M.R.R. v. J.M.

[Indexed as: R. (M.R.) v. M. (J.)]

Ontario Reports

Ontario Superior Court of Justice,

Fryer J.

April 28, 2017

137 O.R. (3d) 605 | 2017 ONSC 2655

Case Summary

Family law — Children — Parent — Respondent donating sperm to applicant through sexual intercourse — Parties agreeing that respondent would not be child's legal parent but agreement only reduced to writing after child's birth — Respondent not automatically excluded under s. 7(4) of amended Children's Law Reform Act from definition of parent in s. 7(1) as s. 7(4) requires pre-conception written agreement — Declaration of non-parentage under s. 13 of Children's Law Reform Act available despite failure to meet criteria under s. 7(4) — Pre-conception intent important consideration under s. 13 — Court not required to consider best interests of child when making declaration under s. 13 — Respondent granted declaration of non-parentage — Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 7(1), 7(4), 13. [page606]

The applicant wanted a child. When her attempts to conceive through artificial insemination failed, she enlisted the help of her friend, the respondent. The respondent donated his sperm to the applicant through sexual intercourse. The parties agreed that the respondent would not be the child's legal parent. After the child was born, the applicant arranged for a contract to be drafted by her lawyer that confirmed the oral pre-conception agreement. Both parties signed the contract. The applicant subsequently brought an application for child support. The respondent brought a motion for a declaration that he was not the child's legal parent.

Held, the motion should be granted; the application should be dismissed.

The respondent was not excluded under s. 7(4) of the amended Children's Law Reform Act ("CLRA") from the definition of parent in s. 7(1) of the CLRA as s. 7(4) applies only where there is a pre-conception written agreement. A declaration of non-parentage was available under s. 13 of the CLRA despite the failure to meet the criteria in s. 7(4). Pre-conception intent should be given significant weight under s. 13 of the CLRA. While there may be circumstances in which the best interests of the child would be a factor in making a declaration under s. 13, the court is not required to look to the child's best interests in the traditional sense in every case when making a declaration of parentage. In light of the parties' pre-conception agreement, the respondent was entitled to a declaration that he was not the child's parent.

The title of proceedings should be amended to use initials to identify the parties and the child.

A. (A.) v. B. (B.) (2007), 83 O.R. (3d) 561, [2007] O.J. No. 2, 2007 ONCA 2, 278 D.L.R. (4th) 519, 220 O.A.C. 115, 150 C.R.R. (2d) 110, 35 R.F.L. (6th) 1, EYB 2007-112046; B. (C.L.) v. B. (J.) (2009), 97 O.R. (3d) 544, [2009] O.J. No. 2693, 50 E.T.R. (3d) 50, 81 C.P.C. (6th) 107, 2009 33033, 179 A.C.W.S. (3d) 234 (S.C.J.); D. (M.) v. L. (L.) (2008), 90 O.R. (3d) 127, [2008] O.J. No. 907, 52 R.F.L. (6th) 122, 2008 9374, 166 A.C.W.S. (3d) 126 (S.C.J.); Family Law Act (Re), [2016] B.C.J. No. 685, 2016 BCSC 598, 80 R.F.L. (7th) 443, 265 A.C.W.S. (3d) 427; Ferguson v. McKiernan, 940 A.2d 1236, 596 Pa. 78 (Pa. 2007); Grand v. Ontario (Attorney General), [2016] O.J. No. 2764, 2016 ONSC 3434, 2016 CarswellOnt 8390 (S.C.J.); M. (A.W.) v. S. (T.N.), [2014] O.J. No. 5793, 2014 ONSC 5420, 54 R.F.L. (7th) 155, 247 A.C.W.S. (3d) 589 (S.C.J.); R. (J.) v. H. (L), 2002 76705 (ON SC), [2002] O.J. No. 3998, [2002] O.T.C. 764, 117 A.C.W.S. (3d) 276, 2002 CarswellOnt 3445 (S.C.J.); Raft v. Shortt (1986), 54 O.R. (2d) 768, [1986] O.J. No. 492, 2 R.F.L. (3d) 243, 37 A.C.W.S. (2d) 367, 1986 1812 (H.C.J.), consd

Other cases referred to

Foulidis v. Foulidis, [2016] O.J. No. 5592, 2016 ONSC 6732, 86 R.F.L. (7th) 338, 406 D.L.R. (4th) 750, 271 A.C.W.S. (3d) 758 (S.C.J.); Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162; L. (T.D.) v. L. (L.R.), 1994 7577 (ON SC), [1994] O.J. No. 896, 114 D.L.R. (4th) 709, 4 R.F.L. (4th) 103, 47 A.C.W.S. (3d) 751 (Gen. Div.); M. (A.) v. Toronto (City) Police Service (2015), 127 O.R. (3d) 382, [2015] O.J. No. 4707, 2015 ONSC 5684, 341 O.A.C. 10, 257 A.C.W.S. (3d) 836 (Div. Ct.); Martin v. Alberta (Workers' Compensation Board), [2014] 1 S.C.R. 546, [2014] S.C.J. No. 25, 2014 SCC 25, 2014EXP-1095, 2014EXPT-610, 307 C.R.R. (2d) 115, J.E. 2014-589, EYB 2014-235093, 455 N.R. 331, 93 Alta. L.R. (5th) 1, 13 C.C.E.L. (4th) 241, 368 D.L.R. (4th) 667, 569 A.R. 6, 65 Admin. L.R. (4th) 169, [2014] 5 W.W.R. 211; [page607] P. (B.C.) v. P. (A.R.), [2016] O.J. No. 3699, 2016 ONSC 4518, 87 R.F.L. (7th) 219, 268 A.C.W.S. (3d) 367 (S.C.J.); P. (P.) v. D. (D.), [2017] O.J. No. 1030, 2017 ONCA 180, 36 C.C.L.T. (4th) 138, 90 R.F.L. (7th) 1, 2017 CarswellOnt 2850, 409 D.L.R. (4th) 691, 276 A.C.W.S. (3d) 489; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 1998 837, 76 A.C.W.S. (3d) 894, D.T.E. 98T-154; Sayer v. Rollin, 1980 3621 (ON CA), [1980] O.J. No. 613, 16 R.F.L. (2d) 289, 2 A.C.W.S. (2d) 41 (C.A.)

Statutes referred to

All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016 c. 23, s. 76(2)

Child and Family Services Act, R.S.O. 1990, c. C.11, s. 158(2) [as am.]

Children's Law Reform Act, R.S.O. 1990, c. C.12, Part I [as am.], Part II [rep.], ss. 4 [as am.], (1) [as am.], 5 [as am.], 7 [as am.], (1) [as am.], (2) [as am.], (4) [as am.], 8 [as am.], 9 [as am.], (1) [as am.], (3) [as am.], 10 [as am.], (3) [as am.], (8) [as am.], 12 [as am.], 13 [as am.], (1) [as am.], (4)1 [as am.], 2 [as am.], (5) [as am.], 15 [as am.], 17 [as am.], 17.3 [as am.], Part III, 24(2) (h) [as am.], 70 [as am.]

Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 110 (now s. 97 [as am.])

Family Law Act, R.S.O. 1990, c. F.3, ss. 1 [as am.], 33 [as am.], (4) [as am.], 56 [as am.]

Family Law Act, S.B.C. 2011, c. 25, s. 31 [as am.]

Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A [as am.]

Vital Statistics Act, R.S.O. 1990, c. V.4

Rules and regulations referred to

Family Law Rules, O. Reg. 114/99, Rules 16 [as am.], 18

Authorities referred to

Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 2nd Sess., No. 10 (September 29, 2016)

Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 2nd Sess., No. 11 (October 3, 2016)

Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 2nd Sess., No. 36 (November 29, 2016)

Sullivan, Ruth, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016)

MOTION for a declaration of non-parentage.

E. Mazinani, for applicant.

R. Switzer, for respondent.

FRYER J.: —

I. Introduction

[1] This motion is essentially about the answer to one question: Who are the legal parents of the child, J.R.R.? [page608]

[2] The motion raises important, fundamental and novel issues about the definition of "parent" in the current social context, the rights of parties to define a child's family unit, and the departure from the historical legal focus on biology toward an emphasis on the intent to parent.

[3] This motion also requires the court to apply the newly enacted provisions of the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA").

[4] The applicant, M.R.R., is the biological mother of the child, J.R.R., born December 14, 2014.

[5] The respondent, J.M., is J.R.R.'s biological father.

[6] M.R.R. was not in a committed relationship. She very much wanted a child and was content to be the sole parent to that child. She tried to conceive through artificial insemination at a clinic using sperm from anonymous donors several times without success.

[7] J.M. already had three children and did not want more. J.M. and M.R.R. had dated several years earlier and had remained friends after their breakup. J.M. offered to assist M.R.R. by donating his sperm. J.M. states that he should have the same status as a man who donates sperm anonymously to a sperm bank: no parental rights and no parental obligations.

