COURT FILE NO.: FC-20-00000517-0000

DATE: 2021-12-29

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: M.D., Applicant

AND

T. K., Respondent

BEFORE: Justice S. Nicholson

COUNSEL: J. Buac, for the Applicant

E. Burns, for the Respondent

HEARD: October 20, 2021

WARNING

PURSUANT TO SECTION 70 OF THE CHILDREN’S LAW REFORM ACT, THIS COURT ORDERS THAT:

1. The Court record, including any rulings/decisions/judgments arising from this proceeding, including this Order, shall use the initials for the parties, “M.D.” for the Applicant and “T.K.” for the Respondent, and “A.K.” for the child.

2. 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, or their employers.

REASONS

NICHOLSON J.:

[1] The Applicant is the biological father of 6-year old A.K., and brings a motion seeking an order for increased parenting time, as well as other relief incidental to parenting. The Respondent mother’s competing motion seeks a declaration that the Applicant is not a “parent of the child” but was merely a sperm donor.

[2] I am also asked by the Respondent to order that the parties’ names be initialized. The Applicant does not oppose that request.

[3] If the Respondent is successful on her motion, the entire application will necessarily fail. I expressed some concern about whether or not this motion was the appropriate procedure in which to make this determination. Both parties agreed that the record would be no better on the issue at a later date and that it was appropriate to determine the Respondent’s cross-motion.

Background Facts:

[4] The Applicant and Respondent have been friends since grade school. They are each now 44 years of age. They have never been in a romantic relationship.

[5] The Applicant describes that the parties decided to have a child together, as they were both in their late 30’s and single. They each wanted to have a child and agreed to conceive together. In his retelling, the Applicant describes that before the Respondent became pregnant they agreed that the child would live primarily with the Respondent and he would have regular time with him or her.

[6] The Respondent tells a different version of events. In her affidavit, she explains that she made a decision to have a child on her own as a single woman and that the Applicant was simply to be a sperm donor.

[7] As noted, the child is now 6 years old. He/she has had an ongoing relationship with the Applicant, calling him “Dad”, but according to the Respondent, the child has been informed of the limited role that the Applicant was to play in his/her life. Although the Applicant had moved to Toronto prior to the child’s birth, he moved back to London in 2018. According to the Applicant, he did so to be closer to the child.

[8] There is no written contract between the parties entered into prior to their child’s conception setting out their agreement.

Relevant Law:

[9] The relevant provisions of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as amended (“CLRA”), currently read as follows:

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

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

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

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

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

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

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

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

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

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

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

[10] Section 7 of the above noted provisions came into force on January 1, 2017, after the conception and birth of the child in this case. The legislation contains no transition provisions. Prior to January 1, 2017, the CLRA did not specifically address sperm donors. There was a similar presumption of paternity (formerly section 8). Section 4 of the CLRA at that time provided that:

“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.”

[11] This creates a gap in the legislation. As the Respondent mother argues, there was no requirement for a written contract for sperm donors at the time that their child was conceived or born. Accordingly, I agree that it is hard to fault her for not having obtained one.

[12] Section 7(4) sets out an evidentiary requirement for the purpose of avoiding the precise circumstances that have occurred in this case. Had the parties entered into such an agreement in writing, there would be no issue. In the absence of such an agreement in writing, or a statutory requirement for one, it is my view that it is appropriate to look at the surrounding circumstances in order to determine if there was an agreement that the Applicant would not be recognized as a parent.

[13] In M.R.R. v. J.M. (2017), 137 (O.R.) (3d) 605, 2017 ONSC 2655, a case also decided after the amendments came into force, but dealing with conception prior to the legislative amendments, the applicant mother wanted a child. She enlisted the help of her friend, the respondent. A child was conceived through sexual intercourse. After the child was born, the applicant arranged for a contract to be drafted by her lawyer confirming their oral pre-conception agreement that the respondent father was merely a sperm donor and would not be financially responsible for the child. Both parties signed the contract. However, the applicant subsequently brought an application for child support. The respondent brought a motion for a declaration that he was not the child’s legal parent.

[14] Fryer J. discussed at length the legislative process by which the amendments to the CLRA came about. Justice Fryer noted that the father was presumptively the parent of the child pursuant to s. 4(1) of the amended CLRA. He was also deemed to be a parent pursuant to s. 7(1) of the amended CLRA as his sperm had resulted in the conception of the child through sexual intercourse.

