicant is the child’s mother and she has been the child’s caregiver since birth. The applicant deposes she does not know who the biological father is, that the child was born as a result of a brief encounter with the biological father and that the applicant has not seen him since. She further deposes that she does not remember what he looks like, nor his last name, nor does the deponent know where the father resides, despite making some attempts to locate him.

DISCUSSION

[ 7 ] In A.N.F. v. M.A.G. , 1996 12089 (ON SC) , [1996] O.J. No. 2702, 10 O.T.C. 241, 23 R.F.L. (4th) 210, 64 A.C.W.S. (3d) 982 (Ont. Ct. Gen. Div.), G.A. Campbell J. was faced with a situation where the applicant mother had brought an application for custody, support and costs against a named male respondent who denied paternity. After court ordered DNA and blood tests, the applicant conceded the likelihood of paternity was very low and consequently, on consent, the court dismissed the application against the named respondent.

[ 8 ] The applicant’s counsel then sought a declaratory order for custody of the child pursuant to the Act but the court declined to make a declaratory order and dismissed the application.

[ 9 ] Paragraphs 2 to 10 inclusive of the reasons are reproduced below:

2. Counsel for the applicant then sought a declaratory order for "custody" of the named child, pursuant to section 21 of the Children's Law Reform Act , R.S.O. 1990, c. C-12. He argued that such an order is an order in rem and necessary so that the applicant could exercise her "incidents of custody", as allowed within section 21 of the Children's Law Reform Act .

3. Subsection 62(3) of the Children’s Law Reform Act mandates that:

The parties to an application ... shall include,

(a) the mother and the father of the child;

(b) a person who has demonstrated a settled intention to treat the child as a child of his or her family;

(c) a person who had the actual care and upbringing of the child immediately before the application; and

(d) any other person whose presence as a party is necessary to determine the matters in issue.

4. Counsel asks the court to exercise its discretion to declare that no other party (presumably the real biological father) needs to be “present” to determine the issue of custody.

5. I agree with Judge David M. Steinberg (as he then was) who, in the case of Re Cowles (1981), 1981 1834 (ON SC) , 32 O.R. (2d) 114, 21 R.F.L. (2d) 337 (Ont. U.F.C.), agreed with the logic of Provincial Judge James T. Robson who found, in Crockett. v. Tracey (1979), 1 F.L.R.R. 124 (Ont. Prov. Ct., Fam. Div.), that:

an order for custody ... is an order in personam as between the parties.

6. The vesting of custodial rights in a surviving parent, ipso jure (that is, by operation of law) is an old concept. In early days in England when common law decisions were definitive and a father was given exclusive "guardianship" over his children, the mother was allowed to acquire those rights upon the father's death. (See 1 Bl. Comm. 461 – Commentaries on the Laws of England of Sir William Blackstone, 1769). No court order was ever necessary and the common law right of guardianship by nature and nurture could be enforced by the great common law writ of habeas corpus .

7. It is my understanding that the power of a court to issue a declaratory judgment has always been governed by certain principles, one of which obviously includes the inherent right of a court to exercise its discretion to grant such an order; Canadian Union of Postal Workers v. Attorney General for Canada (1978), 1978 2091 (FC) , 93 D.L.R. (3d) 148, 13 C.P.C. 124 (Fed. Ct.).

8. This court concludes that, pursuant to subsection 20(1) of the Children's Law Reform Act , the applicant is "entitled to custody of the child" and that, pursuant to subsection (2):

as a person entitled to custody of a child, has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child.

9. Accordingly, the fact that the applicant already is entitled to an undisputed and enforceable right (either by operation of the common law or by virtue of the statute) is sufficient to persuade the court not to exercise its discretion to issue an order for a right and a responsibility that already exists, in law.

10. Accordingly, the application is dismissed without costs.

[ 10 ] The case of A.N.F. v. M.A.G. must be viewed in the narrow context of the applicant’s specific request for a declaratory order for custody. It is unclear on the facts of that case why the applicant did not choose to proceed pursuant to s. 62(5) of the Children's Law Reform Act which provides as follows:

Where there is no presumption of paternity and the identity of the father is not known or is not reasonably capable of being ascertained, the court may order substituted service or may dispense with service of documents upon the father in the proceeding.