[8] J.M. donated his sperm to M.R.R. through sexual intercourse.

[9] According to J.M., he and M.R.R. had a verbal agreement prior to entering into the "conception project" that if M.R.R. conceived, he would not be the child's legal parent in any sense.

[10] After J.R.R. was born, M.R.R. arranged for a contract to be drafted by her lawyer that purported to confirm the parties' pre-conception agreement that J.M. would not be the child's legal father. Both parties executed the contract.

[11] In his motion, J.M. seeks a declaration that he is not J.R.R.'s legal parent or, in the alternative, that this contract be upheld.

[12] M.R.R.'s position is that although she and J.M. had discussions about him acting as a sperm donor, in reality they resumed a casual but romantic relationship before J.R.R. was conceived. There is nothing to distinguish this case from the many others wherein parties who are not in a committed relationship conceive a child. J.M. acted at all material times as though he was J.R.R.'s father, and therefore there is no reason why J.R.R. should be deprived of child support from J.M.

[13] M.R.R. states that she only initiated the contract because she wanted to stop being harassed by J.M.'s ex-wife, who found out that J.M. had fathered the baby. In any event, according to [page609] M.R.R., there is no binding contract, as she withdrew her offer before J.M. signed it. Lastly, M.R.R.'s position is that even if the contract were otherwise valid, its terms are not enforceable pursuant to ss. 33 and/or 56 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA").

[14] M.R.R. opposes a declaration of non-parentage. In her cross-motion, she seeks an order setting aside the contract or declaring it to be invalid and an order that J.M. is J.R.R.'s father pursuant to s. 1 of the FLA.

II. Brief Factual Background and Timeline

[15] M.R.R. is 41 years old and employed with a major bank as an IT specialist earning approximately $90K year.

[16] J.M. is 43 and self-employed in construction. He has three children aged approximately 14, 11 and eight. His oldest child lives in Europe with her mother. His younger children live locally with their mother, M.

[17] J.M. and M.R.R. met between 2007 and 2008. They were in a relationship until about 2009, when they broke up but remained friends. J.M. has been in a relationship with his current partner since 2009.

[18] M.R.R. wished to have a baby. She was single. In July 2012, M.R.R. made inquiries about her fertility. Later, M.R.R. tried to get pregnant through artificial insemination with sperm from anonymous donors approximately seven times.

[19] M.R.R. shared with J.M. her desire to have a child and her frustration with the artificial insemination process. J.M. initially offered to assist her financially and later by donating his sperm. J.M. and M.R.R. had sexual intercourse a number of times between October 2013 and April 2014.

[20] J.R.R. was conceived in April 2014 and born on December 14, 2014.

[21] After J.R.R. was conceived, the parties' sexual relationship ended and their social relationship petered out. They kept in touch and saw each other on occasion. J.M. inquired from time to time as to M.R.R.'s well-being and the well-being of the unborn child.

[22] As M.R.R.'s due date approached, J.M. made occasional inquiries as to whether or not M.R.R. had had the baby. He was away on vacation in Cuba when J.R.R. was born.

[23] Prior to the application, J.M. had seen J.R.R. only a handful of times for short visits.

[24] J.M. told his sister and his best friend that he had fathered a child with M.R.R. In April 2015, J.M.'s ex-wife learned about J.R.R. She began to "stalk" M.R.R. and the baby. [page610] This led to conflict between the parties and a deterioration of their cordial relationship.

[25] In September 2015, when J.R.R. was about nine months old, M.R.R. arranged to have her lawyer draft the contract. The contract stated that it conformed with the parties' pre-conception intent that J.M. would not be a parent to J.R.R. J.M. delayed signing the contract and before he did, M.R.R. advised that she intended to pursue a claim for child support. J.M. signed the contract on or about November 7, 2015.

[26] M.R.R. commenced this application seeking child support on December 10, 2015.

III. Declaration of Non-Parentage

[27] J.M. seeks a declaration that he is not J.R.R.'s parent.

[28] Between the time that this application was commenced and the time the motions were heard by me, the CLRA was amended to expand the definition of parent and to include provisions for both declarations of parentage and declarations of non-parentage.

1. Importance of parentage

[29] The concept of parentage has wide-ranging social and legal meaning for parent(s) and for the child or children.

[30] The definition of parent and family has been undergoing seismic change in recent decades. Many of the seminal cases in this area involve children born by way of assisted reproduction, including surrogacy, and children of gay and/or lesbian parents. Prior to the amendments to the CLRA, people who fell outside the definition of a "traditional family"¹ and who wanted legal confirmation of their parental status were required to adopt the child or children, or apply to the court for a declaration.

[31] The Court of Appeal in A. (A.) v. B. (B.) (2007), 83 O.R. (3d) 561, [2007] O.J. No. 2, 2007 ONCA 2, at para. 14, summarized the importance of a declaration of parentage from the point of view of both the parent and the child:

the declaration of parentage is a life-long immutable declaration of status;

it allows the parent to fully participate in the child's life; [page611]

-- the declared parent has to consent to any future adoption;

-- the declaration determines lineage;

the declaration ensures that the child will inherit on intestacy;

the declared parent may obtain an OHIP card, a social insurance number, airline tickets and passports for the child;

the child of a Canadian citizen is a Canadian citizen, even if born outside of Canada;

-- the declared parent may register the child in school; and

the declared parent may assert her rights under various laws such as the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A.

2. Law prior to the amended CLRA

[32] An understanding of the case law that pre-dated and led to the recent amendments to the CLRA is useful in analyzing the issues in this case.

[33] Prior to the amendments of the CLRA, there were two sources of declaratory relief with respect to parentage.

[34] Section 4 of the CLRA read that "[a]ny 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".

[35] A judge of the Superior Court or Unified Family Court had the authority to make a declaration under s. 4 of the CLRA and such "a declaration [is] in the nature of a judgment in rem -- to be recognized for all purposes": Sayer v. Rollin, 1980 3621 (ON CA), [1980] O.J. No. 613, 16 R.F.L. (2d) 289 (C.A.), at para. 5. A declaration could also be made under s. 4 of the CLRA "when that determination is a material part of a dispute which is otherwise within the jurisdiction of such other court" such as a determination of custody or access; however, such a declaration would not necessarily be a judgment in rem.

[36] In Raft v. Shortt (1986), 54 O.R. (2d) 768, [1986] O.J. No. 492, 1986 1812 (H.C.J.), Potts J. held that while the CLRA at that time did not provide for declarations of non-parentage, such a declaration could be made pursuant to s. 110 (now s. 97) of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"). [page612]

[37] Section 97 of the CJA states:

97. The Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may make binding declarations of right, whether or not any consequential relief is or could be claimed.

[38] Potts J. held, at paras. 7 and 13 of Raft, that "the right to know whether or not one is the parent of a child is of such significance that it is a declaration of right within the meaning of that section"; "[l]ikewise it is very much in the interest of the child that that question should be answered".

[39] In R. (J.) v. H. (L.), 2002 76705 (ON SC), [2002] O.J. No. 3998, 2002 CarswellOnt 3445 (S.C.J.), Kiteley J. granted a surrogate mother and her husband a declaration of non-parentage pursuant to s. 97 of the CJA. Kiteley J. looked to the terms of the gestational carriage agreement between the biological parents, the surrogate mother and her husband as well as the surrogate mother's evidence that she was not the "mother" of the children. Kiteley J. found, at para. 20, that "[i]n the few relevant cases, there is no suggestion that the aebest interests of the children' ought to be considered in cases where declaratory relief is sought". However, she stated: "I have no hesitation in finding that these declarations are in the best interests of the children. The affidavits describe thoughtful, responsible persons who entered into this arrangement with the sole objective of bringing children into the world who would be well cared for."

[40] In D. (M.) v. L. (L.) (2008), 90 O.R. (3d) 127, [2008] O.J. No. 907, 2008 9374 (S.C.J.), Nelson J. dealt with an application wherein the biological parents of a child born through a surrogacy arrangement sought an order on consent that would direct the Deputy Registrar General to register them as the child's parents among other things; they also sought a declaration that the surrogate mother was not a parent of the child. Although he made no finding with respect to its validity, at para. 12, Nelson J. referred to the terms of the gestational carriage agreement that stated the "applicants are not only the genetic parents of the child, but also the aesocial' parents. [The surrogate mother and her husband] agree to relinquish any parental rights over the child, while the applicants confirm their intention to assume all parental responsibilities."

[41] Nelson J. held, at para. 45: "A declaration of non-paternity is in essence a denial of a legal right. Accordingly, given that the issue of paternity is justiciable (it is not a mere aemoral, social or political matter' to which no legal or equitable rights arise: [page613] [cite omitted]) a declaration of non-paternity may be made by this court" (emphasis in original).

