M.L. v. J.C., 2017 ONSC 7179

CITATION: M.L. v. J.C., 2017 ONSC 7179 COURT FILE NO.: FS-16-721 DATE: 2017-12-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.L. Applicant

• and -

J.C. Respondent

COUNSEL: Barry T. Paquette, for the Applicant Self-represented, for the Respondent

HEARD: September 13, 14, 18, 19, 2017; October 4, 2017

JUDGMENT

THE HONOURABLE MADAM JUSTICE L. MADSEN

Preliminary Note: For the reasons set out below, this case has been initialized. However, for ease of reading, certain persons are referred to by pseudonyms: the Applicant M.L. is referred to as Mark; the Respondent J.C. is referred to as Jane; J.C.’s partner S.N. is referred to as Samantha; J.C.’s former partner is referred to as Peter; and J.C’s children, other than the child who is at the heart of this proceeding, are referred to as Georgia, Tommy, and Matthew. None of these are their real names. The child of the parties is referred to as B.G., short for “Baby Girl,” except where the determination of her name is discussed. “Olivia” is the pseudonym for the name the Applicant has been using for the child. “Faelynn,” is the pseudonym for the name the Applicant has been using for the child. To protect the confidentiality of the parties, I have not named some of the witnesses called by each party.

OVERVIEW

[1] This case is about who the legal “parents” are of a lovely, happy, thriving, beautiful one-year-old girl, who, for the purpose of this Judgment, I will call B.G. (Baby Girl). While she is surrounded by love from all sides, those involved in her conception and birth have been unable to agree on who her parents are, what her name should be, and what the parenting arrangements should be in the event that this Court finds both parties to be parents of the child. They also do not agree on whether child support is payable.

[2] In addition to being stressful and heart-wrenching for the adults involved, this case is a poignant case study on the importance of the recent amendments to the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 [“CLRA”] regarding parentage, made through the All Families are Equal Act, S.O. 2016, c. 23. What transpired between these parties illustrates the necessity for the clarity and certainty provided by those amendments, as well as certain gaps in those amendments.

[3] The central dispute in this case arises from the following set of basic facts, which are detailed more fully throughout the judgment.

[4] In March 2014, after discussions over several months, the parties, M.L. (Mark) and J.C. (Jane), agreed to assist one another with the conception of two children. One child would be for Mark, who had long wanted to have a child, and one child would be for Jane and her spouse, S.N. (Samantha). Mark says that they agreed that the child carried by Jane would become his, and that the child carried by Samantha would be the child of Jane and Samantha. Neither party would have rights or obligations in relation to the other’s child. Jane, by contrast, says that they agreed that she and Samantha would keep the “first” child and that Mark would get the “second” child.

[5] There was no written agreement between the parties. Neither of the parties received independent legal advice on any agreement, written or oral.

[6] When, after unsuccessful efforts to impregnate Samantha over a period of approximately two years it briefly appeared possible that she was pregnant, Jane was inseminated with M.L.’s sperm. She became pregnant with B.G in early 2016.

[7] Several days later, it became clear that Samantha was not, in fact, pregnant. Efforts to inseminate her would continue until May 2016.

[8] Jane carried to term and B.G. was born […], 2016. Jane did not sign a Consent to relinquish her entitlement to parentage following the birth of the child.

[9] While B.G. is petite, she is healthy and meeting her developmental milestones.

[10] B.G. has lived with Jane and Samantha since birth.

[11] Mark has had Court-Ordered parenting time with B.G. since December 2016. From December 8, 2016 until January 30th, 2017, he had gradually expanding day access. From January 30, 2017 onwards, B.G. has resided with Mark from Thursday at 4:00 p.m. until Saturday at 4:00 p.m., each week.

[12] Jane has three other children from a prior relationship: Tommy (age 13), Matthew (age 7), and Georgia (age 16). Jane has a week-on/week-off arrangement with the children’s father, Peter.

[13] Georgia has significant behavioral, mental health, and addictions issues. Mark says that this causes risk to B.G.

[14] Jane and Mark have different parenting and housekeeping styles. Mark is neat, tidy, and organized. Jane’s home is loving but less pristine.

ISSUES

[15] There are six issues to be determined in this case:

1. Is there a valid surrogacy agreement between Jane and Mark?
2. Who is entitled to a declaration of parentage in relation to B.G.?
3. What parenting arrangements are in B.G.’s best interests?
4. What shall B.G.’s name be and how shall her name and birth be registered? What if her birth and name have already been registered?
5. What are the appropriate child support arrangements in light of the conclusions regarding parenting?
6. Is it appropriate to initialize and/or seal the Court file in this matter?

[16] Based on the evidence and for the reasons set out below, this Court concludes that:

1. There was no valid surrogacy agreement between Mark and Jane;
2. Jane, Mark, and Samantha are the legal parents of B.G.;
3. B.G. shall reside with Mark an average of three days each week and with Jane four days each week on the schedule set out below; Jane shall make major decisions for B.G., after meaningful consultation with Mark;
4. It is in B.G.’s best interests that her name be Faelynn Olivia C.-L. If her birth has not been registered, Jane shall register her birth and the child’s name as such; if her birth has been registered, Jane shall within 90 days apply to change B.G.’s name under the Change of Name Act to Faelynn Olivia C.-L.;
5. Child support cannot be determined on the evidence at this time and is adjourned to a further appearance to be scheduled through the Trial Coordinator if child support is not resolved by the parties through discussion and negotiation; and
6. The Trial Record shall be initialized and sealed.

[17] The parties were once good friends and trusted one another. It is hoped that with this judgment they will be able to move forward for the benefit of B.G., prioritizing her best interests and healthy development. By all accounts, she is a lovely little girl. It is hoped that Mark and Jane will each be able to see the deep love that the other has for their shared daughter and that this will assist them in parenting her cooperatively.

PROCEDURAL ISSUES

[18] At the commencement of Trial, Jane requested that the Office of the Children’s Lawyer be appointed and that the Trial be adjourned to allow the OCL to conduct an investigation. This request was denied. In March, 2017, Justice Gordon had ordered that the Trial be expedited and that the matter be set down for Trial. Shortly before Trial, at “speak-to” Court, Justice Glithero was met with the same requests by Jane and ordered that the Trial proceed.

[19] As of the commencement of Trial, the records from Portage Elora Drug Addiction and Rehabilitation Centre [“Portage”] had not been produced, although Jane had signed a consent for the production of those records. Portage required the consent of Georgia, in light of her age. Mid-way through the Trial, Georgia consented by letter to the Court to the records being reviewed by the parties and the Court.

WITNESSES AND CREDIBILITY

Mark’s Witnesses

[20] Mark testified and called as witnesses a number of friends, some of whom had been colleagues of both Mark and Jane. He also called a record keeper from Portage, Jennifer Andrews, in relation to records of Jane’s oldest child, Georgia.

[21] I found Mark to be a credible witness. He testified in a straightforward and consistent manner about the arrangement he negotiated with Jane. He did not waver from his recollection of the “terms” of that arrangement.

[22] I also found Mark’s evidence about B.G. to be credible. He testified that she is a happy baby who smiles a lot, that she is reaching the normal stages of development, and that he does not have any concerns about her – as he said, she is where she should be.

[23] Mark called six witnesses to testify primarily about the “agreement,” his parenting or personal qualities, and observations of his relationship with B.G. Several also testified about observations of Jane’s parenting in relation to her other children, and the cleanliness of B.G. when coming from Jane’s care into Miguel’s care.

[24] Several of Mark’s witnesses were colleagues or former colleagues who are also friends. Two were individuals with whom he had long-term friendships, each of whom had accompanied Mark on several access exchanges. All of the witnesses called by Mark testified credibly.

[25] Several witnesses confirmed that they had either heard Jane describe the arrangement with Mark in a manner consistent with Mark’s description, or had spoken with Jane directly about the arrangement that was discussed. All understood the plan to be that Jane would carry a baby for Mark and Mark would provide reproductive material for a baby to be carried by Samantha for Jane and Samantha.

[26] Mark’s witnesses were consistent in their evidence that Mark is a loving and devoted father. One stated that Mark adores his daughter and another described B.G. as “Daddy’s girl.” Another described Mark as an unselfish parent who was “blissful” in his relationship with his daughter.

[27] Mark also called a worker from Portage who delivered the records from that agency with respect to Jane’s child Georgia.

[28] None of Mark’s witnesses testified to having detailed knowledge of Jane’s parenting of B.G. or of her housekeeping.

Jane’s Witnesses

[29] Jane testified, as did her spouse, Samantha. She called a Children’s Aid Society [“CAS”] worker, Mr. Christopher Hoffer, who had been involved with the family in relation to Georgia’s issues. Jane also called two friends as witnesses.

[30] I found Jane’s evidence to be credible on many, but not all issues. She was direct and believable in her testimony regarding her routines with B.G. and the issues faced by Georgia. She credibly described the many efforts that she and Samantha have made to support Georgia and to protect all of the children, including B.G. Her evidence on these issues was confirmed by the evidence of Mr. Hoffer. I believed her evidence that B.G. is happy and healthy, which is consistent with Mark’s evidence.

[31] However, I had difficulty with Jane’s evidence regarding the conception arrangement with Mark. Her evidence was internally inconsistent. For example, at the beginning of her testimony she testified about the plan to have a “baby for Samantha” if she carried a baby for Mark. Later in her testimony, however, she stated, “In my mind, it was an agreement that there would be two babies,” and further on she stated that she only “told” Mark in the spring that she and Samantha planned to keep the child (B.G.). “Telling” Mark this in the spring is not consistent with her position regarding what the initial agreement was.

[32] I also note that when asked about whether she was aware that Georgia had been involved in “prostitution,” Jane indicated she was not aware of this until she read the records. (I leave aside the issue of whether a child can be said to be involved in “prostitution” or whether this is better described as a child being sexually exploited.) However, a review of the CAS records indicates that she was aware of this in September 2015 and told the CAS worker about it.

[33] I found many aspects of Samantha’s evidence to be credible, including her description of the process used when she and Jane were trying to have Samantha become pregnant, her description of her relationship with Jane’s other children, and her description of her role in the family. However, as with Jane’s evidence about the arrangement with Mark, I found her evidence to be inconsistent, and ultimately not credible. Like Jane, she testified that the plan was that they would be able to keep the first child. However, she also referred to “making Mark aware” that the agreement was that they would keep the first child. If that was the arrangement in the first place, they would not have needed to make him aware of it. Further, she testified that if she had become pregnant between March and May 2016 (with Jane already being pregnant), they would have co-parented B.G. until Samantha’s child was born. At that point they would have given B.G. to Mark and kept the child born to Samantha. None of this is consistent with the assertion that the arrangement was that she and Jane would keep the first child. It is more consistent with the likelihood, as I will set out further below, that she and Jane changed their minds about the arrangement when Samantha did not get pregnant as hoped.

[34] The CAS worker, Mr. Hoffer, testified credibly about his involvement with Jane and her family, and about the extensive efforts made by Jane and Samantha to support Georgia and to keep the other children safe. He also testified credibly that Jane’s home is loving and appropriate. Mr. Hoffer stated that the mandate of the CAS is to ensure the safety of children and support the family in maintaining the children’s safety. He would have no reason to mislead the Court about the safety, security, or cleanliness of Jane’s home or about the quality of Jane and Samantha’s parenting.

[35] I had difficulty with the evidence of a friend and former colleague of both Jane and Mark. Mark had been her supervisor and she appeared, more than anything, to be a disgruntled employee with an “axe to grind” against Mark. I found her evidence not to be credible. I have also disregarded prior consistent statements in her testimony concerning the content of the “agreement” between Jane and Mark.

[36] Finally, Jane called another friend who testified credibly as to Jane and Samantha’s relationship which she described as “amazing”, and one in which the two share responsibilities and help each other. She described the home as “family chaotic, but clean”, consistent with the evidence of the CAS worker that the home is clean and appropriate. This witness met B.G. when she was just hours old, and sees B.G. approximately once per week, almost always unannounced. I have disregarded any prior consistent statements in her testimony concerning the content of the “agreement” between Jane and Mark. Importantly, this witness testified that it was always Samantha’s wish to have a baby. This is consistent with Mark’s version of the arrangement, namely that Jane and Samantha would keep the baby born to Samantha and Mark would keep the baby born to Jane.

ISSUE 1: IS THERE A VALID SURROGACY AGREEMENT?

[37] Mark’s position at Trial was that there is a valid surrogacy agreement between him and Jane, which should be enforced. He submitted that it was clear from the beginning that the parties intended that the baby born to Jane should be his and that the Court should give effect to that intention. He called numerous witnesses who, as noted above, testified credibly to having heard Jane and Mark discussing the arrangement between them, as well as witnesses who stated Jane had told them directly that this baby was to be Mark’s. He asserts that the oral agreement before conception should suffice and be regarded as a valid surrogacy agreement.

[38] Jane’s position was that there is no valid surrogacy between her and Mark. She stressed that there was no written agreement, neither party received legal advice on any agreement, oral or written, and that she did not consent to relinquishing her rights of parentage after the birth of the child. Further, as noted above, she testified to a different understanding of the oral agreement between her and Mark, namely that she and Samantha would have the “first baby” and that the “second baby” would be for Mark. She stated that once it became clear that Samantha had not become pregnant, she and Samantha discussed potential co-parenting arrangements with Mark.

