Court File and Parties

LINDSAY COURT FILE NO.: FC-20-00000228 DATE: 20210525

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Kyle Eldon, Applicant AND: Bruce Grant and Kayla Broomer, Respondents

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Blake Jeffries, Counsel for the Applicant Bruce Grant, Self-Represented at this motion No one appearing for the Respondent, Kayla Broomer

HEARD: May 21, 2021 – Via Zoom

ENDORSEMENT

Introduction

[1] The applicant, Kyle Eldon, alleges that he is the biological father of J., born August 17, 2019. He brings this motion for “majority parenting time” with, J.

[2] The respondent, Bruce Grant, alleges that he is the biological father of J. J has lived with Mr. Grant since J. was born. Mr. Grant has, to put it mildly, been unreceptive to Mr. Eldon’s claim for custody or parenting time with J.

[3] The second respondent, Kayla Broomer, is J.’s biological mother. She does not currently live with either Mr. Eldon or Mr. Grant, and has declined to participate in these proceedings.

[4] The ultimate issue in this case is whether the applicant should have custody of, or parenting time with, J. As I will explain, we are still a fair way off before that decision can be made. What I hope to do in this decision is set out a road map as to how this issue might be resolved in the best interests of J.

Facts

[5] The applicant and Ms. Broomer had a brief relationship from October 2018 to December 2018.

[6] The applicant contends that when J. was born on August 17, 2019, Ms. Broomer was uncertain whether the applicant or Mr. Grant was J.’s biological father.

[7] Ms. Broomer was living with Mr. Grant when J. was born. The applicant was not aware that Ms. Broomer had a child until March 2020, when Ms. Broomer contacted him and informed him that she had a child the previous August and the child might be his.

[8] Mr. Grant and Ms. Broomer have another child together who is two years older than J. Ms. Broomer no longer lives with Mr. Grant and does not have parenting time with either child. Ms. Broomer is currently expecting another child with her current spouse.

[9] From March 2020 to August 2020 Ms. Broomer attempted to help the applicant complete a DNA test. The applicant reached out to Mr. Grant to seek his assistance, but Mr. Grant dismissed the applicant’s claim to paternity and refused to cooperate.

[10] On September 17, 2020, the applicant received the results of a DNA test through Genex Diagnostics. The test indicates that the applicant is J.’s biological father: “probability of paternity is > 99.9999%”.

[11] However, the DNA test results come with an important caveat:

Note: Results from privately collected (not witnessed) cases are for personal knowledge only and cannot be used as legal evidence of parentage or identity.

[12] I have not been provided with any evidence regarding the source of the DNA sample used for the child’s DNA test.

[13] In November 2020, the applicant commenced this application for an order for custody or majority parenting time with J. The respondents were served with the application material, but have not filed any responding material.

[14] An urgent case conference was held on April 15, 2021, but the respondents did not attend or file any material.

CAS Involvement

[15] The CAS has been involved with the respondents, and the CAS records have been disclosed pursuant to a Court Order. The applicant acknowledges that CAS involvement has focused on Ms. Broomer’s parenting ability. The records indicate that Ms. Broomer has three other children who are in the care of their paternal grandparents. A Parenting Capacity assessment completed on Ms. Broomer in 2014 determined that she was not capable of meeting her children’s needs or providing adequate and appropriate care. Later reports indicate that progress has been made.

[16] The CAS has had little involvement since Ms. Broomer left Mr. Grant in April 2020. The Report notes that Ms. Broomer “has left the family to live elsewhere” and that Mr. Grant is now involved in a new relationship. It concludes that Mr. Grant “appears to be meeting the needs of both children and no longer requires CAS involvement.”

[17] The applicant did have concerns regarding Mr. Grant’s care of J. In a letter to the applicant dated January 7, 2021, the CAS advised the applicant that it had investigated these concerns, and that “the concerns were not verified, and the file closed on December 29, 2020.”

Applicant’s Current Status

[18] The applicant lives with his mother, step-father and brother in the City of Kawartha Lakes. The applicant has another child who is one year old. He and the child’s mother are separated, but share parenting time.

[19] The applicant has provided a plan of care should he gain custody of J. He asks for an order giving him “majority parenting time” with J., an order that Mr. Grant shall have no contact with J., and an order that Ms. Broomer shall have parenting time with J. at his discretion.

[20] It is clear that the applicant has a very supportive extended family, and the proposed plan of care is an admirable one. It is to their credit that they have stepped up and offered to lean in. Given my determination that it is premature to make any decisions with regard to the merits of this motion, I will not review the details of the plan of care at this point.

Hearing of the Motion

[21] As indicated, the respondent, Mr. Grant, did not file any response to the applicant’s motion, nor appear at the Case Conference in April, or, at least initially, the motion before me. Nonetheless, given the fact that the DNA test relied on by the applicant expressly states that it “cannot be used as legal evidence of parentage”, I advised the applicant’s counsel that I would reserve my decision on the motion to decide what steps should be taken next. I indicated my likely intention to order Mr. Grant to make J. available for a valid DNA test. If Mr. Grant failed to comply with this order, the Court could draw an adverse inference against Mr. Grant and make a ruling on paternity.

[22] The motion ended and the Court took its morning recess.

[23] When I returned after the recess, I was advised by the Registrar that Mr. Grant had joined the Zoom link during the recess, and was now in the Zoom waiting room.

[24] Given these unusual circumstances, I spoke to Mr. Grant to find out why he had not attended the hearing at 9:30 a.m. and to inform him of the issues discussed at the motion.