[15] Fryer J. concluded that s. 7(4) did not exclude the respondent from being a “parent” as that section could only apply where there was a pre-conception written agreement. She stated at para. 81 as follows:

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

[16] Notwithstanding that there was no pre-conception agreement in M.R.R., Fryer J. resorted to s. 13 of the CLRA, which she described as a general provision that permits any person having an interest to apply to the court for a declaration that a person is or is not a parent of the child. She stated as follows at para. 85:

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

[17] Accordingly, notwithstanding the inapplicability of s. 7(4) due to the lack of a written pre-conception agreement, Fryer J. relied on s. 13 to find that there was no pre-conception intention that the respondent father in that case was to assume the role of parent of the child in question. She declared that the respondent father was not a parent of the child.

[18] In Family Law Act (Re), [2016] B.C.J. No. 685, 2016 BCSC 598, a case relied upon heavily by Justice Fryer, a married heterosexual couple wished to have a child but the woman was unable to conceive. A good friend offered to assist and was artificially inseminated with the man’s sperm and gave birth to a child. The parties had no written surrogacy agreement. The friend agreed that the couple were the intended parents of the child and she renounced any parental rights. None of the parties knew that a written agreement was required under the BC legislation. Fitzpatrick J. could not, in the absence of a written surrogacy agreement, simply rely upon s. 29 of the BC Family Law Act, to give effect to their agreement.

[19] Nevertheless, Justice Fitzpatrick gave effect to the parties’ agreement, stating at paras. 43 and 44:

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

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

[20] Importantly, in both M.R.R. and Family Law Act (Re), Justices Fryer and Fitzpatrick each expressly indicated that their cases were not to stand as precedent for the proposition that parties are not required to reduce their agreements to writing.

[21] I take note of M.L. v. J.C, 2017 ONSC 7179, a decision of Madsen J. In that case, the applicant father and two women, who were spouses of one another, had purportedly entered into an oral agreement by which the applicant would impregnate both women. He was to be the sole parent of the child with J.C. and the two women were to be the parents of the other child. There was no written agreement between the parties. J.C. became pregnant. Her partner did not. The applicant sought to enforce the oral agreement so that he was the sole parent of the child.

[22] Madsen J. was referred to both of the cases cited above and noted that both judges therein had expressed that those cases should not be precedent for dispensing with the legislatively required written agreements.

[23] In denying the applicant father’s request for a declaration that J.C. was not a parent, Madsen J. stated as follows, at paras. 76 and 77:

[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 was to be on the consent of the parties. There is of course no such consent here.

[24] Accordingly, there is authority for giving affect to the clearly expressed intentions of the parties even in the absence of a written agreement in the appropriate circumstances. However, in the case where a parent is seeking a declaration of non-parentage without a written agreement, the likelihood of success appears greatly reduced. Given that at the time of A.K.’s conception there was no requirement for a written agreement under the CLRA, I am prepared to entertain the notion that if it can be established that there was a clear mutual understanding that the Applicant was only going to donate his sperm and not have any parental role in his child’s life, then the court can give effect to this agreement under s. 13 of the CLRA. However, as in the above cited cases, the evidence would have to be clear and unequivocal that the parties had formed such an intention, especially in respect of a declaration of non-parentage, where the party wishes to have a parental role. I would note that since there is now legislation in place governing the situation, the number of cases in which a court would be required to do so are likely to dramatically decrease.

Specific Evidence of a Pre-conception Agreement:

[25] The parties’ evidence is clear that as of the time of this application, there is no agreement. That does not foreclose the possibility that there was an agreement made prior to A.K.’s conception. I reiterate that the problem the court is now faced with is precisely the dilemma that s. 7(4) of the CLRA was designed to prevent. A written contract would end this inquiry in its tracks.

[26] The Respondent mother indicates that she made the decision to become a mother as a single woman. She explored all options to facilitate this, including anonymous donor clinics. She spoke to her relatives about her intentions. According to her evidence, the parties agreed that the Applicant father would have no rights, responsibilities or obligations with respect to the child. However, she did want the child to know that the Applicant was the child’s biological father. She deposes to a lengthy discussion with the Respondent in which she describes being clear that she was asking him to become a known sperm donor.