A. Recent Changes to the Law of Parentage in Ontario

[39] The All Families are Equal Act came into force on January 1, 2017, amending sections of the CLRA. The amended CLRA includes provisions both for declarations of parentage and declarations of non-parentage. The sections also define “assisted reproduction”, “surrogacy agreement,” and other terms related to parentage.

[40] The amendments to the CLRA were intended to ensure equality and inclusion. As stated by the Honourable Yasir Naqvi, the Attorney General of Ontario, at the Third Reading of Bill 28 on November 29, 2016:

Passing the All Families are Equal Act would update our laws so that all kids are treated equally, by recognizing the legal status of their parents no matter if their parents are LGBTQ2+ or straight, and no matter if they were conceived with or without assistance…

This Bill has been about inclusion. This Bill has been about equality. It is about ensuring that parents, regardless of their background, reflecting the diversity of our province, are able to care and provide love for their children the way we have always, always done. I think that is exciting.

[41] In addition, the Bill also sought to recognize the vulnerabilities of potential surrogates by ensuring a surrogate’s intention not only before the conception of a child, but also her continuing intention after the birth of a child. As Mr. Naqvi stated:

If passed, the Bill would also allow parents who use a surrogate to have a child to be legally recognized as parents without having to go to Court, as long as they have a written agreement with the surrogate and all have received legal advice. To help protect the rights of surrogates, this Bill, if passed, would also require the surrogate to confirm that she is still OK with giving up the child after it is born. [Emphasis added.]

[42] Section 10 of the amended CLRA provides as follows (emphasis added throughout):

(1) Definitions -- In this section and section 11,

“intended parent” means a party to a surrogacy agreement, other than the surrogate;

“surrogacy agreement” means a written agreement between a surrogate and one or more persons respecting a child to be carried by the surrogate, in which

a) the surrogate agrees not to be a parent of the child, and

b) each of the other parties to the agreement agrees to be a parent of the child.

(2) Application -- This section applies only if the following conditions are met:

1. The surrogate and one or more persons enter into a surrogacy agreement before the child to be carried is conceived;

2. The surrogate and the intended parent or parents each received independent legal advice before entering into the agreement;

3. Of the parties to the agreement, there are no more than four intended parents;

4. The child is conceived by assisted reproduction.

(3) Recognition of Parentage -- Subject to subsection (4), on the surrogate providing to the intended parent or parents, consent in writing relinquishing the surrogate’s entitlement to parentage of the child,

(a) the child becomes the child of each intended parent and each intended parent becomes, and shall be recognized in law to be, a parent of the child; and

(b) the child ceases to be the child of the surrogate and the surrogate ceases to be the parent of the child.

(4) Limitation -- The consent referred to in subsection (3) must not be provided before the child is seven days old.

(5) Parental Rights and Responsibilities -- Unless the surrogacy agreement provides otherwise, the surrogate and the intended parent or parents share the rights and responsibilities of a parent in respect of the child from the time of the child’s birth until the child is seven days old, but any provision of the surrogacy agreement respecting parental rights and responsibilities after that period is of no effect.

(6) Failure to Give Consent -- A party to a surrogacy agreement may apply to the Court for a declaration of parentage with respect to the child if the consent referred to in subsection (3) is not provided by the surrogate because:

(a) the surrogate is deceased or otherwise incapable of providing the consent;

(b) the surrogate cannot be located after reasonable efforts have been made to do so; or

(c) the surrogate refuses to provide the consent.

(7) Declaration -- If an application is made under subsection (6), the Court may,

(a) grant the declaration that is sought;

(b) make any other declaration respecting the parentage of a child born to the surrogate as the Court sees fit;

(8) Child’s Best Interests -- The paramount consideration by the Court in making a declaration under subsection (7) shall be the best interests of the child.

(9) Effect of Surrogacy Agreement -- A surrogacy agreement is unenforceable in law but may be used as evidence of,

(a) an intended parent’s intention to be a parent of a child contemplated by the agreement; and

(b) a surrogate’s intention to not be a parent of a child contemplated by the agreement.

B. The Requirement of a Written Agreement, Independent Legal Advice, and Consent

[43] It is clear from the foregoing that under the amended CLRA, for there to be a valid surrogacy agreement under that statute, the following is required:

i. the surrogacy agreement must be entered into before conception; ii. the agreement must be in writing; iii. all parties must receive independent legal advice on the written agreement; and, iv. the birth mother must provide written consent to relinquish her entitlement to parentage no less than seven days after the birth of the child.

[44] Mark concedes that there was no written agreement setting out his and Jane’s intentions, as required under section 10(1). He also concedes that neither party received independent legal advice regarding any agreement, written or otherwise, as required under section 10(2). While Mark states that he contacted a lawyer from the Yellow Pages, there was no evidence that that lawyer gave legal advice to Mark about the specifics of the agreement as he understood it. There was no evidence that Jane had independent legal advice before B.G. was conceived. Further, Mark concedes that after B.G. was born, Jane did not sign a Consent relinquishing her entitlement to parentage as required under section 10(3).

C. Was there an enforceable oral surrogacy agreement?

[45] Mark says that the Court should find that there was a surrogacy agreement which should be enforced. He rests his position on two assertions: first, that his discussions with Jane constituted an oral agreement; and second, that based on certain case law, the oral agreement is enforceable notwithstanding the clear provisions of the CLRA. The Court is unable to concur with Mark’s arguments.

i. There was at best a partial oral agreement between the parties

[46] Considerable evidence was devoted to whether or not there was an oral agreement between the parties, and what that agreement might have been. This Court finds that while there was some agreement between the parties, the agreement was at best partial and incomplete.

[47] For there to be an agreement, there must be a meeting of the minds on all essential terms: see Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.), at para. 20.

[48] What constitutes an oral agreement is to be determined objectively, not subjectively. As noted in UBS Securities Canada Inc., v. Sands Brothers Canada Ltd., 2009 ONCA 328 at para. 47, “[t]he test as to whether there has been a meeting of the minds is an objective one – would an objective, reasonable bystander conclude that, in all of the circumstances, the parties intended to contract?” See para. 47.

[49] The question is not what each party intended, but whether the parties have indicated to the outside world their intention to contract and the terms of such contract. Accordingly, the Court may look to the parties’ conduct at the time: Ward v. Ward, 2011 ONCA 178, at para. 65.

[50] On all of the evidence, this Court finds that at best, the parties reached a partial oral agreement, in 2014, as follows:

a) Mark would provide semen to Jane and Samantha for insemination purposes; b) Jane would carry a baby, which, when born, would be given to Mark. Jane would have no rights to or obligations towards that child; c) Samantha would carry a baby, which, when born, would be the baby of Samantha and Jane. Mark would have no rights to or obligations towards that child.

[51] I reach this conclusion based on Mark’s consistent evidence, as well as on the evidence of several of his witnesses who either heard discussions between Mark and Jane about their agreement, or spoke directly with Jane, who stated that she was carrying a child “for Mark”. While Jane stated in cross-examination that the witnesses were not telling the truth, she did not challenge any of them about their statements when she cross-examined them. As I have set out above, Mark’s witnesses testified in a candid and straightforward way when asked about their knowledge of this arrangement.

[52] This conclusion is also consistent with Jane’s own evidence, to some extent. For example, at the very opening of her testimony she stated that Mark would be a sperm donor for Samantha if Jane carried a child for him. This is also consistent with her evidence that it was not until the spring of 2016, well after she became pregnant in January 2016, that she “told” Mark that she and Samantha intended to keep the child. Further, this is consistent with Mark attending midwife and ultrasound appointments with Jane and Samantha in the spring of 2016, and with Jane having referred to the baby being “Mark’s baby” to third parties who testified in the proceeding.

[53] The Court has difficulty with Jane’s evidence that the arrangement from the outset was that she and Samantha would keep the “first baby” and Mark would keep the “second baby.” This is not consistent with Jane’s statement at the beginning of her testimony referred to above. It is also not consistent with Samantha’s testimony that if Samantha herself became pregnant (after Jane became pregnant with B.G.) the baby would be her and Jane’s child, and that B.G. would then be co-parented and later given to Mark. Further, the letter that Jane wrote to Mark dated June 22, 2016, proposed that the second baby could be Mark’s rather than confirming that there was already an agreement that this was so.

[54] This Court finds it more likely than not that the parties made the partial agreement as set out by Mark, but did not turn their minds to the other essential terms of a surrogacy agreement – the various, predictable, “what ifs” involved in the insemination and pregnancy process. These “what ifs” would likely have been addressed had the parties received legal advice from a lawyer knowledgeable about surrogacy agreements, hence the requirement for independent legal advice under the new amendments. Examples of essential terms include (but are not limited to):

a) What would the parties do if Samantha did not become pregnant and Jane did (as transpired here)? b) What would they do if only Samantha became pregnant and Jane did not? c) What would they do if one of the women carried twins? Triplets? d) What if there was a miscarriage? e) What if a baby died at birth? f) What if, in light of genetic testing or for other reasons, one party wished to terminate the pregnancy and the other did not?

[55] The Court heard no evidence that the parties had turned their minds to anything other than there being two babies, one for each party (and each party’s interpretation of same). Even if they initially agreed, as I have found, that Mark would have the baby carried by Jane, and Samantha and Jane would have the baby carried by Samantha, this was really just the start of an agreement.

ii. Even if there was an oral agreement, it does not meet the requirements of the CLRA

[56] In support of his argument that an oral surrogacy agreement can be enforced, Mark cites two cases: Re: K.G. and S.G., 2016 BCSC 598, and M.R.R. v. J.M., 2017 ONSC 2655. Both cases are very different from Mark and Jane’s circumstances.

[57] In Re: K.G., the British Columbia Supreme Court found there to be an enforceable surrogacy agreement notwithstanding the absence of a written agreement meeting the requirements of the applicable statute in that province. As in Ontario, the B.C. legislation requires a written surrogacy agreement to be entered into before the birth of the child, and written consent by the birth parent after the child’s birth. Nevertheless, in Re: K.G., Justice Fitzpatrick upheld an oral surrogacy agreement and granted declarations of parentage as sought. Notably, in that case, there was no opposing party, and the birth mother had provided written consent to relinquish the child after the child’s birth. She had also surrendered custody of the child to the petitioners at birth and the child had remained in their care since then. These are entirely distinguishable facts.

[58] Importantly, Justice Fitzpatrick stated at para. 46:

I do not mean these Reasons to stand as precedent for future parties to disregard the clearly expressed statutory requirements in terms of recognizing parenting roles within a surrogacy arrangement. 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 clearly an emotional and life changing event. [Emphasis added.]

[59] Justice Fitzpatrick commented on the importance of written consent following the child’s birth, which is required in British Columbia as it is in Ontario under section 10(3). He stressed that the requirement of a written agreement is precisely to avoid the heartbreaking circumstances such as have unfolded in this case, at para. 46:

In addition, the later written consent … serves to reinforce these intentions, particularly on the part of the birth mother. A lack of a written agreement raises the risk that a surrogate mother will have a change of heart and that there will be contest concerning parentage once the child is born. The provisions in section 29 [requiring a written agreement before conception] 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. [Emphasis added.]

[60] Justice Fitzpatrick found that the “continuing intentions” of the parties supported “without a doubt” the conclusion that the petitioners were to be the parents of the child.

[61] In contrast, in Mark and Jane’s case, even if there was an agreement between the parties before the conception of B.G., there was clearly no shared “continuing intention” that Mark be this child’s sole parent. Jane became pregnant with B.G. in January 2016. By at least May 2016 (and perhaps earlier), approximately five months before B.G.’s birth, it was clear that Jane did not intend to relinquish entitlement to parentage.

[62] I find that Jane and Samantha did not expect that only Jane would become pregnant, and that they could no longer live with giving up the baby to be carried by Jane if Samantha was not to also have a baby. Simply, I find that they changed their minds when the circumstances did not unfold as they hoped and expected. As described in Re: K.G., the “life-changing and emotional event” of the conception of B.G. and of Samantha not becoming pregnant as expected, “had an impact on intentions.” Similarly in M.R.R, Justice Fryer at paragraph 77, “Once a child has been conceived, views and intentions can become clouded.” That, I find, is what happened here.

[63] Mark also cited the recent decision of Justice Fryer of the Ontario Superior Court of Justice in M.R.R. for the proposition that there need not be a written surrogacy agreement. Again, that case was quite different from Jane and Mark’s circumstances. In M.R.R., the biological father, J.M., sought a declaration of non-parentage under section 13 of the CLRA on the basis that he and the child’s mother intended, prior to the conception of the child, that he be a sperm donor only. The mother sought a declaration that he was a parent, essentially for the purpose of seeking child support. J.M. could not avail himself of section 7(4) of the CLRA which would have applied had they entered into a written agreement setting out that intention before the child was conceived. Justice Fryer found, based on extensive text messages between the parties which tended to confirm in writing J.M’s version of events, as well as a written agreement signed by the parties after the birth of the child, that J.M was not a parent under the CLRA.