[25] Mr. Grant informed the Court that although he received notice of the motion, he did not understand that the hearing was to be a virtual hearing, and he travelled to the Lindsay Courthouse for the hearing at 9:30 a.m. When he discovered that the hearing was to be by Zoom, he returned home so that he could participate in the hearing, but was unable to connect in time.

[26] Mr. Grant further informed the Court that he believed that he was J.’s biological father, and he had no idea who Mr. Eldon was when he was initially contacted by Mr. Eldon. He did not agree to J. participating in a paternity test, and had no idea that such a test had been conducted without his knowledge or consent.

[27] Finally, Mr. Grant informed the Court that he had been granted a legal aid certificate and had retained a lawyer who he would be meeting with at the beginning of June to discuss this case and the applicant’s claim for custody/parenting time.

[28] While I do not condone the offensive language used by Mr. Grant in his text messages to the applicant and the applicant’s counsel, I understand why this might have been his initial reaction. As far as Mr.Grant knew, he is J.’s biological father, and has lived with and taken care of J. since J. was born. He had never heard of Mr. Eldon, and was concerned that Mr. Eldon - a total stranger to him - was trying to take away his son. This prospect was, no doubt, very distressing.

[29] I explained to Mr. Grant that, given the evidence provided by Mr. Eldon, it was my intention to order that J. be made available for a paternity test, and that if Mr. Grant did not cooperate in this regard a court could draw an adverse inference against him. I also explained that if Mr. Eldon is proven to be J.’s biological father, Mr. Eldon may indeed have a right to establish a relationship with J. and have some parenting time with J. if the court determines that parenting time with his biological father will be in J.’s best interests.

Legal Principles

[30] While I am not going to decide this motion on its merits, I will summarize the applicable legal principles so that the parties may consider them as they move forward.

[31] Section 7 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) states that the biological father of a child is recognized in law to be a parent of the child.

[32] A ruling on paternity will not, however, determine custody in this case. J. has lived with Mr. Grant since birth, and it will not necessarily be in J.’s best interest to remove him from Mr. Grant and place him in the care of the applicant.

[33] Section 21(1) of the CLRA provides that “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 aspects of the incidents of custody of the child.”

[34] Section 24 of the CLRA provides that the merits of an application in respect of custody of or access to a child “shall be determined on the basis of the best interest of the child” pursuant to the criteria listed in subsections (2), (3) and (4) of s. 24.

[35] It is not unusual in today’s society for children to have multiple parents, including biological parents and step-parents. It is important that children have an opportunity to build loving relationships with each of their parents, siblings or half siblings, and grandparents that may be part of their respective families. If the applicant is J.’s biological father, it may well be that J. will benefit from establishing and maintaining a relationship with the applicant and his family. This need not be at the expense of J.’s continued relationship with Mr. Grant and Mr. Grant’s other son.

[36] The merits of an application in respect of custody or access are determined on the basis of the best interest of the child. There is no presumption that the biological parent will be awarded custody in preference to a step-parent: Re Moores and Feldstein et al., 1973 CanLII 535 (ON CA).

[37] In R.A. v. D.P. 2017 ONSC 4522, Woodley J., summarized the legal principles for determining custody between biological and non-biological parties at paras. 33 and 34:

Courts routinely deny that a biological parent has a prima facie right to custody. (See Chapman v. Chapman, 2001 CanLII 24015 (ONCA); Parkins v. Parkins, 2006 CanLII 24450 (ONSC); Giansante v. Di Chiara, 2005 CanLII 26446 (ON SC); and Branconnier v. Branconnier, 2006 BCSC 2020; Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC).

Although a child’s relationship by blood is a relevant consideration - there is no “parental right” to custody. Biological connection is only one factor to be considered. (See Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth, [2000] O.J. No. 1452 (ON SC); Jones v. Smith, [1995] O.J. No. 4088 (Ont. Gen. Div.); Law v. Siu, 2009 ONCA 61, [2009] O.J. No. 245, 2009 ONCA (Ont. C.A.); Rochon v. Jacco, 2003 CanLII 2226 (ON SC), [2003] O.J. No. 2797, 42 R.F.L. (5th) 143 (Ont. S.C.J.).

[38] See also: Hutchinson v. Ross, 2019 ONSC 3035, at paras. 141-144; Johnstone v. Locke, 2012 ONSC 719, at para. 96.

Next Steps

[39] As indicated, the first next step in these proceedings must be an order for a legally admissible paternity test to determine whether the applicant is the biological father of J. Accordingly, I will grant an Order requiring Mr. Grant to make J. available for a legally admissible paternity test, to be paid for by the applicant. I have already indicated the probable consequences if Mr. Grant does not comply with this Order.

[40] If the paternity test confirms that Mr. Eldon is J.’s biological father, the parties should participate in another Case Conference. Now that Mr. Grant has appeared in court, retained a lawyer, and confirmed his intention to fully participate in these proceedings, I am hopeful that some progress may be made towards a settlement of this dispute.

Conclusion:

[41] This Court Orders:

a) The Respondent, Bruce Grant, shall, within 30 days of the date of this Order, cooperate with the Applicant, Kyle Eldon, to make J., d.o.b. August 17, 2019, available for a legally admissible paternity test in Peterborough, Ontario. Any costs associated with this paternity test will be the responsibility of the Applicant.

b) If the paternity test confirms that the Applicant is the father of J., the parties shall schedule a Case Conference through the Trial Coordinator’s Office.

c) I am not seized.

Justice R.E. Charney

Date: May 25, 2021