BARRIE

COURT FILE NO.: FC-13-423-00

DATE: 20140627

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dylon Griggs, Applicant

AND:

Jade Cummins, Respondent

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL:
Dylan Griggs, Self-represented

H. Goodman, Counsel for the Respondent

HEARD: June 19, 2014

ENDORSEMENT

[1] There are two motions before me: first in time is the motion by Dylan Griggs requesting a blood test for the purpose of determining the paternity of Brooklynn Audry Anne Cummins, born September 27, 2011; there is a cross-motion by Jade Cummins, the mother of the child, supported by her parents and younger brother (by way of providing affidavit evidence), requesting dismissal of Dylan Griggs’ motion, or in the alternative, an order requiring disclosure of his high school record, both grades and behavioural, his criminal record (both youth and adult), if necessary an order granting leave to apply to the youth justice court for access to the applicant’s youth criminal record, and adjournment of the applicant’s motion until full disclosure is made.

[2] I have reviewed all of the material and the submissions made by counsel. From the authorities, the operative jurisdiction and principles that I am acting on are the discretion under ss.4 and 10, and s.24 where the best interests of the child are defined, all being part of the Children’s Law Reform Act, R.S.O. c. C.12 :

4. (1) Any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child. R.S.O. 1990, c. C.12, s. 4 (1).

5. (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.

(2) The court may impose conditions, as it thinks proper, on an order under subsection (1). 2006, c. 19, Sched. B, s. 4.

(3) The Health Care Consent Act, 1996 applies to the blood test or DNA test as if it were treatment under that Act. 2006, c. 19, Sched. B, s. 4.

(4) If a person named in an order under subsection (1) refuses to submit to the blood test or DNA test, the court may draw such inferences as it thinks appropriate. 2006, c. 19, Sched. B, s. 4.

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[3] The cases decided under these provisions clarify the principles as to how this kind of dispute is to be approached. It should be noted that ss. 4 and 10 are in Part II Establishment of Parentage. The section defining the best interests of the child is in Part III Custody, Access and Guardianship. The relevant purpose of Part III and the provisions within it is set out in the Act, s.19, as being:

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children.

[4] The general principle from the case authorities under these provisions is best summed up in F.R. v. A.K.A., [2010] O.J. No. 2873 (OCJ), citing Judge J.P. Nevins in Fazekas v. Saranovich (1991), 1991 8317 (ON SC), 83 D.L.R. (4th) 717 (Ont. Prov. Div.):

…I am of the opinion that the principle to be applied in exercising the discretion under section 10 should be that a request for leave to obtain blood (or DNA) tests should be granted unless:

it can be shown that the actual process of conducting the …tests might prejudicially affect the health of the child, or

the actual request for leave to obtain the blood test is made in bad faith.

[5] In this case, the affidavit material filed by the respondent mother or on her behalf indicates the strong dislike that they have for the applicant and the reasons for it. I have no material from the applicant disputing it other than the submission of Ms. Patterson-Kelly that much of it indicates the actions of an immature boy who is now 20 years of age. What the evidence amounts to is an attack on the character of the applicant with examples of his rebellious and impulsive behaviour such as his and his family’s “angry and disruptive” reaction at the hospital when he was told the respondent did not want him present to the extent that security had to escort them out (Hospital record, 9:50 a.m., when Brooklynn was born, Ex. 1, Blakey aff.); and a record of his text messages from early 2013 where he used offensive language and texted like a rapper using language in the drug trade (J. Cummins aff., Ex.2). It also includes a description by the respondent of her abusive relationship at the hands of the applicant during which she continued to see him. There is an admission that their relationship was at one point sexual, indicating the applicant could well be the father but also there is an allegation that she had another relationship. There is also evidence from the respondent of the applicant’s reaction when hearing of her pregnancy and again when he was told he could be liable for retroactive child support: the first, he wanted the pregnancy ended, as did his mother; and as to the second, he is alleged to have said “I’ll have to think about that.”

[6] While this is certainly character evidence that could go to the applicant’s access application and whether he should have any access at all or if so, how it should be controlled or supervised, the child does not know him but she is entitled to know in time, as are the parties, who the father of this child is. The issues concerning his access to the child raise the full panoply of considerations regarding the best interests of the child and whether he should have any contact at all with this child will be dealt with if necessary in due course. For now, I do not see evidence of this application being brought in bad faith. He is maintaining it now knowing of his potential liability for child support. His application that the respondent should pay for the paternity testing is typical of the one-sided view the evidence to date gives of Mr. Griggs’ reactive and impulsive behaviour whereby he wants others to look after the consequences of his own choices and behaviour, as was Ms. Lankin’s account of his angry reaction directed at her when confronted by the respondent’s counsel’s request for his authorizations to obtain his school and criminal records. (Lankin aff., para. 4). He never did provide them.

[7] In sum, it is in the best interests of the child to have some certainty as to who her father is and it is also in society’s interest to ascertain who are the primary persons responsible for this child’s support. I find there to be no evidence of bad faith in bringing the application for paternity testing nor that testing would affect the child’s health. In those circumstances, the applicant’s motion for testing will be allowed but he will pay for the testing.

[8] In addition, if the testing returns a positive result, the applicant shall provide the following disclosure to the respondent’s counsel within 30 days of the date of a positive paternity testing. It is ordered that:

(i) the respondent mother Jade Cummins, the child and the putative father Dylan Griggs shall undergo DNA testing by qualified personnel within 30 days of this order to assist in determining the paternity of the child, the cost to be prepaid by Dylan Griggs;

(ii) if the testing is positive in favour of paternity in Dylan Griggs, within a further 30 days of the parties being given notice of the result, the applicant Griggs will provide the following disclosure:

• provide to the respondent mother’s counsel and to the Court his high school record covering his grades and his behavioural record including any disciplinary decisions regarding him;

• provide to the respondent’s counsel and to the Court his complete youth and adult criminal record; and

• if a judicial authorization is required to obtain his youth record, leave is granted to apply to a youth justice court for access to the said record.

(iii) the motion by the applicant to determine paternity and for access and the mother’s motion opposing access being granted are adjourned to August 7, 2014 at 9:30 a.m.

[9] I would appreciate the respondent’s counsel assisting in any way they can, if Mr. Griggs requests such assistance and acts properly, i.e. politely, by suggesting a lab or clinic that is qualified to do the DNA testing and analysis.

[10] Costs are left to the discretion of the judge hearing this matter on August 7, 2014 by which time hopefully the result will be known.

HOWDEN J.

Date: June 27, 2014