[64] Like Justice Fitzpatrick, Justice Fryer was clear that her decision was not to stand for the proposition that written agreements are somehow optional notwithstanding the clear language of the statute. She stated at para. 164:

This case should not stand for the proposition that parties are not required to reduce their agreement 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 than in the emotional place following the conception and birth of the child. [Emphasis added.]

[65] While there may be cases, such as those cited by Mark, where it is appropriate to enforce an oral agreement notwithstanding the clear terms of the statute, this is not such a case. The statute sets out distinct elements for there to be a valid surrogacy agreement. In this case there was no written agreement before conception (or otherwise), no legal advice, and no consent to relinquish parental entitlement. Unlike in Re: K.G., there was no surrender of B.G. to Mark at birth. This case is far from being on consent. This Court is not prepared, in the face of the clear requirements of the statute and on these facts, to find that the partial oral agreement between Jane and Mark is a valid surrogacy agreement which should be enforced.

ISSUE 2: WHO IS ENTITLED TO A DECLARATION OF PARENTAGE?

[66] Mark seeks a declaration that he is B.G.’s sole parent and that Jane is not a parent. He submits that the Court should use section 13 of the CLRA to make this declaration.

[67] Jane seeks a declaration that Samantha is a parent of the child and that Samantha, Jane, and Mark be listed as parents on the child’s birth registration. I understand this to mean that she seeks a declaration that both parties and Samantha are parents under the CLRA. In other words, so long as she and Samantha are found declared to be parents, she is consenting to Mark also being declared to be a parent.

A. Relevant Provisions of the CLRA

[68] The following provisions of the amended CLRA are relevant to the declarations of parentage sought:

1. Definitions and interpretation, Part 1 – (1) Definitions – In this Part,

“birth parent” means, in relation to a child, the person who gives birth to the child;

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

“spouse” means the person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage;

“surrogate” means a person who agrees to carry a child conceived through assisted reproduction if, at the time of conception, the person intends to relinquish entitlement to parentage of the child, once born, to one or more persons.

5. Provision of reproductive material, embryo, not determinative – 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.

6. (1) Birth Parent – The birth parent of a child is recognized in law to be a parent of the child.

(2) Exception, surrogacy – Subsection (1) is subject to the relinquishment of an entitlement to parentage by a surrogate under section 10, or to a declaration by a Court to that effect under section 10 or 11.

8. Birth parent’s spouse, if assisted reproduction or insemination by sperm donor – (1) Assisted reproduction – If the birth parent of a child conceived through assisted reproduction had a spouse at the time of the child’s conception, the spouse is, and shall be recognized in law to be, a parent of the child.

9. (1) Declaration of parentage general -- 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.

(2) Exception, adopted child -- Subsection (1) does not apply if the child is adopted.

(3) Declaration -- 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.

(4) Restriction -- Despite subsection (3), the court shall not make any of the following declarations of parentage respecting a child under that subsection unless the conditions set out in subsection (5) are met:

1. A declaration of parentage that results in the child having more than two parents.

2. A declaration of parentage that results 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 section 7, 8 or 9.

(5) Conditions -- The following conditions apply for the purposes of subsection (4):

1. The application for the declaration is made on or before the first anniversary of the child’s birth, unless the court orders otherwise.

2. Every other person who is a parent of the child is a party to the application.

3. There is evidence that, before the child was conceived, every parent of the child and every person in respect of whom a declaration of parentage respecting that child is sought under the application intended to be, together, parents of the child.

4. The declaration is in the best interests of the child.

B. Jane is a parent of B.G.

[68] Under section 1 of the CLRA, Jane is a “birth parent” by virtue of having given birth to B.G.

[69] Jane is also a “surrogate” under the wording of section 1 of the CLRA. This is so because I have found that she agreed to carry a child conceived through assisted reproduction and, at the time of conception, intended to relinquish entitlement to parentage. However, this Court has also found that the partial oral agreement did not constitute a valid surrogacy agreement under section 10 of the CLRA. This finding is crucial in the analysis under section 6(2).

[70] Under section 6(1), as set out above, a birth parent is and shall be recognized in law to be a parent of the child, unless, under subsection 6(2), there is a relinquishment of entitlement to parentage under section 10 or 11 of the CLRA, or a Declaration by the Court to that effect.

[71] Jane gave birth to B.G. and is thus a birth parent of B.G.

[72] Jane did not relinquish entitlement to parentage under section 10 or 11 of the CLRA.

[73] As there was no valid surrogacy agreement, there is no jurisdiction for the Court to make any declaration under section 10 (set out at para. 39, above) that would have the effect of denying parentage of B.G to Jane, under section 10(7) of the CLRA. Section 11 of the CLRA does not apply as it related to circumstances where there would be four or more parents.

[74] Accordingly, Jane is a parent of B.G., by operation of section 1 and 6 of the amended CLRA.

C. Section 13 should not be used to deny parentage to Jane

[75] Mark seeks a declaration that Jane is not a parent of B.G.

[76] Any authority under the CLRA to declare a person to not be a parent falls within section 13 of the amended Act. While, as will be seen below, the authority to make declarations of parentage under section 13 is quite constrained, there are no statutory conditions or constraints set out in the CLRA regarding when it would be appropriate to make a declaration that a person is not a parent.

[77] However, as seen, the requirements for a valid surrogacy agreement, under which a birth parent may be deprived of entitlement to parentage, are strict. This is, in my view, wholly appropriate. Entitlement to parentage should not be denied except in narrow circumstances. The legislature has put in place numerous safeguards to ensure that in the surrogacy context, the vulnerabilities of the birth parent are recognized. If there is no valid surrogacy agreement, I have difficulty envisaging other circumstances which would lead the Court to make a declaration of non-parentage under section 13, unless, for example, the Application were to be on the consent of the parties. There is of course no such consent here.

[78] Having found that there was no valid surrogacy agreement in this case, this Court is not prepared to make any declaration under section 13 of the CLRA that would deprive Jane of the entitlement to parentage which she is clearly entitled to under section 6 of the Act.

D. Samantha is a parent of B.G.

[79] As seen, section 1 defines “spouse” as the person to whom a person is married or with whom the person is living in a conjugal relationship outside marriage.

[80] Under section 8(1), the birth parent’s spouse at the time of conception of the child is and shall be recognized to be a parent of the child.

[81] The evidence was that Jane and Samantha have lived together since 2012, that they are in a spousal relationship, and that they were in a spousal relationship at the time that B.G. was conceived.

[82] Accordingly, Samantha is a parent of B.G. by operation of sections 1 and 8 of the amended CLRA.

[83] Mark did not seek an Order declaring Samantha not to be a parent of B.G. Had that claim been advanced, the same analysis would apply as set out above with respect to Jane. Samantha is entitled to parentage under section 8 of the CLRA. This Court would not have been prepared to use section 13 of the CLRA to deprive her of that entitlement to parentage.

E. Mark is a parent of B.G.

[84] Section 5 of the amended CLRA, as seen, provides that a person will not be found to be a parent because of the provision of reproductive material unless he or she is otherwise a parent under Part 1 of the CLRA.

[85] Section 13 of the CLRA, which is awkwardly constructed, provides that any person may apply to be a parent, and that if the Court finds on a balance of probabilities that a person is a parent, the Court may make a declaration to that effect. However, there are certain conditions where such a declaration of parentage would result in the child having more than two parents. In such instance, the Court may not make a declaration of parentage in favour of the Applicant unless: the Application is made before the child’s first birthday; every other parent is a party to the Application; before the child was conceived, all would-be parents intended to be, together, the parents of the child; and, the declaration is in the best interests of the child.

[86] The application of sections 5 and 13 of the CLRA leads to an outcome which is unsatisfactory on the facts of this case, and, as I will discuss further, not at all in the best interests of B.G.

[87] Under section 5, Mark is not a parent by virtue only of the provision of reproductive material to Jane.

[88] This Court cannot declare that Mark is a parent under section 13. First, a declaration of parentage in his favour would result in there being more than two parents of B.G., so the conditions set out in section 13(5) must be met. Second, in applying those conditions it is clear that although the Application was made before B.G.’s first birthday (indeed, the Application was brought before she was born), and although it would be in her best interests as I will set out below, the parties did not intend before the conception of B.G to parent together, and Samantha was not a party to the proceeding.

[89] The parentage provisions enacted by the legislature through the All Families are Equal Act, were, as stated by the Honourable Mr. Yasir Naqvi as set out above, intended to foster equality and inclusion, and to ensure that all children are treated equally. As Mr. Naqvi indicated, a core purpose was to ensure that “parents … are able to care and provide love for their children the way we have always, always done.”

[90] The application of the amendments to the facts of this case does not achieve the purposes articulated by Mr. Naqvi. Rather, those amendments would deny parentage to Mark, who, while there was no valid surrogacy agreement, provided reproductive material to Jane always intending that he would parent the child to whom Jane gave birth. While I have found that the partial agreement reached by the parties did not constitute a valid surrogacy agreement, Mark has not wavered from his preconception intention to parent B.G. I have found that it was Jane who changed her mind about the original partial oral agreement when it became apparent that Samantha was not pregnant. Mark did not make a “donation” or “gift” of reproductive material to Jane. He thought he was providing material for his own reproductive use.

[91] It is important to note that the legislation did not come into effect until January 1, 2017. The parties were discussing their plans in 2013 and 2014. Their partial oral agreement was reached in 2014. Even if they had consulted counsel for legal advice on their plans, counsel could not have advised on the proper course to follow under the new legislation, as it did not yet exist. Although there are no transitional provisions in the legislation, it is in my view relevant that due diligence by the parties would not necessarily have led to compliance with the new legislation.

[92] Further, functionally speaking, Mark has been parenting B.G. since December 2016 when access was awarded on a Motion. He has parented B.G. from Thursday to Saturday, each week without interruption, week after week since the end of January 2017. As I will discuss more fully below, all of the evidence is that he is a loving, devoted, attentive parent to B.G. and that she is the light of his life. It cannot be the correct outcome that -- having provided reproductive material intending to be a parent, and having functionally been a loving parent to B.G. for almost a year -- he be deprived of an entitlement to parentage based on legislative provisions on which he could not have received legal advice when the original partial agreement was made.

i. The Importance of Parentage

[93] Being a “parent” is much more than just a label. Indeed, a declaration of parentage shapes the identity of both the child and the parent not only as individuals, but in relation to one another in a lifelong, deeply meaningful way.

[94] In A.A. and B.B., 2007 ONCA 2, the late Justice Rosenberg set out the following important dimensions of a declaration of parentage at para. 14:

(a) the declaration of parentage is a lifelong and immutable declaration of status; (b) it allows the parent to fully participate in the child’s life; (c) the declared parent has to consent to any future adoption; (d) the declaration determines lineage; (e) the declaration ensures that the child will inherit on intestacy; (f) the declared parent may obtain an OHIP card, a social insurance number, airline tickets and passports for the child; (g) the child is a Canadian citizen, even if born outside of Canada (Citizenship Act, R.S.C. 1985, c. C-29, s.3(1)(b)); (h) the declared parent may register the child in school; and (i) the declared parent may assert his or her rights under various laws such as the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., s. 20(1)(5).

[95] Further, Justice Rosenberg noted at paragraph 15, “A declaration of parentage provides practical and symbolic recognition of the parent child relationship.”

[96] It could perhaps be argued (although it was not) that a declaration of parentage for Mark is not necessary for him to have an involved and loving parenting role with B.G. under other sections of the CLRA that provide for custody and access. This Court would reject such an argument. The declaration of parentage speaks to status and identity of both parent and child. The value of such a declaration – both to the parent and the child – extends beyond the parenting terms available through “custody” and “access”.

ii. Parens Patriae Jurisdiction

[97] In A.A., cited above, Justice Rosenberg utilized the Court’s parens patriae jurisdiction to grant a declaration of parentage to C.C., where the CLRA at that time did not permit more than two persons to be parents of a child. Justice Rosenberg found that the legislature, which had enacted the CLRA to address the issue of “illegitimacy” did not foresee the possibility of declarations of parentage for two women.

[98] Justice Rosenberg held that the Court’s parens patriae jurisdiction may be invoked to rescue a child in danger or to bridge a legislative gap: see para. 27. He also noted that he was not foreclosing the possibility that parens patriae jurisdiction might also be exercised where there is no legislative gap, but where the exercise of that jurisdiction is the only way to meet the paramount objective of the legislation, as was held by Justice Czutrin in R.(C.) v. Children’s Aid Society of Hamilton, [2004] O.J. No. 3301. See also B. (A.C.) v. B.(R.) 2010 ONCA 714 at para 28.

[99] As set out in A.A., in Re Eve, [1986] 2 S.C.R 388, Justice LaForest of the Supreme Court of Canada reviewed the exercise of parens patriae jurisdiction, concluding at para. 426:

As Lord MacDermott put it in J. v. C., [1970] A.C. 668 at p. 703, the authorities are inconsistent and there are many twists and turns, but they have ‘inexorably moved towards a broader discretion, under the impact of changing societal conditions and the weight of opinion…’ In other words, the categories under which the jurisdiction can be exercised are never closed… the jurisdiction of a very broad nature, and [that] it can be invoked in matters such as custody, protection of property, health problems, religious upbringing and protection against harmful associations. The list, he notes, is not exhaustive. [Emphasis added.]

