Court File and Parties

Court File No.: FC-18-FO000142-0000 Date: 2020-12-11 Superior Court of Justice - Ontario

Re: The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant And: A.J., Respondent And: M.M., Respondent

Before: The Honourable Mr. Justice D.J. Gordon

Counsel: Ben McIvor, Counsel for the Applicant Walter Wintar, Counsel for the Respondent, A.J. Anna L. Towlson, counsel for the Respondent M.M. Inga K. Rinne, counsel for the child, L.J.

Heard: December 2, 2020

REASONS FOR DECISION

[1] In her motion dated September 25, 2020, A.J., the respondent mother, seeks an order for DNA testing to determine paternity of the child, L.J. This motion is opposed by all other parties. For the reasons that follow, the motion is dismissed.

Background

[2] The Children’s Aid Society of the Regional Municipality of Waterloo (“the Society”) commenced this case by application issued March 20, 2018. This application has been amended on five occasions. The Society seeks a finding the L.J. is in need of protection and an order under section 102, Child Youth and Family Services Act (“C.Y.F.S.A.”) awarding joint custody of the child to S.D., paternal grandmother and M.M., the respondent father. Provisions for access by A.J. and other relief is also sought.

[3] A.J.’s initial answer is dated March 22, 2018. She sought access to the child and a lesser protective order. Her answer was amended and served on May 18, 2018. In this document, she raised the status of paternity of L.J. saying:

I do not believe that [M.M.] is the biological father of my son [L.J.]. I believe that there is a chance that [L.J.’s] real father may very well be a man named [M.] and I request paternity testing to establish this.

The present motion pursues that allegation.

[4] L.J. is almost 8 years of age. He was taken to a place of safety on March 16, 2018 and thereafter placed with M.M. who was also residing with his mother, S.D. and her spouse. An order to that effect was granted on March 20, 2018. A subsequent order, granted November 1, 2018, placed the child with S.D. and her spouse. That remains the situation. L.J. has had access with A.J. and M.M. throughout this case.

Issues

[5] There are three issues with respect to this motion:

(i) Has A.J. met the evidentiary onus?

(ii) Is M. a “parent” within the meaning of the C.Y.F.S.A.?

(iii) Is it in the best interests of L.J.?

DNA Testing – Evidentiary Onus

[6] There is no provision for DNA testing in the C.Y.F.S.A. Rather, it is found in the Children’s Law Reform Act (“C.L.R.A.”). There, s.17.2 states:

BLOOD DNA TESTS – (1) On the application of a party in a proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain a blood test, DNA test or any other test the court considers appropriate of a person named in the order granting leave, and to submit the results in evidence.

[7] A.J. has met the first component of the section, namely “… the application of a party in a proceeding …”. I will leave the second requirement, namely “… in which the court is called on to determine a child’s parentage …” to the section dealing with “parent”.

[8] The evidentiary onus is on A.J. to show, on a balance of probabilities, that someone other than M.M. is the biological father of L.J. See: G.(F.) v. G.(F.) (1991), 1991 12837 (ON SC), 32 R.F.L. (3d) 252 (Ont. Gen. Div.). This, of course, is the standard in all family cases.

[9] The evidence of A.J. is found in her affidavit, sworn September 21, 2020. At paras. 3 and 4, she says:

3. I am not certain who [L.J.’s] biological father is. I have not been certain for some time. I believe that it is possible that [L.J.’s] father was [M.M.], one of the Respondents in this proceeding. However, at the time I became pregnant with [L.J.], I also had intimate relations with [M.].

4. At the time [L.J.] was born, it was my understanding that [M.] was not able to have children based on statements that he had made to me which, at the time, I had verily believed. I subsequently found out that [M.] later had a daughter. I found out about three years ago that [M.] had a daughter. It is therefore just as possible that [M.] could be [L.J.’s] father as [M.M.] being [L.J.’s] father.