[42] In A. (A.), the Court of Appeal addressed the issue of whether a child could have more than one legal mother or more than one legal father. A.A. and C.C. were a lesbian couple. They wished to have a child and discussed the matter with their gay friend, B.B., who offered to assist. The child referred to in the decision as D.D. was born; her parents by biology were C.C. and B.B. The parties sought a declaration that A.A. as well as C.C. was the child's mother. A.A. did not want to pursue an adoption of D.D. as this would terminate her father B.B.'s status as her parent.

[43] In analyzing the issue, the Court of Appeal noted that there were various provisions of the CLRA in which parentage was not defined solely on the basis of biology and it cited with approval [at para. 32] Ferrier J.'s decision in L. (T.D.) v. L. (L.R.), 1994 7577 (ON SC), [1994] O.J. No. 896, 4 R.F.L. (4th) 103 (Gen. Div.), at para. 18, in which he states: "the declaration made under s. 4(1) is not that the applicant is a child's natural parent, but that he or she is recognized in law to be the father or mother of the child". The Court of Appeal exercised its parens patriae jurisdiction and made the requested declaration.

[44] In M. (A.W.) v. S. (T.N.), [2014] O.J. No. 5793, 2014 ONSC 5420, 54 R.F.L. (7th) 155 (S.C.J.), Henderson J. considered a chambers motion brought on consent of the parties. The applicants were two married men. They had entered into a detailed gestational carriage agreement with T.N.S. The parties had all had psychological counseling and independent legal advice prior to executing the contract. The child was conceived with A.W.M.'s sperm and the egg of an anonymous donor. DNA testing was conducted and as expected statistically ruled out T.N.S. as the mother of the child but confirmed A.W.M. as the biological father. The parties entered into minutes of settlement whereby the applicants waived any claim for child support and the respondent waived any claims to custody or access of the child. The evidence before Henderson J. confirmed that the applicants had been [at para. 16] "the de facto custodial and social parents of the child" since birth. In granting the declaration sought, Henderson J., at para. 24, confirmed that, "[i]n these changing times, court decisions on parentage focus less on the biological connection between child and parent and more on the substance of the relationship".

[45] These decisions spanning 34 years demonstrate the court's efforts to address advances in reproductive science but, perhaps more importantly, changing societal norms. Under the [page614] former CLRA, the definition of "parent", with some exceptions, focused more on who contributed sperm and who contributed ova. The focus in the Vital Statistics Act, R.S.O. 1990, c. V.4 ("VSA") was on who delivered the child. Although biology is still an important factor, the case law demonstrates a shift toward intent. Who intends to act as the child's parent? What did the proposed parents or proposed non-parents intend to be a child's family unit? These cases and others also emphasize the importance to the child in having a clear, legal definition as to his or her family unit.

3. Amended CLRA

[46] On April 8, 2016, an application was commenced challenging the constitutionality of certain provisions of the CLRA and the VSA including those dealing with the definition of parentage. The application was brought on behalf of nine families who had seven children amongst them, with a baby due any day. The "Applicants [had] different family configurations and personal circumstances but all [were] LGBTQ parents or intended parents who [sought] relief which includes a declaration that 12 sections of the [CLRA], and 7 sections of the [VSA] are unconstitutional and of no force and effect": Grand v. Ontario (Attorney General), [2016] O.J. No. 2764, 2016 ONSC 3434, 2016 CarswellOnt 8390 (S.C.J.), at para. 2.

[47] The application was resolved by way of minutes of settlement entered into between the applicants and respondents, the Attorney General for Ontario and the Deputy Registrar for the Province of Ontario on June 22, 2016.

[48] This excerpt from the minutes of settlement in Grand is instructive in understanding the legislative amendments that were later enacted:

3. The Respondent, the Attorney General of Ontario, consents to a declaration that the CLRA violates section 15 of the Canadian Charter of Rights and Freedoms in a manner that cannot be justified in a free and democratic society under section 1 of the Charter to the extent that the legislation does not provide equal recognition and the equal benefit and protection of the law to all children, without regard to their parents' sexual orientation, gender identity, use of assisted reproduction or family composition[.]

[49] The Attorney General of Ontario agreed to introduce a bill with proposed amendments to the CLRA and VSA informed by the following principles:

(a) Ontario law will aim to protect the security of all children, regardless of their parents' sexual orientation, gender identity, use of assisted reproduction or family composition. [page615]

(b) Pre-conception intention to parent will be recognized as a basis of parentage in the context of same-sex relationships and assisted reproduction.

(c) Presumptions of parentage, currently based on biology and relationship with birth parent, will be expanded to include the intention to parent as a factor where assisted conception is used, regardless of the sex/gender of the parents and without precedence to biology.

(d) With the birth parent's acknowledgement, consenting parents will be able to include their particulars on their child's birth registration without delay and expense where a presumption of parentage applies, except in the event of dispute.

(e) A donor of human reproductive material or an embryo should not be declared a parent by reason only of the donation.

(f) In the context of surrogacy, a court-ordered declaration of parentage should be required given heightened vulnerabilities and a history of functional caregiving through the gestation of a fetus.

(g) Parentage will be defined and recognized in such fashion as to acknowledge the possibility of more than two parents. A maximum of four parents will be recognized by administrative process (eligibility to be determined through legislative process) and judicial declarations of parentage will still be available in circumstances of more than four parents, having regard to a child's best interests.

(h) Pre-conception intention to parent will be recognized as a factor in determining best interests within s. 24(2) (h).

(i) The definition of "birth" in the VSA will be changed to be inclusive of trans parents who give birth to a baby, but the term used may not necessarily be "birth parent", the term used will be determined in the legislative drafting, in light of other legislative provisions.

(j) Declarations of parentage will continue to be available on application to the court by interested persons. Parent-child relationships recognized by declarations of parentage will be entitled to the equal protection and benefit of the law as parent-child relationships recognized by adoption order.

(k) Consequential amendments to Ontario legislation will be made to deal with issues such as terminology to give effect to the principles above. [page616]

[50] The minister responsible for introducing Bill 28, All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, 2nd Sess., 41st Leg., Ontario, 2016 (assented to December 5, 2016), S.O. 2016 c. 23 ("Bill 28") and Attorney General for Ontario, Yasir Naqvi, stated that "[t]he best thing for a child is for there to be no uncertainty about who their parents are . . . this bill recognizes that in the year 2016 family structures are diverse and that there is no one way to start a family": Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 2nd Sess., No. 10 (September 29, 2016), at 468 (see Martin v. Alberta (Workers' Compensation Board), [2014] 1 S.C.R. 546, [2014] S.C.J. No. 25, 2014 SCC 25 for the authority to consider this source).

[51] The Ontario legislature consequently passed Bill 28. Subsection 1(1) of the bill repealed Part I and II of the CLRA and introduced the new provisions.

[52] The new provisions came into force on January 1, 2017: Bill 28, s. 76(2). There were no transitional provisions in the bill.

4. Analysis

[53] This matter came before me as a long motion. Although the notices of motion did not refer to summary judgment, both parties sought a final determination of certain issues. The declaration of non-parentage sought by J.M., if granted, resolves the application in its entirety on a final basis.

[54] The parties agreed that the matter would proceed by way of written evidence, namely, the affidavits of the parties including the transcript from the questioning of M.R.R.

[55] Pursuant to Rule 16 of the Family Law Rules, O. Reg. 114/99:

16(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[56] In Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted. The judge must first determine if there is a genuine [page617] issue requiring a trial based on the evidence without using the new fact-finding powers. If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the new fact-finding powers to decide if a trial is required.

[57] The motions in this case were fact driven and there were contentious factual issues. I was required to weigh the evidence, assess the credibility of each party and draw inferences from the evidence. In my view, the documentary record was sufficient for me to reach a fair and just adjudication of the issues in this case without the need of a trial.

(a) Current legislative framework

[58] J.M. submitted that at the time the motions were heard there was a legislative gap due to the finding of unconstitutionality and that I was required to exercise my parens patriae jurisdiction to grant the declaration of non-parentage that he sought. However, pursuant to the minutes of settlement in Grand, the declaration of invalidity had been suspended for nine months and regardless the provisions of the amended CLRA were already in effect when I heard the motions on January 26, 2017.

[59] The amended CLRA provides a comprehensive legislative framework for determining the issues herein.

[60] The sections of the amended CLRA applicable to this case are as follows:

1(1) In this Part,

"assisted reproduction" means a method of conceiving other than by sexual intercourse;

"court" means the Family Court or the Superior Court of Justice;

"insemination by a sperm donor" means an attempt to conceive a child through sexual intercourse in the circumstances described in subsection 7(4);

"reproductive material" means all or any part of a sperm, ovum or other human cell or a human gene;

3. This Part governs the determination of parentage for all purposes of the law of Ontario.

4(1) A person is the child of his or her parents. [page618]

(2) A parent of a child is,

(a) a person who is a parent of the child under sections 6 to 13, except in the case of an adopted child[.]

5. A person who provides reproductive material or an embryo for use in the conception of a child through assisted reproduction is not, and shall not be recognized in law to be, a parent of the child unless he or she is a parent of the child under this Part.