[100] In Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716, the applicable legislation did not give potential adoptive parents a right of appeal from the Director’s action taken during a probationary period. Justice Wilson found that there was a legislative gap in that case, and turned to parens patriae jurisdiction to address that gap. She cited Lord Wilberforce’s statement that: “[t]he Court’s inherent power is always available to fill gaps or to supplement the powers of the local authority”: see A.A. at para. 30.

[101] In A.A., Justice Rosenberg noted that the determination in that case of whether there was a legislative gap required a consideration of whether the CLRA at that time was intended to be a complete code and whether it intended to confine declarations of parentage to biological relationships. Reviewing other aspects of the statute, he held that it did not. Ultimately, the Court in A.A. held that it would be contrary to the best interests of the child D.D. to be deprived of the legal recognition of parentage of one of his mothers.

[102] In this case, B.G. does not need to be “rescued”. Rather, the question is whether there can be said to be a legislative gap, or possibly whether, following Justice Czutrin in R.(C.) v. Children’s Aid Society of Hamilton, the exercise of the Court’s parens patriae jurisdiction is required to achieve the paramount purposes of the amended legislation.

[103] In my view, the amendments to the CLRA as they concern parentage, while they appear comprehensive, have left several “gaps”. In particular, the gaps include: circumstances such as this case where all of the significant “facts” preceded the entry into force of the legislation; and, where a party provided reproductive material, not as a “gift” or “donation” but for his own reproductive use, and has acted as a parent subsequent to the child’s birth.

[104] Prior to the enactment of the amendments, it would have been possible to Mark to be declared a “father” of B.G. under the CLRA. The prior sections read as follows:

Paternity and maternity declarations

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.

Declaration of paternity recognized at law

(2) Where the court finds that a presumption of paternity exists under section 8 and unless it is established, on the balance of probabilities, that the presumed father is not the father of the child, the court shall make a declaratory order confirming that the paternity is recognized in law.

Application for declaration of paternity where no presumption

5. (1) Where there is no person recognized in law under section 8 to be the father of a child, any person may apply to the court for a declaration that a male person is his or her father, or any male person may apply to the court for a declaration that a person is his child.

Declaration

5. (3) Where the court finds on the balance of probabilities that the relationship of father and child has been established, the court may make a declaratory order to that effect and, subject to sections 6 and 7, the order shall be recognized for all purposes. [Emphasis added.]

[105] In my view, the fact that the parentage sections of the amended CLRA do not permit a recognition of parentage for Mark constitute a legislative gap. It is contrary to the best interests of B.G. that she be deprived the legal recognition of the parentage of Mark, who is biologically, emotionally, and functionally a parent to her, and a loving, devoted parent at that. Moreover, given that Jane included in her “Order Sought” that Mark be listed as the child’s father on the birth registration, Jane is consenting to Mark being declared to be a parent. I find that there is no other way to fill this gap than to exercise the Court’s parens patriae jurisdiction.

[106] Further, as I have set out above, the purposes of the amendments to the CLRA as introduced were equality, inclusion, and to ensure that “parents … are able to care and provide love for their children the way [they] have always, always done” (see para. 89 above).

[107] If I am wrong in this determination and there is no legislative gap, I find that utilizing the Court’s parens patriae jurisdiction in this case is the only way to achieve the paramount purposes of the legislation: see R.(C.) v. Children’s Aid Society of Hamilton; A.A. and B.B.; and B. (A.C.) v. B.(R.), all cited above.

[108] I note, additionally, that section 97 of the Courts of Justice Act, R.S.O., 1990, c. C.43, permits the Superior Court of Justice to make binding declarations of right, whether or not any consequential relief is or could be claimed. In R. (J.) v. H. (L.), 2002 CarswellOnt 3445, Justice Kitely of the Superior Court relied on this section, rather than on parens patriae jurisdiction to make a declarations in respect of parentage where the parties’ circumstances were not covered by the terms of the CLRA. She stated:

The right to know whether or not one is a parent of a child is of such significance that the issue may be the subject of a declaratory order under section 97 of the Courts of Justice Act.

[109] She went on to comment that while there is no requirement that the best interests of the child be considered in a case in which declaratory relief is sought, in that case the declarations sought were in the children’s best interests. So too I find in this case. If I am wrong in utilizing the Court’s parens patriae jurisdiction, I would use the declaratory power under section 97 of the Courts of Justice Act to declare that Mark is a parent to B.G.

F. Conclusion on Parentage

[110] Based on the foregoing, this Court finds that Jane, Samantha, and Mark are parents of B.G. The declaration is set out in the Order below.

ISSUE 3: WHAT PARENTING ARRANGEMENTS ARE IN B.G.’S BEST INTERESTS?

[111] In the alternative to a declaration that he is the sole parent of B.G., Mark sought an Order that he have sole custody of B.G., that B.G reside with him, and that B.G. have no access to Jane. He essentially made two arguments in support of this outcome: that the quality of care, supervision, housekeeping and hygiene in Jane’s home is poor; and that the circumstances and behaviours of Jane’s 16 year-old daughter Georgia render the home unsafe and inappropriate for B.G.

[112] Jane sought an Order that she have sole custody and primary residency of B.G., and that Mark have specified access on alternate weekends as well as holiday access. She also sought an Order that Mark communicate with her and with Samantha about B.G.

A. Findings of Fact Related to Parenting

[113] I make the following findings of fact related to parenting, based on the evidence in this proceeding:

i. Mark and Jane are both loving parents

[114] First, and perhaps most importantly B.G. is a thriving, happy, beautiful little girl. While she was “petite”, she is healthy and reaching her milestones. As Mark said in his testimony, B.G. is “happy”, she “is where she should be” and there are “no concerns” about her. This is, of course, wonderful.

[115] Both Mark and Jane love and adore B.G. Both want what they believe is best for her. Based on the evidence, both parents offer caring – though different – environments.

[116] As set out above, Mark is a loving and devoted father. He lives alone except from Thursdays to Saturdays when B.G. has been residing with him. He lives in a well-kept apartment in Cambridge, Ontario. Mark is, according to witnesses, neat, tidy, and organized. Photos of an immaculate home environment were entered into evidence (albeit from before B.G. was born).

[117] Mark’s parents live in Quebec and are thus not able to spend significant time with Mark and B.G. However, Mark has a close network of caring friends who are supportive to him and have loving relationships with B.G.

[118] Mark offers B.G. a stable, caring environment. In his own words, he will be there to support B.G. “every step of the way.”

[119] Jane is a loving and devoted mother. She has lived with her spouse Samantha since 2012. Jane’s three other children, Tommy (age 13), Matthew (age 7), and Georgia (age 16), live with Jane and with their father Peter, on a week-on/week-off arrangement. Jane and Samantha have two dogs who can be messy and rambunctious. Jane’s home is appropriate, but a bit disorganized and chaotic. A friend testified that her home is in a state of “loving chaos”.

[120] Mark lived with Samantha and Jane for a couple of months in the spring of 2016. Mark testified that the house was messy, that dishes were piled up, and that the dogs peed on the floor. The CAS worker, whose testimony I describe further, below, had no concerns regarding Jane and Samantha’s home.

[121] When B.G. is in Jane’s care, Jane likes to take B.G. for long walks, and to the YMCA. B.G. also has a library card, and Jane takes her to the library regularly. B.G. spends time with her siblings at Jane and Samantha’s home.

[122] Jane’s parents and siblings live in Quebec, so Jane does not see them frequently. Samantha’s extended family lives close by, and B.G. has been able to spend time with her grandmothers on Samantha’s side and her great-grandmother.

[123] In July 2017, Jane and Samantha moved to their current address. Jane testified that this was to live closer to Mark.

(ii) B.G. has been well cared for by Jane and Samantha

[124] Mark and several of his witnesses testified that when he picks up B.G., B.G. is not clean and that he feels he has to bathe her and change her clothes right away. He said she sometimes smells when he picks her up. He raised an issue regarding the pumped milk being “off” when provided to him, saying it was often curdled and foul. He stated that B.G. sometimes has rashes when he picks her up. Mark also expressed concern about B.G.’s slow weight gain.

[125] Jane regularly takes B.G. to the family doctor, Dr. Bulanski, and to the pediatrician, Dr. Mantynen. Nothing in the records of either physician suggests anything other than that Jane is an attentive, careful parent. On March 9, 2017, Dr. Bulanski told Samantha she was concerned about B.G.’s weight gain, hence a referral to Dr. Mantynen. On April 27, 2017, Dr. Mantynen recorded that “she is developmentally normal. Growth parameters reveal short stature with less than 3rd percentile for height. Weight for height is at the 50th percentile… Patient is not failing to thrive. She does have short stature however.” On September 5th, 2017, Dr. Mantynen noted that B.G. was happy, smiling, and active, and normal for height and weight.

[126] In the records entered into evidence, there were no notations by either Dr. Bulanski or Dr. Mantynen expressing any concern with B.G.’s cleanliness or state of dress, nor was there concern that anything Jane was or was not doing was related to B.G.’s initially slow weight gain.

[127] Nor did the CAS worker, Mr. Hoffer, whose evidence I discuss more fully below, raise any concerns regarding Jane or Samantha’s instrumental care of B.G. Asked specifically whether he had observed that the home was messy, that dishes were piled up, or that there was dog urine on the rug, Mr. Hoffer clearly stated that he had not.

[128] On the evidence I find that while Mark, who lives alone, with no other children in his care, might have a more pristine environment than Jane does, B.G. has been well cared for by Jane and Samantha in their bustling home with three other children and two pets.

(iii) There have been some disciplinary issues with Jane’s two sons

[129] There have been issues with discipline of Matthew and Tommy in Jane’s home and Tommy has shown defiant and angry behavior. The boys do not always want to do their chores. Mark testified that he saw Tommy kick Samantha and that he heard Tommy say “die, die.” This appears to have been before Jane was pregnant.

[130] I believe Mr. Hoffer’s testimony that when things became particularly escalated with Georgia, they spilled over, and Tommy became challenging as well. At that time, the agency offered supports to help with routines for the boys. He noted that children may challenge the rules where they see an older sibling, such as Georgia, doing so.

(iv) Jane and Samantha have acted protectively and supportively with respect to the mental health and addictions issues of Jane’s daughter, Georgia

[131] Jane’s daughter Georgia is 16 years old and has serious behavioural, mental health and addictions issues. It was implied that these issues were somehow Jane’s fault through poor parenting, or due to the timing of her separation from Peter and partnering with Samantha.

[132] It became clear during the Trial that the issues faced by Georgia arose after Georgia was sexually assaulted by multiple perpetrators when she was approximately 12 years old. This coincided with her parents, Jane and Peter, separating.

[133] Georgia experiences mental health issues including PTSD and anxiety. She has had addictions to substances including alcohol and illicit drugs. She has had relationships with much older men. Some have paid for sex with her even though she is a child.

[134] On one occasion Jane found drugs in Georgia’s room.

[135] A photo still from a video posted on Facebook on November 7 (presumably 2016) shows Georgia appearing to smoke a drug, with the caption “Hanging out with [B.G.] while smoking meth.” B.G. is not in the photo. The photo was brought to the attention of the CAS worker during the Trial by Mark’s lawyer. While obviously concerning, the photo was almost a year old as of the date of the Trial and in the intervening period, Georgia spent six months in a residential drug treatment program.

[136] Since these issues began, Jane and Samantha have supported Georgia to receive services through organizations such as CAIP, CAMH in Toronto, and most recently through Portage. Jane and Samantha sought the assistance of the CAS which has worked with the family on a voluntary basis to support Georgia and the family at large. The CAS worker Mr. Hoffer testified that Jane has attended programs including CONNECT and Ray of Hope to learn how best to support Georgia through the addictions and other issues she has been experiencing. He testified that Jane also attended Plan of Care meetings with the agency.

[137] Georgia was released from Portage on July 18, 2017. Shortly before her release, while on a compassionate leave, she tested positive for THC when she returned to the facility. Jane told Mr. Hoffer of the CAS about this. Mr. Hoffer was aware of this incident, and stressed that Georgia is striving to maintain sobriety.

[138] Jane is optimistic that Georgia is no longer using drugs. Mark is concerned that Georgia may still have addiction and mental health issues. Records from Portage, admitted into evidence, show that Georgia struggled during her six months at Portage. There is reason to be concerned that Georgia may not yet be entirely well.

[139] Mr. Hoffer testified that Jane and Samantha are loving parents who have gone to great lengths to support Georgia. He testified that that they have acted protectively with all the children, including B.G., when things have been difficult with Georgia.

[140] Mr. Hoffer indicated that Jane and Samantha work cooperatively with Jane’s ex-spouse, Peter, who is Tommy and Matthew’ father. For example, in December 2016, shortly before the commencement of Georgia’s six-month placement at Portage, there was an incident during which Georgia had not taken her medication, became aggressive, and threatened Samantha. Samantha immediately locked herself and B.G. in the bathroom, while Jane called the police and the CAMH distress line, and arranged for Peter to pick up Tommy and Matthew. Mr. Hoffer noted that at all times Jane and Samantha acted protectively. I have no reason to doubt Mr. Hoffer’s evidence. He testified in a straightforward and understated manner.