[ 11 ] The decision of Steinberg U.F.C.J. in Re Cowles (1981), 1981 1834 (ON SC) , 32 O.R. (2d) 114 (Ont. U.F.C.), was referred to in A.N.F. v. M.A.G. as authority for the proposition that an order for custody is an order in personam between the parties. Re Cowles involved an unusual situation where, pursuant to a decree nisi , custody of a child was granted to the mother, who subsequently died. The child then remained in the de facto custody of the applicant father. The mother had not provided a testamentary guardian for the child. In Re Cowles , it was noted that the Official Guardian was quite supportive of the father’s claim for custody. The court framed the issue as follows:

The only issue to be decided is whether in the absence of a contest over the custody of the child, the Court has jurisdiction to hear this action. The action was brought both as an application to vary the decree nisi , and as well for an order of custody under the Infants Act , R.S.O. 1970, c. 222.

[ 12 ] In the Cowles case, the court in fact did exercise its discretion to grant a declaratory order. The analysis by the court in that case, appearing on p. 2, is reproduced below:

By law upon the death of the mother the sole legal custody of Jennifer vested in the applicant without the necessity of an order of a Court. Notwithstanding that, however, does the applicant have the right to apply to this Court to confirm his status as the sole custodial parent? Although s. 2(2) [rep. & sub. 1978, c. 2, s. 80(1)] of the Infants Act provides for an application to the Court in the event of a parental dispute over custody, s-s. (1) of s. 1 also seems to permit an application for a custodial determination, without the necessity for a pre-existing dispute, so as to clarify the status of a child. It provides:

1(1) The court, upon the application of the father or the mother of an infant, who may apply without a next friend, may make such order as the court sees fit regarding the custody of the infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary or discharge the order on the application of either parent, or, after the death of either parent, of any guardian appointed under this Act , and in every case may make such order respecting the costs of the mother and the liability of the father for such costs, or otherwise, as the court considers just.

A declaratory order as to the right of custody of a child may be appropriate, especially in cases such as this where a custodial parent has died, and the other parent wishes to assume the responsibility for the child with the full knowledge and confidence as to what his rights and duties are.

Section 7(1) of the Unified Family Court Act , 1976 (Ont.), c. 85, provides:

7(1) In all proceedings in which jurisdiction may be exercised in the Court, the Court has the same powers and duties as the Supreme Court to conduct its proceedings, grant remedies and enforce its judgments, orders and other process.

That section would necessarily incorporate s. 18, para. 2 of the Judicature Act , R.S.O. 1970, c. 228, into the practice and procedure of this Court:

2. No action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right, whether or not any consequential relief is or could be claimed.

Bearing in mind the above and as well s. 4(3) of the Unified Family Court Act , 1976 which vests in this Court the powers of parens patriae , it is my view that I have the jurisdiction in this case to make the following declaratory order:

It is ordered and declared that the applicant Ronald Frederick Cowles is the sole guardian of the child Jennifer Elisha Cowles and is entitled to the sole custody, control and education of her.

[ 13 ] Although the court in Re Cowles was dealing with a situation where a custodial parent had died, the court did comment on the importance of the surviving parent having an order for custody, so the parent would have “full knowledge and confidence” as to his rights and duties.

[ 14 ] In the present case, there could be many situations where the applicant may wish to have the comfort and security of a custody order. This can arise in circumstances such as registering the child for school, obtaining a passport for the child, registering the child in extra-curricular activities, obtaining various other government issued identification for the child and satisfying government, school or healthcare authorities that she has the sole right to make decisions affecting the child. This is not an exhaustive list.

[ 15 ] In a proceeding under the Children's Law Reform Act , whether an applicant seeks custody in a defended or undefended proceeding or in circumstances where the respondent father is unknown, the Act provides in s. 21 for a custody or access order to be made. Accordingly, there is no need to resort to a declaratory order, including a situation where the identity of the father is unknown as this is expressly governed by s. 62(5) of the Act .

[ 16 ] There is nothing in the Children's Law Reform Act that requires a custody application to be a contest between two parents. In fact, s. 62(5) contemplates that a custody order may be made without a contest between two parents. This principle was stated by the Ontario Court of Appeal in H.(J.) v. A.(F.) , 2009 CarswellOnt 85, 2009 ONCA 17 , [2009] W.D.F.L. 822, [W.D.F.L.] 861, 77 Imm. L.R. (3d) 123, 306 D.L.R. (4th) 496, 265 O.A.C. 200. In that case, the Court of Appeal was dealing with a situation where the Ontario Court of Justice had made an order awarding custody of the two children to the mother and further ordering that, as an incident of custody, neither child was to be removed from the Province of Ontario pending further order of the court. That order was made just prior to the mother receiving a direction to report for deportation. The issue before the Court of Appeal was the appropriateness of the non-removal order as a means to frustrate a deportation order.