7(1) The person whose sperm resulted in the conception of a child conceived through sexual intercourse is, and shall be recognized in law to be, a parent of the child.

(2) Unless the contrary is proven on a balance of probabilities, there is a presumption in respect of a child conceived through sexual intercourse that a person is, and shall be recognized in law to be, the parent referred to in subsection (1) if any of the following circumstances applies:

1. The person was the birth parent's spouse at the time of the child's birth.

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

3. The person was living in a conjugal relationship with the child's birth parent before the child's birth and the child is born within 300 days after they cease to live in a conjugal relationship.

4. The person has certified the child's birth, as a parent of the child, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.

5. The person has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.

(3) If circumstances exist that give rise to a presumption by more than one person under subsection (2), no presumption shall be made under that subsection.

(4) This section is deemed not to apply to a person whose sperm is used to conceive a child through sexual intercourse if, before the child is conceived, the person and the intended birth parent agree in writing that the person does not intend to be a parent of the child.

(5) A person to whom subsection (4) applies is not, and shall not be recognized in law to be, a parent of a child conceived in the circumstances set out in that subsection.

13(1) At any time after a child is born, any person having an interest may apply to the court for a declaration that a person is or is not a parent of the child. [page619]

(3) If the court finds on the balance of probabilities that a person is or is not a parent of a child, the court may make a declaration to that effect.

15(1) A declaration made under this Part shall be recognized for all purposes.

(2) A declaration made under this Part is deemed to have been effective from the child's birth.

(b) Is J.M. presumptively a parent?

[61] J.R.R. is presumptively J.M.'s child pursuant to s. 4(1) of the amended CLRA.

[62] J.M. characterizes himself as simply a sperm donor; however, as J.R.R. was not conceived through assisted reproduction, J.M. is not automatically excluded as her parent pursuant to s. 5 of the amended CLRA.

[63] J.M. is also deemed to be J.R.R.'s parent pursuant to s. 7(1) of the amended CLRA, as he is someone whose sperm resulted in the conception of J.R.R. through sexual intercourse.

[64] J.M. does not dispute that J.R.R. is biologically his child; therefore, it is not necessary to look to the presumptive factors in s. 7(2) of the amended CLRA, none of which apply in any event: J.M. and M.R.R. were not married, not common-law spouses and not cohabiting; and J.M. is not named on the statement of live birth.

(c) Pre-conception agreement

[65] Section 7(4) of the amended CLRA stipulates that a finding of parentage in s. 7(1) does not to apply to a person whose sperm is used to conceive a child through sexual intercourse if, before the child is conceived, the person and the intended birth parent agree in writing that the person does not intend to be a parent of the child.

[66] J.M. and M.R.R. did not enter into a written agreement prior to J.R.R. being conceived. However, a contract was signed approximately nine months after J.R.R.'s birth purporting to evidence their pre-conception intentions. M.R.R.'s position is that the contract is not binding as she withdrew her "offer" before J.M. signed it.

[67] Assuming, without finding, that this contract is otherwise valid and binding on the parties, does it qualify as a "pre-conception" agreement for the purposes of s. 7(4) of the amended CLRA? [page620]

[68] "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, cited in Rizzo & Rizzo Shoes Ltd. (Re) (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 1998 837, at para. 21.

[69] In Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at p. 59, Ruth Sullivan confirms that "aeordinary meaning' . . . is the meaning that spontaneously comes to the mind of a competent language user upon reading the text. . . . In the absence of a reason to reject it, it should be adopted by the court, because the general public will rely upon the ordinary meaning to inform their behaviour" (emphasis added).

[70] Attorney General Yasir Naqvi confirmed that the purpose of Bill 28 "is to make everyday life easier for Ontarians and to remove unnecessary burdens and costs on our families" and to "update Ontario's parentage laws so parents who have children with the assistance of a known donor won't need to spend money on lawyers": Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 2nd Sess., No. 11 (October 3, 2016), at 529-30; see, also, Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 2nd Sess., No. 36 (November 29, 2016), at 1901.

[71] The amendments to the CLRA proposed by Mr. Naqvi were modelled on legislation enacted in British Columbia and Alberta: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 2nd Sess., No. 11 (October 3, 2016), at 530.

[72] The parentage provisions of the B.C. Family Law Act, S.B.C. 2011, c. 25 are similar to the CLRA. There is no express provision under the B.C. Family Law Act dealing with sperm donation by way of sexual intercourse. However, s. 31 of the B.C. Family Law Act is analogous to s. 13(1) of the CLRA and reads:

31(1) Subject to subsection (5), if there is a dispute or any uncertainty as to whether a person is or is not a parent under this Part, [the court], may make an order declaring whether a person is a child's parent.

(3) To the extent possible, an order under this section must give effect to the rules respecting the determination of parentage set out under this Part. [page621]

[73] In Family Law Act (Re), [2016] B.C.J. No. 685, 2016 BCSC 598, 80 R.F.L. (7th) 443, one of the few decisions applying the new legislation in B.C., Fitzpatrick J. was asked to make a declaration under s. 31 of the Family Law Act on consent of the parties. In Family Law Act (Re), a married heterosexual couple, K.G. and S.G., wished to have a child, but S.G. could not conceive. Their good friend, L.K., offered to assist. L.K. was artificially inseminated with K.G.'s sperm and gave birth to a child. The parties had no written surrogacy agreement. L.K. agreed that K.G. and S.G. were the intended parents of the child, and she renounced any parental rights. The applicants had been raising the child since birth. L.K.'s husband, S.O'H. was not a party to the application. The parties explained that although they did some Internet research, they did not know that a written agreement was required.

[74] Fitzpatrick J. found that based on the evidence, the parties' arrangement met the criteria for a surrogacy agreement under the B.C. Family Law Act but for the fact that the agreement was not made in writing prior to the conception of the child. She stated, at para. 30 of her decision:

In summary, s. 29 of the FLA does not apply in these circumstances. If the Surrogacy Agreement had been in writing, this application would not have been necessary. In that event, the petitioners need only have filed the requisite statutory declarations with the British Columbia Vital Statistics Agency in order to amend the Child's birth certificate[.]

[75] The amended CLRA, like the corresponding legislation in B.C. and Alberta, outlines the criteria for "non-traditional" families to have their family unit legally recognized without complex and expensive legal processes.² However, the legislation emphasizes that in order to avail themselves of the statutory presumptions, the parties' intentions must be set out in writing before a child is conceived.

[76] It is not difficult to appreciate why these two aspects are required, and I agree with the comments of Fitzpatick J., at para. 46 of Family Law Act (Re):

The requirement of a written agreement has the salutary effect of clearly setting out the expectations and intentions of the parties before the conception of a child which, together with a child's birth, is definitely an emotional and life-changing event . . . [these requirements are] intended to provide a clear path for all persons concerned as to what will happen upon the child's birth and what rights will arise on the part of the respective parties. [page622]

[77] It is a joyful but serious undertaking to bring a child into the world. Parties who decide to have a child through assisted reproduction with a known donor, or through surrogacy arrangements must be particularly clear about what parental role, if any, is intended before the child is conceived. Once a child has been conceived, views and intentions can become clouded.

[78] Part I of the amended CLRA requires that parties set out their intentions regarding parentage in writing prior the child being conceived in various circumstances:

(a) Section 9(1) of the amended CLRA defines pre-conception parentage agreements as "a written agreement between two or more parties in which they agree to be, together, the parents of a child yet to be conceived". In s. 9(3) a spouse of a birth parent is not required to be a party to the agreement "if, before the child is conceived, the birth parent's spouse provides written confirmation that he or she does not consent to be a parent of the child and does not withdraw the confirmation".

(b) Section 10 of the amended CLRA requires that surrogacy agreements be made in writing before the child is conceived.

(c) Section 12 of the amended CLRA permits a deceased person to be declared a parent of a child conceived though assisted reproduction after the death of that parent if the deceased person consented in writing to be a parent prior to his or her death.

[79] Where a child is conceived through sexual intercourse, the onus is not on the birth parent to seek a positive declaration of parentage but rather on the party who seeks a declaration of non-parentage. A party who otherwise falls within the definition of parent under s. 4 and s. 7 but has not explicitly reached agreement to the contrary before a child is conceived will be deemed to be a child's parent with all of the associated rights, privileges and obligations.

[80] In the recent case of P. (P.) v. D. (D.), [2017] O.J. No. 1030, 2017 ONCA 180, 2017 CarswellOnt 2850, the appellant father acknowledged that he was the father of the child but sought damages for involuntary parenthood against the respondent mother. The Court of Appeal noted, at para. 45, that "[t]he appellant agreed to have unprotected sex with the respondent and, although he accepted the risk of pregnancy that exists when a sexual partner is taking contraceptive pills, [page623] he was not prepared to accept the risk of pregnancy if the respondent was not taking any contraceptives". Although the appellant father made inquiries of the respondent mother that could have transmitted his intention not to become a parent, there was no explicit agreement between the parties. The Court of Appeal in dismissing the appeal noted that there have been numerous such cases in Canada and abroad. This case highlights and underscores the continued presumption of parentage under ss. 4 and 7 of the CLRA where a child is conceived through sexual intercourse.