[141] Jane has requested that the CAS stay involved even though Georgia is over 16, and the agency has agreed to do so to support the family. All involvement has been on a voluntary basis, arising from Jane reaching out to the CAS. Mr. Hoffer indicated that the CAS has not made a requirement that Georgia’s time with B.G. be supervised. Jane testified that she does not permit Georgia to be alone with B.G. and that there is always an adult there when Georgia spends time with B.G. I believe this evidence.

(v) Communication between Mark and Jane has not been effective

[142] Communication between Jane and Mark has been virtually non-existent. This is not for lack of trying on Jane’s part.

[143] Asked whether he and Jane communicated with one another, Mark responded, “Not really.”

[144] Jane attempted to communicate with Mark about B.G. through the use of a communication book which she sent with B.G. for all parenting time with Mark. Between January 12, 2017 and September 7, 2017, Jane and Samantha shared information about how B.G. was doing, including entries about what B.G. ate, activities she had been involved in, and medical information. For example, the communication book contained entries such as the following:

Opening Entry: In the purpose of [B.G.’s]’s health and well-being this journal is created to communicate important informations (sic) about [B.G.]. between her maman (Jane), her mom (Samantha) and her dad (Mark).

Feb 3rd – Feb 9th 2017: teething, runny nose, 4 months vaccines done Monday. Pick up 4pm Thursday; drop off 4 pm Saturday. (~50 oz breast milk sent)

April 2nd to 6th Pick up 15:55; drop off 4:05.

• pooped on Sat, 2x Tues and 2 x Thursday
• Bath on Sun after swimming, Tues. + Thur.
• Brought [B.G.] to see her Doctor, she has bronchitis. We (Jane and Samantha) have picked up and started using her prescribed medication
• [B.G.] ate well this week.
• sent medication w/ father
• Medication: Ventolin (novo-salbutamol HFA)
• when [B.G.] is wheezing give 1 puff using infant air chamber. Hold mask for 10 seconds. Repeat every 4 – 6 hours. Last intake was given @ 12:30 pm on Thursday. Explained to father as well when [B.G.] was picked up.

June 3rd – June 8 2017 pu: 3:55 DO: 3:55: [B.G.] had a very good week! She is drinking formula on a daily basis with still some breast feeding. She eats a variety of food and texture. She is trying really hard to crawl forward with some help she can no problem. She slept well and went for a walk every day.

[145] When Mark was asked about his use of the communication book, he acknowledged that he did not use the book and that he did not really look at it. He stated that the book was not about his child. He objected to the fact that the book referred to three parents, which from his perspective was not accurate.

[146] This Court finds that the approach taken by Mark to the communication book was not child-centred. While he may have been trying to act consistently with his position that he was the only parent of B.G., he should have been focused on receiving the information about B.G. which may have been relevant to his care of her on any particular day, and of providing information to Jane, which again, may have assisted her in caring for B.G. Irrespective of Mark’s position in the litigation, the reality is that B.G. was being parented five days out of every seven in Jane’s home. He should have wanted to receive information from Jane and Samantha about B.G., and he should have shared information arising from his parenting time with B.G.

(vi) Parental smoking is not relevant in this case

[147] Jane smoked during her pregnancy with B.G. She stated that she received medical advice that it was better to cut back than to completely quit during the pregnancy. It was implied that her continuing to smoke was consistent with the intention not to be a parent to B.G (and therefore supportive of the existence of a surrogacy agreement). I have already found that there was no valid surrogacy agreement.

[148] Jane continues to smoke. I believe her evidence that she only smokes outside the home.

[149] Mark also smokes, although he indicated that he tried to stop with Jane. He was not asked about whether he smokes inside the home.

[150] I do not find that either parent smoking is relevant to the determination of the appropriate parenting arrangements in this case.

(vii) The parties have not agreed on B.G.’s name

[151] Jane and Mark each call B.G. a different name. The Court is very concerned about this. Over the long term, this may cause distress and confusion.

[152] Jane calls the child Faelynn and has done so since B.G. was born. This was a name she picked out before the child’s birth and apparently derives from B.G.’s grandmother’s first name.

[153] Mark calls the child Olivia and has done so since he began to have parenting time with her in December 2016. This was a name he picked out before the child’s birth as well.

B. The Law on Custody and Access in the Context of this Case

[154] Having found that Jane, Samantha, and Mark are the parents of B.G., the following sections of the CLRA, govern the determination of parenting arrangements in respect of B.G:

Entitlement to custody

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

Where parents separate

(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

Marriage of child

(6) The entitlement to custody of or access to a child terminates on the marriage of the child.

Entitlement subject to agreement or order

(7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement.

Application for custody or access

21 (1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

Merits of application for custody or access

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).

Best interests of child

(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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

(i) The Maximum Contact Principle

[155] Under section 16(10) of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.), in making an Order for custody, the Court shall give effect to the principle that the child should have as much contact with each spouse as is consistent with the best interests of the child, and for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[156] It is well established that the maximum contact principle is also relevant to the application of section 24 of the CLRA. See Borsfai v. Hyde, 2015 ONCJ 117. As stated by Justice McLachlin in Gordon v. Goertz, [1996] 2 S.C.R. 27, 1006 CarswellSask 199, at para 25: “Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.” (see para. 25).

[157] Maximum contact is limited to contact consistent with the child’s best interests. As noted in Young v. Young, 4 S.C.R. 3 at para 91, “[t]he only circumstance in which contact with either parent can be limited is where the contact is shown to conflict with the best interests of the child.”

(ii) The Status Quo

[158] In determining the parenting arrangements that are in the best interests of a child, the status quo that the child has known is an important consideration. This is seen in section 24 of the CLRA itself, which requires, among other things, a consideration of “the length of time the child has lived in a stable home environment.”

[159] In Gordon v. Goertz at para. 121, Justice L’Heureux-Dubé stressed the importance of the status quo in determining the parenting arrangements which are in the best interests of a child:

The assessment of the child's best interests also involves a consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child's relationship with his or her psychological parent has long been recognized by this court on a number of occasions (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165 at p. 202; Racine v. Woods, supra, at p. 188: King v. Low, [1985] 1 S.C.R. 87, at p. 101). There is a growing body of evidence that this relationship may well be the most determinative factor on the child's long-term welfare. As I mentioned in Young, supra, at p. 66, the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature:

Goldstein, Freud and Solnit's Beyond the Best Interest of the Child, supra, while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child's relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent. [Emphasis in original.]

[160] Citing the passage above from Gordon v. Goertz, Justice Jackson in Haider v. Malach (1999), 48 R.F.L. (4th) 314 (Sask. C.A.) found those principles equally applicable to custody and access cases as to child protection cases, stating as follows at para. 83:

While the cases to which L'Heureux-Dubé J. mentions are ones involving a biological parent and a government agency, the principle she cites appears in custody cases at the appellate level as well. The principle is referred to variously as "maintaining the relationship with the psychological parent" or "maintaining the status quo" or simply "maintaining stability" in the child's life. However one describes the principle, the Court's response is the same. (Emphasis added.)

(iii) Any Familial Relationship, Within the Meaning of CLRA section 24(h)

[161] As seen above, section 24(h) of the CLRA provides that a consideration in determining the custody and access arrangement that is in the best interests of a child is “any familial relationship between the child and each person who is a party to the application.”

[162] Prior to the enactment of the amendments to the CLRA, section 24(h) read as follows:

(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application.

[163] In M.R.R. v. J.M., cited above, at paragraphs 48 and 49 of her decision Justice Fryer quoted from the Minutes of Settlement in Grand v. Ontario, 2016 ONSC 3434, the litigation which led to the introduction of the amendments to the CLRA. She found that the Minutes of Settlement are instructive in understanding the legislative amendments that were enacted. In those Minutes, the Attorney General of Ontario agreed to introduce a Bill with amendments informed by principles including the following:

Pre-conception intention to parent to be recognized as a factor in determining best interests under section 24(92)(h).

[164] The current wording of section 24(h), that the Court consider “any familial relationship between the child and each person” is broader than the principle that “pre-conception intention to parent” be recognized as a factor under section 24(h). No reported cases have as yet interpreted the amended section 24(h) in a context similar to this case. However, I have no difficulty concluding that “familial relationship” may encompass and include pre-conception intention to parent a child.

(iv) Restrictions on Parenting Time/ Access

[165] Consistent with the principle of maximum contact, set out above, restrictions on parenting time – whether in the form of supervised access, or much more rarely, in the form of a no access Order as sought by Mark in this case – are the exception, not the rule. Such restrictions are appropriate only where required in the best interests of the child and are most common where there is a serious concern about the child’s safety or the appropriate conduct of a parent or family member during the parent’s parenting time. Courts are cautious about restricting access for indefinite periods of time.

[166] Access is the right of the child, not of the parent. The onus is on a person who seeks to limit access to prove that a proposed restriction is in the best interests of the child and will somehow promote the child’s best interests: see Harris v. Harris, 2008 ONCA 743.

[167] Where a child’s parents have been found to be loving and appropriate, and to have acted in a safe and protective manner with respect to the child and other family members, the appropriate focus is on the best parenting schedule and decision-making arrangements for that child, rather than on restrictive terms on parenting time.

C. Analysis and Conclusions Regarding Parenting Arrangements for B.G.

(i) Application of Section 24 of the CLRA

[168] The evidence, including Mark’s own evidence, is that B.G., who was eleven months old when the Trial was heard, is a thriving little girl about whom there are “no concerns”. She has been spending five days per week with Jane and Samantha and two days per week with Mark. All three parents can take credit for their parenting efforts which have led to B.G.’s current state of well-being.

[169] In applying section 24 and the case law under that section, I conclude as follows:

(a) B.G. is well loved by all three of her parents, who all share deep emotional bonds with her and care for her tremendously. In Jane’s household, B.G. enjoys the love of Jane and Samantha, and relationships with three siblings. She also enjoys access to her grandparents, through Samantha. In Mark’s household, she enjoys Mark’s care and love, as well as the love of Mark’s close friends, who are often part of his parenting time.

(b) B.G. has lived most of her young life with Jane and Samantha, who have provided her with a stable home. While that home may be less orderly and tidy than Mark’s home, as suggested by some witnesses, I do not find that surprising given that there are three other children in that home, as well as pets.

(c) Both Mark and Jane are able and willing to provide B.G. with guidance and education and to provide for the necessaries of life. Both are well able to attend to any special needs she may develop. The evidence is that Mark’s home is loving and appropriately set up for B.G., and he testified that he will do anything it takes to give her a good life. Jane’s home is also loving and appropriately set up for B.G. The lengths to which Jane has gone to ensure that Georgia receives the support and programming she requires illustrates that Jane will do what is necessary to support and care for B.G. in the event that she develops special needs. Jane has also shown that she acts protectively with respect to B.G. and the other children as and when necessary. For example, though not required by the CAS, she has ensured that Georgia’s time with the B.G. is always in the presence of a responsible adult. It is Jane who has requested that the CAS continue to provide support to the family. The Court has confidence that should further protective steps be required, Jane would take such steps as are in B.G.’s best interests.

(d) Jane has an appropriate plan for B.G.’s upbringing. Jane has shown that she values Mark’s involvement with B.G., by moving her home closer to his to support a co-parenting relationship. Her plan involves all three parents. This is in B.G.’s best interests.

(e) Mark’s plan was premised on sole parenting and did not involve a continued relationship with Jane, Samantha, B.G.’s siblings, or B.G.’s extended family on Jane and Samantha’s side. This is not in B.G.’s best interests. Having said that, the Court does not doubt that once this decision is made, Mark will adjust his parenting plan for B.G. in a manner that involves all three of her parents. Mark is a loving parent who will parent her appropriately.

(f) Both Jane and Mark offer permanence and stability of their respective family units. Mark is currently not in a domestic partnership. It is possible that what his family looks like may change in the future if he decides to cohabit with a partner. There was no evidence in the proceeding that this is imminent or planned. If and when that occurs the Court does not doubt that he would manage that transition appropriately.

(g) Jane has cohabited with Samantha since 2012. There was some evidence that from time to time they argue and that the issues with Georgia have sometimes put stress on their relationship. However, they presented at Trial as a stable couple, offering a warm and caring environment to B.G. as well as to B.G.’s three siblings.

(h) As set out above, Mark and Jane each have the ability to act as a parent. They will parent differently, but each will parent well, in their own way.

(i) As set out in section 24(h), the Court finds that there are strong familial relationships between B.G. and both Mark and Jane. Mark has intended to parent B.G. since well before her conception. He is also a biological parent. While the oral agreement between the parties is not a valid surrogacy agreement as this Court has found, Mark has not wavered from his intention to parent this little girl.

(j) Jane has a strong familial relationship with B.G. as well. She has intended to parent B.G. since after her conception, and has acted as a parent to her since her birth.

(ii) Parenting Time

[170] The maximum contact principle provides that B.G. should have as much contact with each parent as is in her best interests. This must be implemented alongside the principle that B.G.’s bond and attachment with Jane, who has been B.G.’s primary parent since birth, should be maintained. B.G. will benefit from the differing parenting styles of each parent and from the different home environments.