[10] By her own admission, A.J. says it is only a possibility paternity is in dispute. That is not the standard. There is no or insufficient evidence connecting her intimate relationships with M.M. and M. to the time of conception. While she cannot be expected to remember the exact dates from over eight years ago, there must be more evidence than presented.

[11] This is a discretionary remedy. The impact of an order for DNA testing may be traumatic for this child, as hereafter discussed. The court is entitled to evidence meeting the standard. A.J. has failed to do so.

Parent

[12] The definition of “parent” in the C.Y.F.S.A. is most convoluted, as set out in section 74(1) as follows:

“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:

1. A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children’s Law Reform Act.

2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7 (2) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.

3. An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.

4. In the case of an adopted child, a parent of the child as provided for under section 217 or 218.

5. An individual who has lawful custody of the child.

6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.

7. An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.

8. An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children’s Law Reform Act as it read before the day subsection 1 (1) of the All Families Are Equal Act (Parentage and Related Registrations State Law Amendment), 2016 came into force; (“parent”).

[13] The provisions referred to in the C.L.R.A. are as follows:

Birth parent

6 (1) The birth parent of a child is, and shall be recognized in law to be, a parent of the child.

Exception, surrogacy

(2) 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.

Other biological parent, if sexual intercourse

Presumption

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

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

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

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

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

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

Conflicting presumptions

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

Non-application, insemination by a sperm donor

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

Same, sperm donor not a parent

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

Birth parent’s spouse, if assisted reproduction or insemination by sperm donor

Assisted reproduction

8 (1) 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.

Insemination by a sperm donor

(2) If the birth parent of a child conceived through insemination by a sperm donor 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.

Non-application, lack of consent

(3) This section does not apply if, before the child’s conception,

(a) the spouse did not consent to be a parent of the child; or

(b) the spouse consented to be a parent of the child but withdrew the consent.

Non-application, surrogacy or posthumous conception

(4) This section does not apply if the birth parent is a surrogate or if the child is conceived after the death of a person declared under section 12 to be his or her parent.

Parents under pre-conception parentage agreements

Definition

9 (1) In this section,

“pre-conception parentage agreement” means a written agreement between two or more parties in which they agree to be, together, the parents of a child yet to be conceived.

Application

(2) This section applies with respect to a pre-conception parentage agreement only if,

(a) there are no more than four parties to the agreement;

(b) the intended birth parent is not a surrogate, and is a party to the agreement;

(c) if the child is to be conceived through sexual intercourse but not through insemination by a sperm donor, the person whose sperm is to be used for the purpose of conception is a party to the agreement; and

(d) if the child is to be conceived through assisted reproduction or through insemination by a sperm donor, the spouse, if any, of the person who intends to be the birth parent is a party to the agreement, subject to subsection.

If spouse intends to not be a parent

(3) Clause (2) (d) does not apply if, before the child is conceived, the birth parent’s spouse provides written confirmation that he or she does not consent to be a parent of the child and does not withdraw the confirmation.

Recognition of parentage

(4) On the birth of a child contemplated by a pre-conception parentage agreement, together with every party to a pre-conception parentage agreement who is a parent of the child under section 6 (birth parent), 7 (other biological parent) or 8 (birth parent’s spouse), the other parties to the agreement are, and shall be recognized in law to be, parents of the child.

Surrogacy, up to four intended parents

Definitions

10 (1) In this section and in section 11,

“intended parent” means a party to a surrogacy agreement, other than the surrogate; (“parent d’intention”)

“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 to not be a parent of the child, and

(b) each of the other parties to the agreement agrees to be a parent of the child. (“convention de gestation pour autrui”)

Application

(2) 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 by the surrogate 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 through assisted reproduction.

Recognition of parentage

(3) 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 a parent of the child.

Limitation

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

Parental rights and responsibilities

(5) 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.

Failure to give consent

(6) Any 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.