[81] The plain reading of the statutory provisions is significant; people who may not have legal expertise and who are entering into parenting arrangements need to be able to clearly understand what is required in order for them to be recognized or not recognized as a parent. This is particularly true where the purpose of the legislation in Ontario is to assist parties in getting legal recognition of their parenting status in as simple and cost effective way as possible.

[82] Simply applying the plain and ordinary meaning of s. 7(4), the agreement between M.R.R. and J.M. fails to qualify, as it was not signed by the parties prior J.R.R. being conceived.

[83] The intention of the legislation and the overall legislative scheme of the amended CLRA point in the same direction. In order for J.M. to be automatically excluded from the definition of parent under s. 7(1) of the amended CLRA, J.M. and M.R.R. would had to have entered into a written agreement prior to J.R.R. being conceived confirming the J.M. would not be deemed the child's parent.

(d) Is a declaration of non-parentage available despite not meeting the criteria under s. 7(4)?

[84] Section 13 of the amended CLRA is a general provision that permits any person having an interest to apply to the court for a declaration that a person is or is not a parent of the child.

[85] Section 13 does not contain any guidance with respect to what factors the court should consider. However, the legislative intention in enacting the amendments to the CLRA, the overall scheme of the Act and the legislative context described above all suggest that pre-conception intent is an important consideration in a declaration made pursuant to s. 13.

[86] Section 13 is analogous to the provisions under the B.C. and Alberta legislation wherein the court can make a declaration of parentage or non-parentage at any time if there is a dispute or any uncertainty as to whether a person is or is not [page624] a parent. Under the legislation in B.C. and Alberta, in making a declaration of parentage or non-parentage, the court must consider the principles of parentage set out elsewhere in that part. Again, the principles of parentage in the Alberta and B.C. legislation emphasize the agreement and intentions of the parties prior to the child's conception.

[87] Fitzpatrick J.'s comments in Family Law Act (Re) with respect to the lack of a written surrogacy agreement are equally applicable to this case [at paras. 43 and 44]:

. . . it strikes me as anomalous that the clearly intended parents, namely the petitioners, and the Child, would be denied this relief simply by reason of a lack of a written surrogacy agreement as contemplated by s. 29(2)(a). Further, I see no reason why the Child, or the family unit, should suffer by reason of the petitioners' unsatisfactory legal research as to the requirements of the FLA in these circumstances.

In addition to protecting the child's best interests, one of the objectives of the FLA is to promote stable family relationships in this evolving era of assisted human reproduction, where many non-traditional types of relationships are no longer unusual. These situations arise in both heterosexual relationships, such as the case here, and also homosexual relationships. They also arise where males and females are challenged by fertility problems and where normal means of conception are not available. In any of these cases, this family stability is not only important for the parents, but also for the child.

(i) What were the parties intentions prior to J.R.R.'s conception?

[88] J.M.'s position is that at all times the parties' intention was that he would be a sperm donor only. He already had three children and had a difficult relationship with the mother of his youngest two children; he did not wish to be a parent to any further children. He would not have offered to assist M.R.R. if he thought he would be expected to be a parent to the child.

[89] M.R.R.'s position was less clear. She appeared to state that the original intention was for J.M. to be a sperm donor but when they started having sex they re-kindled their romantic relationship, and they both changed their mind about his future parental status.

[90] I found J.M.'s evidence taken from his affidavit and the text message exchanges, with some exceptions noted below, reasonably consistent with his position that he did not intend to be parent to J.R.R. From the historical exchanges between the parties, M.R.R. struck me as a forthright and fair person. However, it appears that events that occurred after J.R.R.'s birth led her to change her mind with respect to J.M. and his parental [page625] role. She then attempted to modify or reinterpret history to fit her legal case, and for this reason, I found some of her evidence contradictory and less reliable.

[91] In July 2012, M.R.R. went to the LifeQuest Centre for Reproductive Medicine to determine if she had any fertility issues. She advised the clinic that although she was dating, she was not sure if she wanted to conceive a child with her boyfriend. The evidence does not suggest that J.M. was her boyfriend at that time.

[92] M.R.R. acknowledged that she and J.M. had not been in a committed relationship for several years. They remained friends and kept in touch from time to time. J.M. helped M.R.R. by arranging for repairs and work to her home but M.R.R. repaid J.M. J.M. loaned M.R.R. money for a car and she repaid him.

[93] In or around April 2013, M.R.R. tried artificial insemination through LifeQuest. She selected the anonymous donor primarily for his positive health factors although she acknowledged there was no guarantee that the information provided by the donor was accurate. M.R.R. went through the artificial insemination process five to seven times. Although OHIP covered the procedure, M.R.R. was required to pay for the sperm and other expenses. Each cycle cost her between $500 and $700, and M.R.R. did not have the funds to continue with the process. M.R.R. found the experience somewhat painful and sad.

[94] The sperm donation option that M.R.R. selected permitted the child to know who the donor was and to contact the donor after the child turned 16. M.R.R. would have no right, separate from the child's to know the identity of the donor or to contact the donor. M.R.R. had been advised that it was a good idea for the child to have the option of knowing her biological father.

[95] M.R.R. stopped trying artificial insemination around August 2013.

[96] M.R.R. acknowledged that she spoke to some male friends about her challenges in getting pregnant. A friend, S., offered to donate his sperm but she declined.

[97] J.M. offered to assist M.R.R. in part, because M.R.R. had been very supportive of him when he was going through a difficult time some years earlier. M.R.R. acknowledged that J.M. told her that he did not wish to be a father to another child.

[98] J.M. was not comfortable donating sperm at the clinic and suggested that he and M.R.R. have sexual intercourse instead. [page626] M.R.R. understood that after five unsuccessful attempts, it is hard to get pregnant using artificial insemination. J.M. and M.R.R. had sex regularly. J.M. said that they only had intercourse when she was ovulating. M.R.R. said that they had sex two to three times per week. M.R.R. had her menstrual cycle monitored at the fertility clinic throughout the time the parties were having sex.

[99] At this same time, J.M. was in a relationship with the woman he had been with since 2009; she was not aware of his "conception project" with M.R.R.

[100] M.R.R. became pregnant with J.R.R. around April 2014. After that, their sexual relationship ceased, and their social relationship waned significantly.

[101] J.M. did not participate in any pre-natal care appointments.

[102] Closer to M.R.R.'s due date, J.M. made the odd inquiry as to whether or not she had the baby yet.

[103] J.M. was away on holidays in Cuba when J.R.R. was born on December 14, 2014. M.R.R. advised J.M. of her birth by text message. J.M. responded: "Man!!! She's gorgeous!! So happy for you!!! Can't wait to see her!!! Let me know when u feel better so I can drop by!!!! Xxxxxxxoooooo".

[104] M.R.R. did not put J.M.'s name on the statement of live birth. M.R.R. did not tell people that J.M. was J.R.R.'s father.

[105] J.M. and M.R.R. tried to coordinate a time for him to visit with J.R.R. J.M. had work and other family commitments and did not see J.R.R. until December 25, 2014.

[106] J.M. continued to inquire after J.R.R. He continued to express his love for both M.R.R. and J.R.R. Generally speaking, J.M. respected M.R.R.'s wishes in terms of when he could see J.R.R. J.M. has seen J.R.R. approximately eight times since birth for approximately two hours in total.

[107] The text message exchanges between the parties are also instructive both as to the nature of their relationship and their pre-conception intentions:

September 27, 2014:

M.R.R: "Well we won't have much contact any more if you haven't noticed it yet lol"

J.M.: "I have.. Cause u said for me not to bug u. If it were my way I would be there every step of the day . . ."

M.R.R: "why would I want to bring the people into your life to mine? You have your life and I have mine" [page627]

October 8, 2014:

M.R.R: "[J.M.] just for you to know . . . the main reason I picked you was because I trust you. Main reason!!! So far I have not done anything that we did not agree . . ."

November 12, 2014:

M.R.R.: "Why do you keep sending pictures??? [J.M. was sending her pictures of his family] I am at work. [J.M.] I want to do what is right. . . ."; "I don't want to make my daughter confused or create weird situations or hiding stuff"

J.M. . : "Lol sure hun. . . Don't get too weird on me either. . . Relax"

November 13, 2014:

M.R.R: "[J.M.]. . . I am getting really tired of you saying I OWE you. I don't!!! I am very grateful for what you have done for me but I do not OWE you!!! You agreed me with it before starting having sex with me so why do I owe you???? You changed all the conditions, was here all the time as it pleased you, no discretion at all at the gym . . . All went your way. . . All the time going out like you had no gf. Everytime I reminded you that would all stop when I got pregnant and I had no interested in being in that kind of situation. After pregnant we would have no contact unless you decided to be the dad. So now you are coming up with this bs???. . . You said it is very inconvenient the baby but you are not the father so it should have no difference in your life. And please don't compare [J.R.R.] again with your kids with [M.]. She won't have your name and you are not her dad. . . So let's NOT go there. I am not asking anything just peace. . . You can't have it all with me and [J.R.R.] sorry. It really seems you want to have/create problems :( and I would have a baby with or without you and I told you that!!! I had other options but I felt better with you and I trusted you. So I was going to have a baby period."