[171] Mark sought an Order that Jane have “no access” to B.G. Based on the findings I have made with respect to parenting, it should be clear that there is no basis for such an Order on the facts of this case. I understand that Mark is concerned about Georgia. The evidence is, however, that Jane has acted protectively and appropriately to keep B.G. safe and secure. The claim that B.G. should have no contact with the person who has been her primary parent since birth is not reasonable on the facts of this case.

[172] So too it should be clear based on the foregoing that Jane’s claim to reduce Mark’s time from two days per week to alternate weekends only is not reasonable in the circumstances. This would be a dramatic reduction in B.G.’s time with her father.

[173] Based on all of the evidence and the law as set out above, this Court finds that the parenting arrangement which is in B.G.’s best interests, and implements both the maximum contact principle while preserving B.G.’s bond with Jane, is for B.G. to have significant time with both Jane and Mark. This would allow her to benefit from the best that each of her parents has to offer.

[174] B.G. is currently with Mark two days of every seven, from Thursday at 4:00 p.m. to Saturday at 4:00 p.m. The Court heard no evidence to suggest that B.G. is not thriving in this arrangement, or that there is any reason why her time with her father could not be expanded somewhat. At the same time, B.G. is developing well in the current arrangement where she has been primarily in Jane’s care. Any change to increase her time with Mark should balance these factors.

[175] This Court finds that it is in B.G.’s best interests to have an average of three days per week with her father, effective immediately.

[176] The current time with Mark is from Thursday to Saturday. This does not permit either parent to have a full weekend with B.G. The Court has determined that the following schedule is appropriate and in B.G.’s best interests. Under this schedule, B.G. will be with Mark six days every two weeks, the periods of time away from each parent are modest, and each parent has a full weekend.

[177] Commencing Sunday January 7, 2018, on the first Sunday of Week One, B.G. shall reside with the parties as follows:

Week One Sunday at 7:00 p.m. until Tuesday at 7:00 p.m. with Mark Tuesday at 7:00 p.m. until Friday at 7:00 p.m. with Jane Friday at 7:00 p.m. until Sunday at 7:00 p.m. with Mark

Week Two Sunday at 7:00 p.m. until Tuesday at 7:00 p.m. with Jane Tuesday at 7:00 p.m. until Thursday at 7:00 p.m. with Mark Thursday at 7:00 p.m. to Sunday at 7:00 p.m. with Jane

[178] Jane seeks a holiday parenting schedule as well. Mark, in light of his position at Trial that B.G. should have no time with Jane, has not sought a holiday schedule. I have set out a holiday schedule in the Order below, which shares holiday time approximately equally. The holiday schedule shall override the regular schedule.

(iii) Decision-Making for B.G.

[179] Each party seeks an Order for sole custody of B.G. Sole custody refers only to major decisions concerning B.G.’s education, major non-emergency health care, and religion. I heard no evidence that religion is a significant concern for either party, so practically speaking, for B.G., custody is likely to involve significant decisions involving schooling and health care primarily.

[180] Neither party seeks an Order for joint custody.

[181] In any event, an important body of case law has emerged cautioning that joint custody is rarely appropriate where there is significant conflict between the parties or where the parties have an inability to communicate effectively about the child or children. See the Ontario Court of Appeal’s decision in Kaplanis v. Kaplanis, 2005 CarswellOnt 266 at paras. 10 and 11 where the Court set out the following factors:

1. There must be evidence of historical communication between the parents and appropriate communication between them;
2. Joint custody cannot be ordered in the hope that it will improve the communication;
3. Even if both parents are fit custodial parents, this does not necessarily mean that joint custody should be ordered;
4. The fact that one parent professes an inability to communicate does not preclude an Order for joint custody;
5. No matter how detailed the custody Order, there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis; and
6. The younger the child, the more important the communication between the parents.

[182] Neither party requested an Order for parallel parenting, whereby some custodial decision-making could be allocated to each parent. The Court has nevertheless considered this option and finds that it is not appropriate in this case. B.G. needs consistency of decision-making which is best achieved if one parent has final decision-making responsibility on major issues.

[183] In this case, as set out above, Jane has tried consistently to communicate with Mark about B.G. and her needs, through the communication book. Mark acknowledged that he did not really look at the book and the evidence is that he never contributed to it to share information about B.G. relating to when she was in his care. This gives the Court significant concern about his ability to communicate effectively with Jane for the purpose of major decisions regarding B.G.’s care.

[184] It was also clear from the evidence that Mark is very critical of Jane as a parent and housekeeper, and does not respect the efforts she has made to support Georgia through her challenges. This Court is concerned that any Order for joint custody would create conflict between Mark and Jane, given that they parent differently and have quite different home environments. It is not in B.G.’s best interests that there be conflict between her parents.

[185] This Court also observes that Jane has made protective and child-focused decisions for B.G. to date. The records of Dr. Bulanski, B.G’s family physician, show that Jane has sought regular medical care for B.G. The records of Dr. Mantynen, B.G’s pediatrician, confirm same. The evidence indicates that Jane would continue to make sound medical decisions for B.G.

[186] At this stage, there is no evidence regarding educational decisions for B.G. given her young age. However, the evidence is that Jane has made protective, child-focused decisions for her daughter Georgia in the context of significant challenges. This suggests that Jane would similarly make protective and child focused major decisions for B.G.

[187] In the circumstances, this Court finds that the appropriate major decision-making arrangement is that Jane have sole custody of B.G., but that she be required to meaningfully consult Mark about all major parenting decisions in relation to B.G.’s education, non-emergency health care, and religion, in advance. This is subject to the Court’s determination below with respect to the determination of the child’s name. This Court finds that sole custody to Jane is the decision-making arrangement which will best promote B.G.’s interests.

ISSUE 4: WHAT SHALL B.G.’s NAME BE AND HOW SHALL HER NAME AND BIRTH BE REGISTERED?

[188] As noted above, B.G.’s parents have referred to her by different names for the duration of her short life. Jane has referred to her as “Faelynn A. C.” since her birth now a year ago. Mark has referred to her as “Olivia M. L.” In their respective Orders sought, each refers to the child by the name he or she prefers.

[189] Mark seeks a number of procedural Orders related to the registration of the child’s name. He does not directly seek an Order specifying or changing the child’s name, but this Court infers from his request that the Court make an Order that he is the parent of “Olivia M. L, also known as Faelynn A. C.”, that he also seeks an Order directing that the child’s name be Olivia M. L. In his pleadings the child was referred to as Baby Doe.

[190] Jane does not seek any specific relief with respect to the child’s name, but seeks an Order that the birth registration show all three parents, as this Court has determined, as the parents of “the child.” Her Orders sought refer to the child by the name “Faelynn A. C.”

[191] The evidence tends to indicate that B.G.’s birth, and therefore her name, may not have been successfully registered in Ontario.

[192] Two documents related to registration of birth were in evidence in the proceeding:

(a) a confirmation of submission of a Notice of Live Birth, dated October 3, 2016. This document shows Jane as the mother and sets out information about B.G. such as her birthweight, but does not specify a name for B.G. (b) a print-out showing submission of the child’s birth registration, dated October 28, 2016. The document states “Your child’s birth registration has been successfully submitted to our office. It may take approximately 6 to 8 weeks to complete the process from the time you submit your birth registration.” The document shows that Jane applied for a birth certificate. There was no birth certificate in evidence (although Jane filed copies of B.G.’s OHIP card, YMCA card, and library card).

[193] Both documents showed efforts to file information online. Mark testified that these documents were submitted by Jane. He indicated that he had also tried to register the child’s birth but was told that the birth would not be registered until a judge had made an Order. He stated that it was his understanding that the registration of B.G.’s birth is on hold. Jane did not testify about this issue. The analysis below proceeds on the basis that B.G.’s birth registration has not yet been successfully completed, although it was submitted by Jane.

[194] Samantha is not a party to the proceeding but is a parent of B.G. There is no formal indication of her position with respect to B.G.’s name, although in her testimony she referred to B.G. as “Faelynn”, as does Jane. At no point did she state that she did not support Jane’s position with respect to B.G’s name being “Faelynn A. C.”

(i) Determining B.G.’s Name as an Incident of Custody

[195] If it is correct that the registration of B.G.’s birth has not yet been completed, B.G.’s name has not yet been determined in a formal sense and registered under the Vital Statistics Act, R.S.O. 1990, c. V.4.

[196] At its most basic, then, there is a question as to what B.G.’s name should be.

[197] The issue of determining a child’s name is an incident of custody. The Court has authority to determine incidents of custody.

[198] This issue was recently canvassed in detail by Justice Finlayson of the Ontario Court of Justice in Roy-Bevington v. Rigden, 2017 ONCJ 730.

[199] As noted by Justice Finlayson, two sections of the CLRA are applicable in relation to this issue: sections 21 and 28.

[200] Section 21 of the CLRA reads as follows:

21. APPLICATION FOR ORDER – (1) A parent of a child or any other person including a grandparent may apply to a Court for an Order respecting custody of or access to a child or determining any aspect of the incidents of custody of the child. [Emphasis added.]

[201] Section 28 of the CLRA reads as in part as follows:

28. POWERS OF THE COURT – (1) The Court to which an Application is made under section 21,

(a) by Order may grant the custody of or access to a child to one or more persons;

(b) by Order may determine any of the incidents of the right to custody or access. [Emphasis added.]

[202] As set out above, the merits of an Application in relation to custody or access are to be determined on the basis of the best interests of the child, considering the factors enumerated in section 24 of the CLRA. Those factors include but are not limited to the love, affection and emotional ties between the child and each person applying for custody; and familial relationships between the child and each person applying for custody.

[203] In Roy-Bevington, at para. 19, Justice Finlayson set out considerations where relief is sought in relation to a child’s name. The following considerations are applicable in this case:

(a) In cases where custody is not finally resolved, the parent wishing to apply for a name change must have a claim for custody, or joint custody, or a claim relating to certain incidents of custody, before the Court; and (b) Once any threshold issues are determined, the governing test, either on applications to dispense with consent under the Change of Name Act or when claims under section 28(1)(b) are advanced under the best interests of the child test.

[204] The considerations listed by Justice Finlayson address the context of a request for a name change. This Court finds that those considerations apply equally where the issue is the initial determination of the child’s name for registration purposes, rather than a name change per se.

[205] In this case, both Jane and Mark have custody claims before the Court. Each refers to the child by a different name in their respective Orders sought. The issue of the child’s name is therefore squarely before the Court.

[206] Several cases have set out the importance of the child’s name and parental involvement in naming a child, both from the perspective of the parent and that of the child.

[207] In Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835, the Supreme Court of Canada stated in relation to a child’s surname at para. 17:

Contribution to the process of determining a child’s surname is another significant mode of participation in the life of a child. For many in our society, the act of naming holds great significance… Naming is often the occasion for celebration and the surname itself symbolizes, for many, familial binds across generations.” See paragraphs 138 and 139.

[208] In Hermanson v. Kiarie, 2017 ONCJ 598, Justice Sherr stated, “Changing a child’s name is not a mere administrative act… A child’s surname is important. In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification.” See paragraph 20.

[209] Roy-Bevington and Hermanson both dealt with name change applications to the Registrar General under the Change of Name Act, R.S.O. 1990, c. C.7 See also Benko v. Torok, 2013 ONCJ 331, decided by Justice O’Connell. In all three cases the Court applied the best interests test. In Hermanson at para. 22, Justice Sherr summarized factors for the Court to consider in determining whether a prohibition of a name change under the Change of Name Act is in a child’s best interests.

a. whether the proposed name excludes the non-custodial parent; b. the length of time the custodial parent has had sole custody of the child; c. whether there is a continuing close relationship between the child and the non-custodial parent; d. whether there would be any serious effect on the non-custodial parent of excluding his or her surname from the child’s name; e. whether either parent has displayed malice or improper motivation; f. the age of the child and the weight to be given to the child’s wishes in light of that age; g. the length of time the child has had its name; and h. the surnames of any siblings.

[210] In this case, where the issue is the initial naming and registration of the birth of a child, this Court finds it is appropriate to adapt the factors set out by Justice Sherr to assist in determining the name that is in the best interests of a child.

[211] The cases this Court is aware of address surnames only, not forenames. I find that the factors set out above also apply to the child’s forenames.

[212] In applying these factors to the question of B.G.’s name, in the exercise of the Court’s discretion under section 28(1)(b) of the CLRA, I find that it is appropriate to determine a name for B.G. that incorporates a forename and a surname selected by each of Jane and Mark.