[ 17 ] Relevant to the issue in the present case, the Court of Appeal noted that the custody order was obtained in an undefended hearing, and that there was no family law dispute with respect to incidents of custody between the parents. There was a different father for each child. One child’s father had not participated in the proceedings at all and the other had no desire for custody. In a footnote appended to its decision, the Court of Appeal stated as follows:

FN1 Nothing in the CLRA restricts custody applications to a “custody contest between the parties” or a contest over “competing parenting plans”. Indeed, the CLRA contemplates that custody orders may be made absent a contest between the parents. Section 62(5) contemplates custody orders where the identity of the father is not known or capable of being ascertained. Moreover, family courts routinely make custody orders for collateral purposes such as school registration or passport application if it is in the best interest of the children to do so . [my emphasis]

[ 18 ] In circumstances where the identity of a father is not known or is not reasonably capable of being ascertained and an order is sought either for substituted service or to dispense with service upon the father, s. 62(5) also requires a further condition to be met, namely that there is “no presumption of paternity.”

[ 19 ] This brings into play the presumptions of paternity set out in s. 8 of the Children's Law Reform Act . Accordingly, the affidavit evidence must satisfy the court that none of the presumptions set out in s. 8 are present. For convenience, the provisions of s. 8(1) are set out below:

8(1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:

1. The person is married to the mother of the child at the time of the birth of the child.

2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.

3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.

4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.

5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.

6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

[ 20 ] In relation to paternity, it is important to note that pursuant to s. 12 of the Act , a person may file a statutory declaration affirming that he or she is the father or mother, as the case may be, of a child and that s. 13 provides the process for obtaining a certified copy of a statutory declaration filed under s. 12 .

[ 21 ] Subsection 8(1) paragraph 6 refers to presumption of paternity where the person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child. Section 14 of the Act provides a process for Ontario courts to furnish to the Registrar General each order or judgment that confirms or makes a finding of parentage and also provides a process for a person to obtain a certified copy from the Registrar General of any such order or judgment.

[ 22 ] For convenience, sections 12 to 14 inclusive of the Children's Law Reform Act are reproduced below:

Statutory declaration of parentage

12.(1) A person may file in the office of the Registrar General a statutory declaration, in the form provided by the Ministry of the Attorney General, affirming that he or she is the father or mother, as the case may be, of a child.

Idem

(2) Two persons may file in the office of the Registrar General a statutory declaration, in the form provided by the Ministry of the Attorney General, jointly affirming that they are the father and mother of a child.

Copies of statutory declarations under Vital Statistics Act

13. Upon application and upon payment of the fee prescribed under the Vital Statistics Act , any person who has an interest, furnishes substantially accurate particulars and satisfies the Registrar General as to the reason for requiring it may obtain from the Registrar General a certified copy of a statutory declaration filed under section 12 .

Filing of court decisions respecting parentage

14.(1) Every registrar or clerk of a court in Ontario shall furnish the Registrar General with a statement in the form provided by the Ministry of the Attorney General respecting each order or judgment of the court that confirms or makes a finding of parentage.

[ 23 ] A minor procedural issue remains as to the proper title of proceedings where the identity of the father is unknown.

[ 24 ] Given that s. 62(5) contemplates an application where the identity of the respondent father is unknown, the logical inference is that the name of the respondent in the title of the proceedings can be left blank. Another alternative is to state “no named respondent” or words to like effect.

[ 25 ] By analogy in matters governed by the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, a practice has developed where, for example, a statement of claim may be issued naming a defendant as “Jane Doe” or “John Doe” where the identity of the defendant is not known and with the statement of claim to be amended later when the defendant’s identity is ascertained. This procedure could arise in situations where it is necessary to issue a statement of claim immediately to preserve a limitation period.

[ 26 ] While technically this procedure could be considered in family law proceedings by showing the unknown father as “John Doe,” it would seem best to avoid this procedure except in circumstances where there is a reasonable prospect that the applicant will later be able to ascertain the identity of the father. Otherwise, the use of “John Doe” may serve only to create questions and confusion whenever the applicant would need to use or rely on the custody order.

ORDER

[ 27 ] In the present case, the applicant’s affidavit is insufficient to grant the order requested because the applicant has not addressed all the presumptions of paternity set out in s. 8 of the Act . The applicant should file a supplementary affidavit.

[ 28 ] For the foregoing reasons, I make the following order:

1. The applicant’s ex parte motion is adjourned sine die until such time as the applicant files a supplementary affidavit confirming clearly that there is no presumption of paternity.

2. The title of this application is amended to state “no named respondent” under the heading respondent.

3. Upon filing of the supplementary affidavit, this matter shall be placed before me for final disposition on the motion.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: February 7, 2012