January 26, 2015:

M.R.R.: ". . . I am looking after for my daughter's best interest. We did talk about it BEFORE making the baby and you agreed. All her documents doctor, friends, hospital she has no father. I hope to keep it like that to her. I don't want have bigger problems and cause her suffering and comparison to your real kids where you are actually is a dad to them. This was discussed and I was fully aware that you did not want more kids and I am fine with that. Please do your part and I am doing mine. I will not let her go through this rejection/fucked up pain and if she finds out then it will be very ugly and I will be more disappointed than I already am."

J.M.: "She's my daughter. End of story. Don't every say she's not."

June 11, 2015:

[In response to J.M.'s request for some pictures of J.R.R.:]

M.R.R.: ". . . You helped me and I will be forever thankful but that does not make [J.R.R.] your daughter but a friend that donated his sperm to help me have a baby. If she was your daughter you would have visitation rights, pay child support, have your name is her birth certificate and everyone around you would know she exists. Let's leave like that. I am following exactly what WE AGREED . . ." [page628]

J.M.: "I have no problem giving money for her. . . ."

[M.R.R. texted a series of pictures of J.R.R.]

M.R.R.: ". . .You know that unless you change your mind but you didn't want more kids and that is fine. You are not following through what we agreed on. I am keeping my word but you not so much."; "I show you her now last time and you leave us alone?"

J.M.: "Not fighting with u.. Thx for the pic. U know my situation. But I love her and thought u would let me see her here and there."

[108] The evidence on balance supports that the intention of the parties prior to J.R.R. being conceived was that J.M. would be a sperm donor and not a parent. Although M.R.R. said that their intentions changed before conception, the evidence -- particularly hers -- contradicts this. M.R.R. makes repeated reference to the agreement that the parties had before "making the baby" and that agreement was one where J.M. would not be a father to the child in any sense of the word. M.R.R. summarizes the agreement in her text to J.M.: "that does not make [J.R.R.] your daughter but a friend that donated his sperm to help me have a baby."

(ii) Contract

[109] Toward the end of April 2015, M.R.R. heard rumours that J.M. had been telling people that he is J.R.R.'s father; she was upset and denied the rumours. M.R.R. also believed that J.M.'s ex-wife was stalking them. J.M. acknowledged that he told his sister and his best friend that he was J.R.R.'s biological father but denied making it public knowledge.

[110] M.R.R. and J.M. exchanged text messages over the next few months. J.M. continued to inquire about "his daughter" and to ask for pictures of her. M.R.R. provided the requested photos but also expressed her displeasure and frustration at not being left to parent J.R.R. independently.

[111] The text message exchanges illustrate this dynamic:

April 29, 2015:

M.R.R.: "It looks like the information about you being [J.R.R.]'s father is spreading. I heard from more than one guy that you are not making this a secret. Also [M.] had been seen driving around here so she knows where I live. This is not a game and I am not happy about it. This is my daughter's life!!!! I am extremely upset"

J.M.: ". . . I didn't tell anyone except. My sisters. And [G.] my best friend . . . Stick to the story and so will I . . ."

M.R.R.: "I completely deny. People say you are saying it. It seems all my neighbors know and M. and I deny like 100%"

. . . . . [page629]

M.R.R.: "I am not contacting you anymore and this is my daughter and I am the one responsible for her well being.."

[112] In September 2015, M.R.R. saw a lawyer in Pickering initially about the problems with J.M.'s ex-wife but while at the lawyer's office, she asked for a domestic contract setting out each party's status vis-à-vis J.R.R. J.M. paid for the lawyer.

[113] M.R.R. signed the contract on September 25, 2015 and provided a copy to J.M. shortly thereafter.

[114] The contract contained the following terms:

4. Purpose of Contract

4.1 The parties intend by this contract to do the following:

(a) To waive any parental rights that [J.M.] may have in [J.R.R.], including custody and access rights; and

(b) to waive any claim to child support that [M.R.R.] may make to [J.M.] on behalf of [J.R.R.].

(c) to confirm the agreement the parties had made prior to the conception and birth of [J.R.R.], whose provisions correspond with clauses 4.1(a) and (b) above.

5. Waiver of Parental Rights

5.1 [J.M.] waives any and all rights that he may have to custody, access, or guardianship of [J.R.R.].

5.2 [J.M.] has no right to communicate with, contact, visit or request photographs of [J.R.R.].

5.3 [J.M.] has no right to pick [J.R.R.] up from daycare, school, or any other activity.

5.4 [J.M.] confirms that clauses 5.1 and 5.2 conform to the agreement he had with [M.R.R.] prior to the conception and birth of [J.R.R.].

5.5 [J.M.] confirms that he will not attempt to vary this agreement at any point in the future.

6. Waiver of Support

6.1 [M.R.R.] releases the right to make any claim on behalf of [J.R.R.], to [J.M.], with respect to child support, whose rights are given or imposed upon [J.M.] by the any applicable legislation or law, now or in the future, at law or in equity.

6.2 [M.R.R.] confirms that she will not attempt to vary this agreement at any point in the future.

[115] The contract also contained M.R.R.'s acknowledgment that her lawyer advised her that the waivers with respect to custody, access and child support might not be enforceable.

[116] M.R.R.'s lawyer did not advise her that a declaration of non-parentage would be a legal option for her to consider. [page630]

[117] J.M. was upset by the contract and initially refused to sign it.

[118] On October 8, 2015, M.R.R. warned J.M. that he needed to consider carefully whether he wanted to be a father to J.R.R. with the associated financial obligations.

[119] In the intervening period, things deteriorated further when M.R.R. met with J.M.'s girlfriend to compare notes.

[120] On November 7, 2015, J.M. texted M.R.R.: ". . . I did a favour for you which can't be replaced in a lifetime. I want to be in peace. . . ." M.R.R. responded by texting: "I wanted you to do just a donation of sperm and tell [your girlfriend] but you wanted to have it naturally and was ALL the time here and lied to her. It was YOUR condition, not mine . . . now you will have to pay for your daughter. . . ."

[121] The same day J.M. told M.R.R. that he was going to sign the contract, she said that she did not care whether he signed and she terminated the text exchange by saying: "you are not in control any longer. Court is . . .".

[122] J.M. signed the contract on November 7, 2015 in front of a witness. He offered to drop the contract off at M.R.R.'s home, but she told him to take the contract to her lawyer. She then sent him a text saying that she "had to think hard to figure this out. Wait for the court date . . . This is not up to you anymore." On November 9, 2015, she again asked him to drop the contract off at her lawyer's office.

[123] M.R.R.'s position is that there is no valid contract as she withdrew the offer before J.M. signed the agreement. Even if there was a valid agreement, M.R.R. claims that J.M. breached the agreement by "seeking parental rights" and by reneging on the declaration of non-parentage made in the agreement.

[124] The contract does not meet the criteria under s. 7(4) of the CLRA even if I found it to be otherwise binding under basic principles of contract. In my view, it is not necessary for me to make a finding of contractual validity. M.R.R. retained a lawyer, she arranged for the contract and she signed it; to this extent, the contract speaks to her intentions both pre-conception and up to that point that J.M. was not a parent to J.R.R. Similarly, J.M. signed the contract and to that extent the contract is evidence of his pre-conception intention not to be a parent.

(iii) Did the intentions of the parties change?

[125] M.R.R. asserts that after J.R.R. was conceived, J.M. behaved in contravention to their agreement. (I note that this contradicts her assertion that there was no agreement.) He [page631] inquired after her well-being and that of J.R.R. (both in utero and after birth). He participated in the selection of her name. He sent pictures of his family and requested pictures of J.R.R. He regularly expressed his love for J.R.R. and for M.R.R.

[126] J.M. asserted on a number of occasions that J.R.R. was "his daughter". J.M. told a number of people that he was J.R.R.'s father.

[127] J.M. was obviously emotionally impacted by the conception of J.R.R. and her birth. I have no doubt that his expression of love for J.R.R. was genuine. However, his actions when examined overall do not detract from the parties' original pre-conception agreement. Although J.M. asked to see J.R.R. from time to time, he was respectful of M.R.R.'s wishes and he did not press. In fact, he has only seen J.R.R. a handful of times for short visits since her birth. M.R.R. acknowledged that J.M. and J.R.R. have no relationship.