[213] Specifically, this Court finds that the name that is in B.G.’s best interests is Faelynn Olivia C-L. In reaching this determination, I have applied the factors set out above as follows:

a. The name used by Jane, whom this Court has found to be the custodial parent, would exclude Mark’s proposed names entirely from the child’s name; conversely, the name used by Mark excludes the names Jane uses for the child; b. There has until this decision of the Court been no Order for custody in relation to the child, whether on a temporary or final basis; c. There is a loving and close relationship between B.G. and Mark which should be recognized in the naming process. There is also a close and loving bond between B.G. and Jane which should be recognized in the naming process; d. Excluding the names preferred by Mark would cause a serious and negative effect to Mark. Mark selected these names before the child’s birth and has used these names with the child since her birth. This Court finds on the evidence that excluding those names could make Mark feel marginalized and less important as a parent; e. I do not find that either parent has displayed malice or improper motivation. Rather, because this case started as a dispute about surrogacy and parentage, there have been symbolic reasons why Mark and Jane have each continued to use their own preferred name for the child rather than selecting and agreeing upon names for B.G. At this time symbolism must give way to a meaningful, inclusive name for the child that recognizes her parentage as found in this Judgment; f. The child is very young and has only been called by Mark and Jane’s respective preferred names for one year. She is still able to adapt to adjustments to her name. In view of her age, the child’s wishes are not a relevant consideration; g. B.G. has been referred to for most of her young life by the forename “Faelynn”. It is in her best interests that she continue to have “Faelynn” as her forename, as this is the name she is most likely to recognize. However, it is also in B.G.’s best interests that she have as part of her name the forename Mark selected for her, namely “Olivia.” She has been referred to by this name two days out of seven and may also recognize this name. This Court finds that it is in B.G.’s interests to have the forename “Faelynn” followed by the middle name “Olivia.” Both of these names are by now part of her identity; h. B.G. has three siblings, each of whom has the mother’s surname either as part of his surname (in the case of the boys) or as her only surname (as in the case of Georgia). It is appropriate that Jane’s surname also be part of B.G.’s surname. It is equally appropriate that Mark’s surname be part of B.G.’s surname. The surname determined by this Court is a hyphenation of Jane’s surname and Mark’s surname, in alphabetical order.

[214] This Court finds that in the unique context of this case, where parentage itself has been contested due to the circumstances of conception, it is crucial to ensure that this child’s name encompasses names proposed and used by Jane and Mark. This will help ensure that neither Mark nor Jane feels marginalized and that the child feels equally connected to Jane and Mark.

(ii) Changing B.G.’s Name if Necessary

[215] If in B.G.’s birth and B.G.’s name were successfully registered, the issue is one of whether her name should be changed and if so to what. As indicated, there is no documentary evidence before the Court showing how her name was registered (if it was registered).

[216] Several provisions govern the change of a child’s name where, as in this case, a Declaration of Parentage has been made: section 17 of the CLRA); Section 5 of the Change of Name Act; and section 10 of the Vital Statistics Act.

[217] Section 17 CLRA provides in part as follows:

17. CORRESPONDING CHANGE OF SURNAME – (1) Any person declared under section 10, 11, or 13 to be a parent of a child may apply to the court for an Order that the child’s surname be changed to any surname that the child could have been given under subsection 10(3) or 10(3.1) of the Vital Statistics Act if the child had been born at the time of the declaration.

(2) SAME – An application under subsection (1) to change a child’s surname may be made at the same time as an application for a declaration under section 10, 11, or 13;

(3) BEST INTERESTS OF THE CHILD – An Order under subsection 1 changing a child’s surname may be made only if it is in the best interests of a child.

[218] Section 5 of the Change of Name Act provides as follows:

Application to Change a Child’s Name

5. (1) Unless a court order or separation agreement prohibits the change, a person described in subsection (1.1) may apply to the Registrar General in accordance with section 6 to change,

(a) the child’s forename or surname or both; or

(b) the child’s single name, if the child has a single name.

Same

(1.1) Subsection (1) applies to a person with lawful custody of,

(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or

(b) a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made.

Consents required

(2) The application under subsection (1) requires the written consent of,

(a) any other person with lawful custody of the child;

(b) any person whose consent is necessary in accordance with a court order or separation agreement; and

(c) the child, if the child is twelve years of age or older.

Same

(2.1) If a person is declared under section 10, 11 or 13 of the Children’s Law Reform Act to be a parent of a child and obtains an order under section 17 of that Act changing the child’s surname, an application under subsection (1) also requires that person’s written consent.

Where child lacks capacity

(3) Clause (2) (c) does not apply if a legally qualified medical practitioner states in writing, not more than one year before the application is made, that in his or her opinion the child does not have capacity to consent.

Application to dispense with consent

(4) If the required consent cannot be obtained or is refused, the person seeking to change the child’s name may apply to the court for an order dispensing with that consent.

Same

(4.1) If the consent that cannot be obtained or is refused is the consent required under subsection (2.1), the application under subsection (4) may be made to the Ontario Court of Justice, the Family Court or the Superior Court of Justice.

How application determined

(5) The court shall determine an application under subsection (4) in accordance with the best interests of the child.

Notice to persons with access

(6) The applicant under subsection (1) shall give notice of the application to every person who is lawfully entitled to access to the child.

Notice to spouse, etc.

(7) An applicant who proposes to change the child’s surname to the surname of the applicant’s spouse or of a person with whom the applicant has filed a joint declaration that has not been revoked shall give the spouse or other person notice of the application.

[219] Section 10 of the Vital Statistics Act provides as follows:

Child’s name

10 (1) Subject to subsections (2), (4) and (5), a child whose birth is certified under section 9 shall be given at least one forename and a surname.

How child’s surname determined if more than two parents

(3.1) If a child has more than two parents, subsection (3) does not apply, and the child’s surname shall be determined as follows:

1. If two or more parents certify the child’s birth, they may agree to give the child a surname chosen by them.

2. If any of the parents are incapable of certifying the child’s birth by reason of illness or death,

i. the remaining parents who certify the child’s birth may agree to give the child a surname chosen by them, or

ii. if there is only one remaining parent who certifies the child’s birth, that parent may determine the child’s surname.

3. If two or more parents certify the child’s birth but do not agree on the child’s surname, the child shall be given a surname consisting of each of the certifying parents’ surnames hyphenated or combined in alphabetical order, except that if any of those parents share a surname it shall be used only once.

4. If a person who is not the child’s parent certifies the child’s birth, the child shall be given the surname of the person who gave birth to the child.

[220] Section 17 of the CLRA provides that where a person is declared to be a parent under section 10, 11, or 13 of the CLRA, he or she may request that the child’s surname (not forename) be changed to any surname that the child could be given under section 10(3) or (3.1) of the Vital Statistics Act. Under that section of the Vital Statistics Act, the child’s surname could be changed to a hyphenated surname comprised of the surnames of her parents. Section 17(3) of the CLRA provides that the requested change should only be made if it is in the best interests of the child.

[221] Section 17 is not available to Mark as he was declared to be a parent through the use of the Court’s parens patriae jurisdiction, not under the enumerated sections of the CLRA.

[222] Section 10 of the Vital Statistics Act provides that a child shall be given at least one forename and one surname (unless an Application is made to use a single name under sections 10(4) and (5)), but does not put in place a process for determining a child’s forename if there is disagreement between the parents. However, section 5 of the Change of Name Act provides at section 5(1) that a person having custody of a child may apply to change the forename or surname of a child. Consent of any other person having custody is required under section 5(4). Where there is no consent, on Application to dispense with such consent, the Court may determine the matter on the basis of the best interests of the child under section 5(5). Further, under section 5(2.1), if a person has been found to be a parent under section 10, 11, or 13 of the CLRA, that person’s consent is required.

[223] As seen above, this Court has made a substantive determination, as an incident of custody, that it is in B.G.’s best interests that her name be Faelynn Olivia C.-L.

[224] As a matter of application, a number of cases have addressed the issue of implementing the name change where the other party disagrees, by either: providing that if a joint custodial parent makes a name change application and the other parent does not consent, leave is granted to apply to dispense with the other parent’s consent (Benko v. Torok, 2013 ONCJ 331); or granting temporary custody to a parent to enable a name change application, while restricting what a child’s name may be changed to (Roy-Bevington v. Rigden). The Ontario Superior Court has in some cases used its parens patriae jurisdiction to accomplish the name change: see Ryan v. Scott, 2011 ONSC 3277, and Garland v. Brouwer, 2011 ONSC 6437. The Court may also make Orders prohibiting a party from being able to bring a name change application (Zho v. Chen, 2000 CarswellOnt 446).

[225] For the reasons set out above this Court has granted Jane sole custody. At the same time this Court has determined the name that is in the best interests of B.G. The sole custody order in favour of Jane shall specifically exclude the incident of custody being the child’s name. If B.G.’s birth and name have already been registered, Jane is directed to apply for a name change under the Change of Name Act within 90 days, and shall apply only to change B.G.’s name to Faelynn Olivia, C.-L. She shall provide Mark with notice as is required under the Act. Any subsequent application for a change of B.G’s name shall require the consent of both parties.

[226] In conclusion:

a. If Jane did not successfully register B.G.’s birth and name, the Court finds under section 28(1)(b) of the CLRA that the child’s name shall be Faelynn Olivia. C.-L., and that Jane shall register the child accordingly under the Vital Statistics Act within 90 days. She shall promptly provide Mark with written notice of having done so. When she receives a copy of the birth certificate, she shall provide Mark with a certified copy for his records; b. If, on the other hand, Jane did successfully register B.G.’s birth and name, Jane shall submit an application to change B.G.’s name under the Change of Name Act, to Faelynn Olivia. C.-L., within 90 days. She shall provide Mark with Notice of the Change of Name Application. She shall also apply to the Registrar General, under the Vital Statistics Act, to seek an amendment of the birth registration to reflect the name determined for B.G. herein. c. Both parties’ consent shall be required for any future application to change B.G’s name.

(iii) How the Child shall be referred to

[227] The Court is very concerned about the long term impact of B.G. being called by different names in each household, to the exclusion of the other name. The Court is also concerned about how B.G. is referred to by the parties to third parties in the community such as school, and with professionals such as doctors, dentists, and potentially daycare, for example. To date, Mark has ignored the fact that this child has been referred to as Faelynn five days out of seven and has insisted on using the name Olivia when he refers to her. This must not continue. To continue to use the name Olivia may serve to confuse the child, undermine Jane’s role and create antagonism between the parents.

[228] It is not in the best interests of this young child to be called by different first names depending on where she may be from time to time. Bearing in mind that this issue is about the child and not about the parents, this Court finds that it would be best for the child she be referred to primarily as Faelynn.

[229] Both parents shall teach the child that her first name is Faelynn and her middle name is Olivia. They shall also teach the child that her surname is C.-L. Both parents shall refer to the child’s first name as Faelynn in public and on school or official documents, pursuant to section 28 of the CLRA. Both parents are strongly encouraged to also refer to the child as Faelynn when speaking directly to and within earshot of the child. See H.(T.E.) v. R.(G.J.) 2016 ONCJ 156 at paras. 471, 492, and 495(23) per Justice O’Connell. See also Ganie v. Ganie, 2015 CarswellOnt 15636 at 96 and 113(5) per Justice Price.

(iv) Who shall be shown as parents on the child’s birth registration?

[230] This issue is straightforward. This Court has determined that B.G. has three parents, Mark, Jane, and Samantha. All three parents shall be reflected in the birth registration documentation. It is appropriate that Jane register B.G.’s birth on that basis within 90 days.

[231] If the birth registration was in fact completed by Jane and the registration was not put “on hold” as understood by Mark, Jane shall, within 90 days, apply to the Deputy Registrar General for the Province of Ontario to seek an amendment to the birth registration to reflect Mark, Jane, and Samantha as the three parents of B.G., as permitted under section 9(6) and 9(7) of the Vital Statistics Act. Those sections read as follows:

Amendment of registration

(6) The Registrar General may amend a birth registration in the circumstances and upon application by the person or persons prescribed by the regulations. 1994, c. 27, s. 102 (5).

Same

(7) On receiving a certified copy of a declaratory order under Part I of the Children’s Law Reform Act respecting the parentage of a child whose birth is registered in Ontario, the Registrar General shall amend the particulars of the child’s parents shown on the registration, in accordance with the order.

[232] If the birth registration was put “on hold” as Mark understood, when Jane re-submits the child’s birth registration as set out above, she shall ensure that she, Samantha, and Mark are listed as the child’s parents.

ISSUE 5: WHAT ARE THE APPROPRIATE CHILD SUPPORT ARRANGEMENTS?

[233] Jane seeks an Order that Mark pay child support for B.G. and an Order that he pay 50% of the “medical costs and activities” for her. Mark did not seek any relief related to child support.

[234] It is fair to say that financial issues were largely an afterthought in this proceeding. The heart of the matter was parentage, and secondarily custody and access. As a consequence, there are inadequate financial materials before the Court for a proper determination of child support and section 7 expenses.

[235] Mark did file a financial statement sworn August 30, 2017, showing his 2017 income as $45,000, and indicating that his income in 2016 was $49,053.64. He included his 2015 T4 which showed an income of $44,152.46.

[236] There was no evidence in the proceeding related to Jane’s income. She was on maternity leave during the Trial.

[237] As the parenting arrangements that have been determined by this Court result in B.G. spending more than 40% of her time with each of Mark and Jane, child support is to be determined under section 9 of the Ontario Child Support Guidelines, O. Reg. 391/97, which reads as follows:

Shared custody

9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[238] It is not possible for this Court to apply section 9 of the Ontario Child Support Guidelines in this case given the lack of evidence regarding Jane’s income and both parties’ actual expenditures related to B.G.’s care. There is also no evidence regarding what special and extraordinary expenses may be applicable in this case.