Declaration

(7) If an application is made under subsection (6), the court may,

(a) grant the declaration that is sought; or

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

Child’s best interests

(8) The paramount consideration by the court in making a declaration under subsection (7) shall be the best interests of the child.

Effect of surrogacy agreement

(9) 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.

Surrogacy, more than four intended parents

11 (1) If the conditions set out in subsection 10 (2) are met other than the condition set out in paragraph 3 of that subsection, any party to the surrogacy agreement may apply to the court for a declaration of parentage respecting a child contemplated by the agreement.

Time limit

(2) An application under subsection (1) may not be made,

(a) until the child is born; and

(b) unless the court orders otherwise, after the first anniversary of the child’s birth.

Parental rights and responsibilities

(3) Unless the surrogacy agreement provides otherwise, the surrogate and the intended parents share the rights and responsibilities of a parent in respect of the child from the time of the child’s birth until the court makes a declaration of parentage respecting the child.

Declaration

(4) If an application is made under subsection (1), the court may make any declaration that the court may make under section 10 and, for the purpose, subsections 10 (8) and (9) apply with necessary modifications.

Post-birth consent of surrogate

(5) A declaration naming one or more intended parents as a parent of the child and determining that the surrogate is not a parent of the child shall not be made under subsection (4) unless, after the child’s birth, the surrogate provides to the intended parents consent in writing relinquishing the surrogate’s entitlement to parentage of the child.

Waiver

(6) Despite subsection (5), the court may waive the consent if any of the circumstances set out in subsection 10 (6) apply.

Declaration of parentage, general

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

Exception, adopted child

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

Declaration

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

Restriction

(4) 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.

Conditions

(5) 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.

[14] Of some interest, section 7(1) C.L.R.A. is not included in the C.Y.F.S.A. definition of parent. That provision says:

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

[15] The C.L.R.A. and C.Y.F.S.A. serve different purposes. It must be presumed the Legislature deliberately excluded s.7(1) from the C.L.R.A. for child protection cases.

[16] What becomes clear from the lengthy definition of parent in the C.Y.F.S.A. is that a child’s birth mother is always a parent, the biological father is not necessarily so. He must come within one of the extended meanings above. See: Children’s Aid Society of Algoma v. T.E.S., [2012] O.J. No. 3295 (O.C.J.); and Catholic Children’s Aid Society of Toronto v. D.L., 2014 ONCJ 587. I agree with the statements in these decisions.

[17] In this case, the evidence indicates M.M. is the only father L.J. has ever known. While there may be some evidentiary dispute as to the nature of his involvement, it is clear M.M. has been a factor in this child’s life since birth and to the present. In this regard, M.M. meets the definition of parent by virtue of his “settled intention”, clearly demonstrated over the past almost eight years. This does not appear to be in dispute.

[18] But what of M? There is no evidence that M. has ever been involved with L.J. It appears, he has never even met the child.

[19] The only possible way M. becomes a parent is if he comes within the meaning in section 7(2) 3, as all other provisions do not apply. In this regard, the evidence of A.J. is found at para. 9 (b) of her second affidavit, sworn November 2, 2020. She says:

… I was involved in a relationship with [M.] from when I was 19 years old until I was approximately 36 years old when our relationship ended. I acknowledge that we did not co-habit during this time and that we both had separate residences. However, we had a personal and intimate relationship over this period of time. During this time he sometimes spent time at my home for days or longer, including staying overnight, although we kept our own residences.

[20] In my view, this evidence does not meet the requirement of “… living in a conjugal relationship with the child’s birth parent …”. The evidence reveals a casual, but lengthy, relationship only.

[21] Hence, I conclude M. does not meet the definition of parent within the meaning prescribed by the C.Y.F.S.A., even if he is the biological father.

[22] Returning to section 17.2, C.L.R.A., there is no issue in this case requiring a determination of paternity. M.M. is a parent. He is a party. M. is not a parent and has no interest in this proceeding, nor is any claim advanced against him.