[128] M.R.R. tells J.R.R. that J.M. is her biological father, not "daddy" or "father". The fact that J.R.R. may know of J.M. similarly does not detract from the pre-conception intentions of the parties that J.M. would not be her legal parent. When M.R.R. was attempting to conceive through artificial insemination, she left the door open for J.R.R. to know the identity of her biological father, as she understood that to be beneficial for the child.

[129] M.R.R.'s intentions obviously changed around November 2015, when she advised J.M. that she was going to court to seek child support from him. However, prior to that time, her intentions and actions were consistent with the parties' original agreement: M.R.R. parented J.R.R. independent of J.M., and she did not ask J.M. for financial support.

[130] It is conceivable that in certain cases, the actions of the parties following the conception of the child could be so different from the pre-conception intentions that a declaration of non-parentage would not be appropriate. However, the overall legislative purpose of Part I of the CLRA suggests that the parties' pre-conception intent is to be given significant weight.

[131] There are policy reasons as to why putting too much emphasis on the parties' post-conception actions or intentions may be inappropriate.

[132] There are long-standing legal limits on a parent's ability to contract with respect to certain parental rights and obligations after a child is born. Section 33(4) of the FLA states that the court may set aside a provision for support or a waiver of the right to support in a domestic contract in certain circumstances [page632] and s. 56 of the FLA also restricts a party's ability to opt out of the legislation by agreement with respect to custody and child support issues among others.

[133] These provisions support the fact a child's legal parents should have limited scope for contracting out of the rights and the obligations associated with being a parent.

[134] Parties may also agree that it is beneficial for a known sperm donor or a surrogate to see the child from time to time and/or for the child to know what role that person played in bringing him or her into the world without compromising or calling into question that person's status as a legal non-parent to the child.

[135] Although I put less weight on this aspect of the analysis, on balance after J.R.R. was conceived, J.M. and M.R.R. acted reasonably consistently with their original pre-conception intention: J.M. was a sperm donor only, and he would have no rights, privileges and obligations toward J.R.R., and M.R.R.'s family unit would be comprised of her and J.R.R.

(iv) Are J.R.R.'s best interests relevant?

[136] M.R.R. argues in her factum that "the simple fact is that J.M. is the biological father of J.R.R. and by that fact the child's best interests take precedence. J.M. may not have any involvement in J.R.R.'s life, but he continues to have a financial obligation to the child".

[137] In P. (P.), at para. 61, the Court of Appeal confirmed that it is

. . . well established that child support is the right of the child: see, e.g., S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.) , at para. 38. There is a corresponding obligation "placed equally upon both parents" to financially support the child: Paras v. Paras (1970), 1970 370 (ON CA), [1971] 1 O.R. 130 (Ont. C.A.). The Supreme Court of Canada has confirmed that:

the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is "automatic" and both parents must put their child's interests ahead of their own in negotiating and litigating child support (Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (S.C.C.), at para. 208).

[Emphasis added]

[138] How then does one reconcile this trite principle that financial support is in the best interests of the child with a declaration of non-parentage that voids the child support obligation?

[139] The amended CLRA does not stipulate that the court consider the "best interests of the child" in making a declaration under s. 13. [page633]

[140] There are three sections in Part I of the amended CLRA that do make reference to "best interests".

[141] The declaration of parentage in cases of surrogacy is set out in s. 10 of the CLRA. Section 10(3) requires a surrogate to consent to relinquish parentage following the birth of the child. Where the surrogate fails to do so, any party to the surrogacy agreement can seek a declaration of parentage or non-parentage. In that case, pursuant to s. 10(8), "[t]he paramount consideration by the court in making a declaration under subsection (7) shall be the best interests of the child".

[142] Section 13(5) of the amended CLRA states that in those cases where the declaration will result in the child having more than two parents (s. 13(4)1) or in the child having as a parent one other person, in addition to his or her birth parent, if that person is not a parent of the child under ss. 7, 8 or 9 (s. 13(4)2), the court is required to consider, along with pre-conception intent and other factors, that the declaration is in the best interests of the child.

[143] Section 17 of the amended CLRA requires the court to consider the child's "best interests" when determining whether to legally change his or her surname as part of declaration of parentage.

[144] The requirement that the court consider the "best interests of the child" when determining parentage under Part I of the CLRA is only contained in those three foregoing instances. It was open to the legislature to require that the "best interests of the child" be considered with respect to any declaration of parentage; it did not and I assume therefore that the omission was intentional.

[145] Under the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"), the court is required to consider the best interests of the child when making an adoption order. Pursuant to s. 158(2) of the CFSA, the effect of the adoption order is that the adoptive child becomes the child of the adoptive parent and ceases to be the child of the person who was his or her parent before the adoption order except where the person is the spouse of the adoptive parent. Although the effect of an adoption order is in some respects analogous to a declaration of non-parentage, the adoption order, which terminates a parent's pre-existing legal status, may raise different issues in terms of the child's best interests than the declaration of parentage, which is a finding or determination of parental status.

[146] The issue of "best interests" in the context of a parentage application was addressed in Ferguson v. McKiernan, 940 A.2d 1236, 596 Pa. 78 (Pa. 2007), at p. 1238 A.2d. In that case, the [page634] Pennsylvania Supreme Court upheld an oral pre-conception agreement between a known sperm donor and the children's mother wherein the sperm donor would not have any legal rights or obligations of a parent to the children. In so doing, the Pennsylvania Supreme Court stated [at p. 1248 A.2d]:

This Court takes very seriously the best interests of the children of this Commonwealth, and we recognize that to rule in favour of Sperm Donor in this case denies a source of support to twin children who did not ask to be born into this situation. Absent the parties' agreement, however, the twins would not have been born at all, or would have been born to a different and anonymous sperm donor, who neither party disputes would be safe from a support order.

[147] M.R.R. intended to be a single parent to her child. Had she successfully conceived through artificial insemination by anonymous donor, the child would not have had the benefit of financial support from the biological father. M.R.R., to use her words, then "picked J.M." as a sperm donor. J.M. consented to donate sperm; he did not consent to be a father to the child.

[148] The "best interests of the child" test in the sense it might be applied in a custody, access or child support matter may not readily translate into a determination of a declaration of parentage. In the case law prior to the amendments to the CLRA, the courts identified that "best interests" did not appear to be a factor in the declaration of parentage although in several cases the court found that such declarations, made on consent of all parties, could be seen to be in the child's best interests.

[149] To examine the "best interests of the child" in a parentage case could produce results that directly contradict the spirit and purpose of Part I of the CLRA. Part I of the amended CLRA was designed to protect the security of children regardless of family composition; a family can be comprised of one parent and one or more children. As the court in Ferguson noted, although a child would obviously benefit from having a further source of financial support, that approach could undermine the autonomy of those seeking to define their family unit to exclude known sperm donors or surrogates as legal parents, and it could discriminate against people who choose, prior to the child's conception, to be single parents. If parties do not have confidence in their pre-conception agreements, they may simply opt not to have a child at all.

[150] Section 13 is a broad provision, and it is not possible to anticipate every circumstance wherein a declaration of parentage or non-parentage might be sought. There may be circumstances wherein the "best interests of the child" would be a factor in making a declaration under s. 13. However, in my [page635] view, the court is not required to look to the child's "best interests" in the traditional sense in every case when making a declaration of parentage.

(e) Summary

[151] The relief sought by J.M., a declaration that he is not the parent of J.R.R., has significant and wide-ranging legal and social impact for both M.R.R. and J.R.R. and for J.M. himself.

[152] A declaration of non-parentage made under s. 13 of the amended CLRA shall be recognized for all purposes and is deemed effective from the child's birth: s. 15.

[153] M.R.R. argued that J.M. has manifested a "settled intention" to treat J.R.R. as his child, and there should be a finding that he is a parent for the purposes of a child support obligation under the FLA. Absent a declaration of non-parentage, M.R.R. would not need to advance this claim, as J.M. would be deemed to be J.R.R.'s parent whether or not he exhibited a settled intention to act as one.

[154] If the declaration is granted, J.M. will have no child support or other legal obligations toward J.R.R. nor will he have any of the rights and privileges of parenthood.

[155] J.M. is prima facie J.R.R.'s parent within the meaning of s. 7(1) of the amended CLRA. J.M. cannot rely on the presumption in s. 7(4) of the CLRA that he was simply a sperm donor, as he and M.R.R. did not enter into a written agreement prior to J.R.R. being conceived. However, the evidence points to the fact that the parties had an agreement that J.M. would be a sperm donor and would not be a parent to the child conceived.

[156] The communication between the parties both before and after J.R.R. was conceived supports a pre-conception agreement that J.M. was acting as an intentional sperm donor rather than as a prospective parent. M.R.R. repeatedly refers to the agreement of the parties and how she "picked" J.M. as a sperm donor.