[239] If the parties are unable to resolve the issue of child support including contributions to special and extraordinary expenses within 60 days, they may contact the Trial Coordinator to schedule a one-day hearing to address this issue before me. The following documents shall be filed in advance of the hearing:

a) Both parties shall file up-to-date sworn financial statements; b) Jane shall file her 2014, 2015, and 2016 Income Tax Returns and Notices of Assessment as well as year-to-date earnings information in the event that she has obtained employment; c) Mark shall file his 2014, 2015, and 2016 Income Tax returns and his Notice of Assessment for 2014 (2015 and 2016 are already in evidence). He shall also file year-to-date earnings information; d) If either party seeks a contribution to the cost of special and extraordinary expenses, he or she shall file copies of invoices and/or receipts in relation to same.

ISSUE 6: IS IT APPROPRIATE TO INITIALIZE AND/OR SEAL THE COURT RECORD IN THIS MATTER?

[240] In his pleadings and at the conclusion of the Trial, Mark sought an Order that the Court file be initialized and sealed. Jane did not object to this relief sought. Neither made detailed submissions but stressed the sensitive nature of some of the facts in this matter.

[241] Earlier in the Trial, the Court had already ruled, on consent, that the CAS records and the records from Portage in relation to Georgia be sealed within the Court file. Those records contain very private information about Georgia’s mental health and addictions issues and her sexual victimization at a young age. The information is highly personal.

[242] Section 137 of the Courts of Justice Act provides:

Documents Public

On payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a Court unless an Act or an Order of the Court provides otherwise.

Sealing documents

A Court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

[243] Under the Superior Court of Justice Practice Direction effective July 1, 2016, a party seeking a publication ban must file a notice of Motion or Application, and, unless a judge orders otherwise, provide notice to the media. In this case, neither party followed that process. The media was not notified.

[244] In P. (B.C.) v. P. (A.R.), 2016 ONSC 4518, a case involving four parentage Applications in the surrogacy context, Justice Kitely noted that parties in parentage Applications typically do not seek a “publication ban” per se, but rather, as here, seek an Order initializing and sealing the file, thus engaging section 137 of the Courts of Justice Act and the Practice Direction. Justice Kitely carefully considered the requirements for initializing, sealing, and keeping Court records confidential. She reviewed the Supreme Court of Canada’s decisions in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, which set out the principles engaged where a party seeks to limit openness of judicial proceedings. Those principles include that such restrictions should only be ordered where: (a) necessary to prevent serious risk to the proper administration of justice and reasonable alternative measures will not prevent the risk; and where (b) the salutary effects outweigh the deleterious effects on the rights and interests of the parties and the public. Justice Kitely noted that in Vancouver Sun, Re., 2004 SCC 43, [2004] 2 S.C.R. 332 at para. 28, the Supreme Court referred to the test as “adaptable”, “to balance freedom of expression and other important interests and rights” that may be broader than privacy and security interests.

[245] Justice Kitely then considered section 70 of the CLRA, which provides as follows:

Confidentiality

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.

Considerations

(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.

[246] By virtue of section 17(3) of the CLRA, which was not in effect when Justice Kitely rendered her decision in P. (B.C.), section 70 now applies to parentage applications under Part 1 of the CLRA. Section 70 also applies to custody and access determinations under Part III of the Act. Section 17(3) reads:

Confidentiality

17.3 Section 70 applies with necessary modifications if a proceeding includes an application under this Part.

[247] Considering section 70 and the test set out by the Supreme Court of Canada, Justice Kitely made findings including the following with respect to parentage Applications at para. 31:

(a) Sealing the court record is necessary to prevent a serious risk to the proper administration of justice because alternative measures will not prevent the risk of disclosure; (b) The proper administration of justice requires the protection of the child who is the subject of the parentage Application; (c) Other children of the intended parents and the intended parents have privacy and security concerns that the Court must consider; (d) The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public including the right of freedom of expression; (e) In parentage Applications, there is no purpose served by putting the intimate details into the public domain; (f) Confidentiality orders would not stifle public comment or debate on the issues or their implications; (g) By exercising the Court’s discretion not to put the media on notice and sealing the 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.

[248] Justice Kitely concluded at para. 32:

I am satisfied that: 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 the child that privacy be afforded as well to intended parents and other siblings and the surrogate and her domestic partner (if any), and their children (if any) that I exercise my discretion against notification of the media.

[249] In M.R.R. v. J.M., the case concerning a pre-conception parenting agreement, discussed above, Justice Fryer also found it appropriate to initialize the case (there was no request in that case to seal the record), applying the analysis of Justice Kitely as set out above.

[250] This case, unlike P. (B.C.), is not a parentage Application on the consent of surrogates and intended parents, but rather a contested parentage Application and ultimately a custody case. The principles as set out by Justice Kitely nevertheless apply. The evidence regarding the circumstances of B.G.’s birth is sensitive, and failure to make the Orders sought could cause harm to B.G., and/or her three parents. Further, the evidence with respect to Georgia is also sensitive and deeply private. Failure to make the Orders sought could certainly cause mental or emotional harm to her. Initializing the case and sealing the record is necessary to prevent a serious risk to the proper administration of justice because alternative measures will not prevent the risk of disclosure. Further, as set out by Justice Kitley, “by exercising the Court’s discretion not to put the media on notice and sealing the file, the court will protect the child[ren’s] dignity and privacy, and this salutary effect far outweighs the extremely remote deleterious effect, if any, on the public.”

[251] On the basis of the forgoing, this case has been initialized and the Court record shall be sealed as set out in the Orders section below.

CONCLUSION AND ORDER

[252] Based on the foregoing, I make the following Order:

Parentage

1. It is declared that M.L., J.C., and S.N are the parents of the child, F.O.C.-T. born […], 2016.

Custody

2. Subject to Clauses 5, 6, and 7 of this Order which shall govern the name and birth registration of the child, J.C. shall have sole custody of the child. J.C. shall meaningfully consult M.L. before making any major decision regarding the child’s non-emergency health care, education, or religion.

3. The parent having care of the child at any given time under the regular or holiday schedule shall make day-to-day decisions concerning the care of the child. These decisions shall include but may not be limited to: the child’s diet, bed-time routines, discipline, screen-time, chores, and other household routines.

4. The parent having care of the child at any given time under the regular or holiday schedule shall make emergency decisions concerning the child’s care and shall promptly notify the other parent.

Name and Birth Registration

5. The following terms apply to the child’s name:

Child’s Birth Not Yet Registered:

a. If the child’s birth has not yet been registered under the Vital Statistics Act, J.C. shall, within 90 days, re-submit the birth registration Application, which shall reflect the following:

i. That the child’s name is F.O. C.-L., as determined by this Court under section 28(10(b) of the CLRA. ii. That J.C, M.L. and S.N. are the parents of the child.

b. J.C. shall promptly provide M.L. with written notice of having resubmitted the birth registration application.

c. When J.C. receives a copy of the birth certificate, she shall provide M.L. with a certified copy for his records.

Child’s Birth Previously Registered:

d. If the child’s birth and name have previously been registered, Jane shall apply to change B.G.’s name under the Change of Name Act, to F.O. C.-L. within 90 days.

e. J.C. shall also apply to the Registrar General, under the Vital Statistics Act, to seek an amendment of the birth registration to reflect the child’s name as F.O. C.-L. and provide M.L. with written notice of having done so.

f. J.C. shall provide M.L. with Notice of the Change of Name Application.

g. When she receives a copy of the birth certificate, J.C. shall provide M.L. with a certified copy for his records.

6. Both parties’ consent shall be required for any future application to change B.G’s name.

7. Both parties shall teach the child that her first name is F., her middle name is O., and her surname is C.-L. Both parties shall refer to the child as F. in public and on school, medical, dental, or other official documents.

Parenting Schedule

8. Commencing on Sunday January 7, 2018 at 7:00 p.m., which shall be the first Sunday of Week One, B.G. shall reside with the parties as follows:

Week One Sunday at 7:00 p.m. until Tuesday at 7:00 p.m. with M.L. Tuesday at 7:00 p.m. until Friday at 7:00 p.m. with J.C. Friday at 7:00 p.m. until Sunday at 7:00 p.m. with M.L.

Week Two Sunday at 7:00 p.m. until Tuesday at 7:00 p.m. with J.C. Tuesday at 7:00 p.m. until Thursday at 7:00 p.m. with M.L. Thursday at 7:00 p.m. to Sunday at 7:00 p.m. with J.C.

9. Commencing on Sunday January 7, 2018, which shall be the first Sunday of Week One, the following holiday schedule shall override the regular schedule and not cause an adjustment to the regular schedule unless the parties agree otherwise:

a. Christmas: In odd-numbered years, the child shall reside with J.C. from December 23 at noon until December 25 at noon and with M.L. from December 25 at noon until December 27 at noon; in even-numbered years, this schedule shall be reversed. b. Easter: In even-numbered years, the child shall reside with the M.L. from Friday at 4:00 p.m. until Sunday at 4:00 p.m. and with J.C. from Sunday at 4:00 p.m. until Monday at 4:00 p.m.; In odd-numbered years, this schedule shall be reversed. c. Thanksgiving: In even-numbered years, the child shall reside with J.C. from Friday at 4:00 p.m. until Sunday at 4:00 p.m. and with M.L. from Sunday at 4:00 p.m. until Monday at 4:00 p.m.; in odd-numbered years, this schedule shall be reversed. d. Summer: i. In 2018 and 2019, the child shall have four consecutive days with each parent by extending his or her regularly scheduled time to a total of four days, in each of July and August. In 2018, M.L. shall have first choice of his preferred four day periods and shall give J.C. notice by May 1, 2018 of his chosen dates. In 2019, J.C. shall have first choice of her preferred four day periods and shall give M.L. notice by May 1, 2019 of her chosen dates. ii. In 2020 and summers thereafter, the child shall have one seven day period with each parent in July and in August from Friday at 4:00 p.m. to the following Friday at 4:00 p.m. M.L. shall have first choice of his preferred weeks in even-numbered years and J.C. shall have first choice of her preferred weeks in odd-numbered years. A party having first choice in any given year shall advise the other by May 1 of his or her preferred weeks. iii. In the event that employment requirements constrain when a parent is able to take vacation time, the parties shall make every effort to be flexible with one another, bearing in mind that it is in the child’s best interests to have holiday time with both parties. e. Child’s Birthday: The child shall follow the regular schedule on her birthday. The party having care of the child on her birthday shall facilitate a short visit with the other party on the birthday. f. Halloween: The child shall reside with J.C. from 4:00 p.m. to 8:00 p.m. on Halloween in even-numbered years and with M.L. from 4:00 p.m. to 8:00 p.m. in odd-numbered years. A party having care of the child for Halloween under this schedule shall be responsible for the costume.

10. For clarity, the schedule set out in Clause 1(f) of the Temporary Order of Justice Glithero dated December 7, 2016, shall continue in full force and effect until January 7, 2018 at 7:00 p.m.

Child Support

11. If, within 60 days, the parties are unable to agree to child support provisions having regard to the terms of this Order, either party may contact the Trial Coordinator to schedule a hearing to address the issue before me. The following documents shall be filed in advance of the hearing:

a. Both parties shall file up to date sworn financial statements; b. J.C. shall file her 2014, 2015, and 2016 Income Tax Returns and Notices of Assessment as well as year-to-date earnings information in the event that she has obtained employment; c. M.L. shall file his 2014, 2015, and 2016 Income Tax Returns and his Notice of Assessment for 2014 (2015 and 2016 are already in evidence). He shall also file year-to-date earnings information; d. If either party seeks a contribution to the cost of special and extraordinary expenses he or she shall file copies of invoices and/or receipts in relation to same.

Initializing and Sealing the Court File

12. Notice to the media with respect to the relief granted under Clauses 13, 14, 15, and 16 of this Order is dispensed with.

13. The Registrar General of the Ontario Superior Court of Justice is directed to seal and treat as confidential all documents filed in this case.

14. The name of this case shall be changed to show only the initials of the parties and the Registrar of the Ontario Superior Court of Justice is directed to amend the records accordingly.

15. The Deputy Registrar General for the Province of Ontario is directed to seal and treat as confidential the Notice of Live Birth and all other records in its possession in connection with this case, including this Order, save and except for Form 2 (Statement of Live Birth) and the birth certificate.

16. 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, the child, or relatives of the child.

17. All other claims are dismissed.

18. Counsel may a forward replacement Orders to my attention through the Trial Coordinator, inserting the names of the parties and the child.

COSTS

[253] If costs cannot be agreed upon, this Court will accept brief written costs submissions by January 19, 2018, such submissions to include a Bill of Costs. Brief responding costs submissions, if any, are due January 26, 2018. If submissions are not received on this timeline, costs will be deemed to have been resolved by the parties. Timelines for these costs submissions may not be extended without leave of the Court.

Madsen, J.

Released: December 15, 2017

CITATION: M.L. v. J.C., 2017 ONSC 7179 COURT FILE NO.: FS-16-721 DATE: 2017-12-15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

M.L. Applicant

• and -

J.C. Respondent

REASONS FOR JUDGMENT

The Honourable Madam Justice L. Madsen

Released: December 15, 2017