Best Interests Test

[23] It may be helpful to also consider the best interests of L.J. with respect to this motion for DNA testing.

[24] In B.E.P. v. S.D.P., 1993 7263, (Ont. S.C.J.), Pardu J., as she then was, set out the following factors when determining whether to exercise the discretion to order DNA testing:

1. The context within which and the purpose for which the tests are sought.

2. The effect of any presumptions that may apply.

3. The strength of the evidence casting paternity into doubt or alleging paternity.

4. Delay on the part of the applicant together with any associated prejudice to the respondent or estoppel.

5. The best interests of the child.

6. The societal value in the determination of paternity by blood tests.

7. The bona fides of the moving party.

[25] In Children’s Aid Society of Brant v. H.(H.), 2007 ONCJ 477, Thibideau J. provided this helpful summary from the caselaw:

(a) The testing process must not adversely affect the child’s health physically or emotionally.

(b) An ulterior motive for the request is not made out.

(c) A request must be timely, even if made in good faith. However, all things being equal, latches does not apply to the consideration of timelines.

(d) However, prejudice to a party or the child as a result of delay may prevent the making of the order.

(e) Necessary admissible evidence to support a prima facie case must be the foundation of the request.

[26] Thibideau J. did decide there was an issue that required a finding of paternity, namely access. There is no claim for access to M. in the case at bar.

[27] In McCartney v. Amell, 1982 2272 (O.C.J.), Nevins J. considered paternity testing in a child support case. The children were almost 13 years of age. There was no evidence regarding the children or what they had been told about their father or anyone else. Nevins J. opined as to the serious emotional and psychological disturbance to the children that might occur in exposing them to blood testing at this late state.

[28] There has been delay in pursuing this motion. The issue was raised by A.J. in May 2018. She explains the timing of her motion as financial, only now having the funds. I am troubled as to the timelines in this case, as other judges have stated. A determination is long overdue. DNA testing would cause further and unnecessary delay.

[29] The purpose of testing on behalf of A.J., is said to be in the child’s best interests, as well as the best interests of all parties, that all persons be present in this proceeding. This would allow M. to be given notice and participate, if he chooses to do so, and present a plan of care.

[30] I do not consider that argument to be persuasive. As previously stated, M.M. is the only father L.J. has known. M. has never been involved. Nor has he made any inquiry since being made aware of this case by A.J. A.J. says M. will participate in DNA testing. But M. has shown no interest in L.J. He has not even provided an affidavit on this motion.

[31] The remaining concern is the potential impact on the child as to the testing process and its results.

[32] Counsel for A.J. says the child need not be told the purpose of the testing. I disagree. Counsel for the child expressed difficulty in what he should be told. In my view, the child must be informed, in an age appropriate manner. It must be recognized that this case is about him and he has the right to be informed, to participate and to have his voice heard. See: United Nations Convention on the Rights of the Child, embedded in the preamble of the C.Y.F.S.A.

[33] The Society has been involved with A.J. and her children since 2007. L.J. has been aware of this for most of his life. In March 2018 he was removed from the care of his mother. That event must be recognized as traumatic for a young child regardless of the circumstances.

[34] L.J. is said to be doing well since apprehension. To now be told someone else may be his father and that he must participate in DNA testing would, in my view, cause further difficulties for him. Such is a logical conclusion, there being no evidence to the contrary.

[35] Of some interest, DNA testing is opposed by M.M. Similarly, S.D. sees no benefit in testing. Both are concerned with the impact on L.J. Clearly, their plan of care is not dependant on a determination of paternity. Bonds have been established with L.J. M.M. and S.D. are part of his family.

[36] In result, I conclude DNA testing would not be in the best interests of L.J. Mother’s curiosity as to paternity of L.J. should not be allowed to put the child’s emotional and psychological stability at risk.

Summary

[37] For these reasons, A.J.’s motion for DNA testing is dismissed.

D.J. Gordon J.

Released: December 11, 2020