[157] The actions and inactions of J.M. and M.R.R. also support this pre-conception agreement including the fact that the parties sexual and social relationship ended after conception, J.M. was not named on the statement of live birth as J.R.R.'s father, J.M. only saw J.R.R. a handful of times and has no relationship with her, and M.R.R. did not request child support until shortly before commencing this application.

[158] The contract that M.R.R. asked her lawyer to prepare specifically states that it conforms to the parties' original agreement reached prior to J.R.R. being conceived. Even if contractually invalid, it is further evidence in support of the parties' pre-conception intentions. [page636]

[159] The emotional conflict experienced by J.M. after J.R.R. was conceived reflects how complex these parenting agreements can be. J.M.'s statement that J.R.R. "is his daughter" does not in my view vitiate the parties' pre-conception agreement.

[160] In this case, the presumption under the CLRA is that J.R.R. is J.M.'s child, and he is her parent; he therefore bears the burden of demonstrating that a declaration of non-parentage is appropriate.

[161] I find that on the balance of probabilities the parties had an agreement prior to J.R.R.'s conception that J.M. would act as a sperm donor, J.M. would not be a father to the child, and M.R.R.'s family unit comprised of herself and J.R.R. would be complete.

[162] The amendments to the CLRA with respect to parentage move the focus away from biology toward the pre-conception intentions of the parties. The legislature, in enacting the amendments to the CLRA, has signalled its support for parties to determine a child's family unit regardless of the gender of the parents and, with some limitations, regardless of the number of parents. A family intentionally comprised of one parent is no less a child's family than one comprised of two or more parents.

[163] The legislation sets out a framework wherein, if followed, prospective parents can ensure that when the child is born they will be entitled to legal recognition of their parental status or non-status without costly and possibly public legal processes. However, as history tells us, the legislation cannot anticipate every parenting arrangement and not every parenting arrangement will meet the statutory presumptions. In those cases, like this one, parties seeking declaratory relief with respect to parentage must resort to s. 13 of the amended CLRA.

[164] This case should not stand for the proposition that parties are not required to reduce their agreements to writing. Rather, the facts in this case highlight how crucial it is for parties to have a written agreement clearly defining their intentions before a child is conceived. Decisions as to whether or not to be a parent to a child are far better reached in a dispassionate setting rather than in the emotional place following the conception and birth of the child.

[165] Children benefit from having a secure and certain family unit made up of one or more loving and committed parents regardless of how the child was conceived. The evidence tells me that J.R.R. has a warm, secure and loving family.

[166] For all of these reasons, a declaration shall issue that J.M. is not J.R.R.'s parent. [page637]

VI. Initializing

[167] J.M. requested an order that the parties and the child be referred to by initials. M.R.R. consented to this relief. Neither party requested an order sealing the court file. This case was commenced and has proceeded to date using the full names of all parties and of the child.

[168] Neither party provided the media with notice of the relief being sought, and no submissions were made with respect to whether notice should be dispensed with.

[169] The Superior Court of Justice issued a practice direction effective July 1, 2016 requiring that,

106. Unless otherwise directed by a judge, any person seeking a discretionary order restricting publication of any Superior Court proceeding must serve and file a notice of motion or application and any supporting materials, in accordance with the applicable procedural rules.

107. Unless otherwise directed by a judge, the person seeking the publication ban (the requesting party) must provide notice to the media of the motion/application, using the procedure set out in this section.

The practice direction sets out the process for putting the media on notice.

[170] In M. (A.) v. Toronto (City) Police Service (2015), 127 O.R. (3d) 382, [2015] O.J. No. 4707, 2015 ONSC 5684 (Div. Ct.), Nordheimer J. confirmed [at para. 17] that while a judge has discretion as to whether to require that the media be given notice the "default position is that notice should be given". While Toronto Police Service was a civil case, "there is no exception to the open court principle in the family law context": Foulidis v. Foulidis, [2016] O.J. No. 5592, 2016 ONSC 6732, 86 R.F.L. (7th) 338 (S.C.J.), at para. 16.

[171] In P. (B.C.) v. P. (A.R.), [2016] O.J. No. 3699, 2016 ONSC 4518, 87 R.F.L. (7th) 219 (S.C.J.), Kiteley J. was asked to make a sealing order. This case involved four separate parentage applications wherein the children had been conceived through assisted reproduction. The parties had not given notice to the media. Kiteley J. summarized the leading cases by the Supreme Court of Canada with respect to publication bans, at paras. 22-24:

In Dagenais v. Canadian Broadcasting Corp. the Supreme Court held that a publication ban, a sealing order, or any other relief limiting the openness principles of judicial proceedings should only be ordered where (a) a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the negative impact on the freedom of expression of those affected by the ban. [page638]

In R. v. Mentuck the Supreme Court reformulated the test stating that a publication ban should only be ordered when (a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial and the efficacy of the administration of justice.

In Re Vancouver Sun the Supreme Court referred to the "adaptable" Dagenais/Mentuck test to balance freedom of expression and other important rights and interests that are broader than simply the administration of justice and may include privacy and security interests.

[Citations omitted]

[172] In P. (B.C.), Kiteley J. also considered the provisions regarding confidentiality under the CLRA (s. 70) which at that time applied only to applications under Part III of the Act (Custody, Access and Guardianship). It is significant to note that s. 17.3 of the amended CLRA now extends these confidentiality provisions to Part I (Parentage).

[173] Section 70 of the CLRA provides for limits on access to a court file in the best interests of the child; this section reads as follows:

70(1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,

(a) that access to all or part of the court file be limited to,

(i) the court and authorized court employees,

(ii) the parties and their counsel,

(iii) counsel, if any, representing the child who is the subject of the application, and

(iv) any other person that the court may specify; or

(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file.

(2) In determining whether to make an order under subsection (1), the court shall consider,

(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

(3) Any interested person may make an application for an order under subsection (1). [page639]

[174] Kitely J. conducted a detailed analysis, at paras. 31-32, in that case and found

. . . by exercising the court's discretion not to put the media on notice and sealing the court file, the court will protect the child's dignity and privacy, and this salutary effect far outweighs the extremely remote deleterious effect, if any, on the public generally of being deprived of the opportunity to know the background of the child's birth.

. . . it is in the direct best interests of the child that is the subject of the parentage application and in the indirect best interests of that child that privacy be afforded as well to intended parents and other siblings and to the surrogate and her domestic partner (if any), and their children (if any) that I exercise my discretion against notification to the media.

(Emphasis in the original)

[175] I rely upon the principles set out in P. (B.C.) to dispense with the requirement in this case that the media be given notice of the request to initialize.

[176] I have considered the factors under s. 70 of the CLRA and have applied the Dagenais/Mentuck criteria. The nature of this case and the issues raised therein are sensitive. They are different than the allegations often raised in contested custody and access cases. The evidence contains intimate details of the parties' sexual and family life necessary to support their position in terms of whether or not J.M. is a parent. The court file is open for review by the media or any other member of the public who requires further information. The order sought simply grants anonymity to the parties and the child. Were I not to make the order, I can foresee the parties and more importantly the child suffering from unnecessary emotional or mental harm. Furthermore, the order sought by J.M. is often one of the "reasonable alternatives" to a sealing order and one of the least intrusive in terms of the limitation on the right to free expression: B. (C.L.) v. B. (J.) (2009), 97 O.R. (3d) 544, [2009] O.J. No. 2693, 2009 33033 (S.C.J.). The salutary effect of initializing the file particularly having regard to the children outweighs the relatively modest impact to the freedom of expression and the open court principles.

V. Costs

[177] The issues in this case were novel and required the interpretation of legislation that was only a few weeks old when the motions were heard. For this reason, an award of costs may not be appropriate. However, I am prepared to entertain submissions if the party seeking costs served an offer pursuant to Rule 18 of the Family Law Rules. [page640]

VI. Order

(1) Notice to the media with respect to the relief granted under paras. 2 and 3 of this order is dispensed with.

(2) The title of proceedings shall be amended to use initials to identify the parties and the child and the Registrar of the Superior Court of Justice of Ontario is directed to amend records accordingly.

(3) Any person who has gained access to the court file is prohibited from communicating to any other person the identity of the parties, the child or any relatives of the child or any information that has the effect of identifying the parties or the child or relatives of the child.

(4) It is hereby declared that J.M. is not the father of J.R.R.

(5) The applicant's motion is dismissed.

(6) If a party seeks costs and that party delivered a Rule 18 offer to settle, that party may deliver submissions not to exceed five pages excluding offer to settle and bills of costs on or before May 19, 2017. Responding submissions not to exceed five pages excluding offer to settle and bill of costs shall be delivered on or before June 2, 2017. Parties are to file a USB key with an electronic copy of their submissions on the same dates.

Motion granted.

Notes

1 While I do not find this term entirely satisfactory, in this decision, a "traditional family" means a family wherein the child(ren)'s parents are one man and one woman.

2 Service Ontario now allows parents to register their babies using inclusive titles or when recognized under new parentage rules: <https:// www.ontario.ca/page/register-birth-new-baby>.

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