[27] The Respondent describes that when she told the Applicant that she had successfully become pregnant, his reaction was one of “shock and he appeared almost disappointed”. The next morning, he described that he had a lot going through his head. Approximately two hours later, he texted again saying he loved her and was excited to have this journey with her. The Respondent further describes being concerned with these communications, as it was completely inconsistent with their discussions leading up to conception. Later, she did describe to the Applicant that he would not be completely cut out of the child’s life, as she wanted the child to know who the father was.

[28] The Respondent contacted a lawyer to prepare an agreement after the child’s birth, setting out their pre-conception agreement. However, no agreement was ever signed.

[29] The Respondent points to the post-birth conduct of the parties. The Respondent has made all decisions concerning the child. She did not seek any financial contributions from the Applicant and, until these proceedings were commenced, the Applicant did not provide any financial support for the child. This situation persisted for the first five years of the child’s life. The parties continued to live in different cities until the Applicant’s recent relocation.

[30] The Respondent points to the absence of any mention in the parties’ text message correspondence of parenting plans once the child was born.

[31] The Respondent also describes a conversation that occurred between her and the Applicant’s mother in which it was acknowledged that the Applicant was simply supposed to be a sperm donor. I consider this evidence problematic for the purpose of this motion, as it is hearsay. However, it would be important to have the paternal grandmother’s evidence properly before the court.

[32] To the contrary, the Applicant father deposes that the parties decided to have a child together. He further states that they agreed that the child would live primarily with the Respondent but that he would spend time with the child regularly. He now believes that the Respondent preferred him to merely donate sperm but states that he would not have agreed to have a child with her had he been aware that she would attempt to limit his role. He states that when the Respondent asked him if he had any interest in being a sperm donor, he told her on both occasions that he had “zero interest in being a sperm donor and that if I had a child, I would want to be in the child’s life as the child’s father.” He deposes that two months after those discussions, she explicitly asked him if he wanted to be a father and did not use the term “sperm donor” at that time. He accordingly agreed to be a father.

[33] They did agree, according to the Applicant, that the child would live mainly with the Respondent and he would be in the child’s life as the father. In his affidavit, the Applicant describes that the Respondent is attempting to “re-write history”.

[34] The Respondent, in her material, acknowledges that the Applicant attended ultrasound appointments with her. The Applicant describes that the child was born six weeks prematurely and was in the NICU for three weeks. He took time off work and was with the Respondent and the child for the first few weeks of the child’s life.

[35] According to the Applicant, the parties had agreed that the child would have the Applicant’s last name. He says that the Respondent then changed her mind and the child bears only her last name. The Respondent refutes that she ever contemplated that the child would have his last name. She points out that the child was baptized and he was not listed as a parent on the baptism program.

[36] During the first year of the child’s life, the Applicant indicates that he would travel to London almost every weekend to see the child. The Respondent would not always allow the Applicant to spend time with the child. They did agree to an alternating Sunday schedule. Since July 30, 2020, when a temporary order providing parenting time to the Applicant was agreed to, the Applicant has spent regular time with the child.

[37] The parties have each included text messages from various time periods. I have reviewed them all.

[38] The text messages adduced by the Respondent do not clearly and unequivocally establish that the Applicant was merely a sperm donor. In fact, the messages are ambiguous, in my view. They do not assist her position.

[39] Similarly, the text messages put forth by the Applicant from prior to the child’s conception do not shed much light on the parties’ arrangement. However, the text messages from after the child’s conception do suggest at least some ongoing role for the Applicant. For example, the Respondent acknowledged that the Applicant might need a car seat. However, it must be kept in mind that the parties were close friends, such that many of the sentiments exchanged between them in relation to being “excited” to meet their child are not inconsistent with the Respondent’s position.

Disposition on Declaration of Non-Parentage:

[40] Notwithstanding the parties’ willingness to have me determine this issue on the evidence before me, I have reluctantly determined that it is inappropriate for me to do so. This is, in my view, not a just manner to adjudicate this dispute.

[41] Although I note that neither party framed their motion under rule 16 of the Family Law Rules, I consider that I am being asked to determine whether there is a genuine issue for trial. The court is empowered in determining whether there is a genuine issue requiring a trial, where it is in the interest of justice to do so, to:

1. Weigh the evidence;

2. Evaluate the credibility of a deponent; and

3. Draw any reasonable inference from the evidence.

[42] Each party deposes to a diametrically opposed understanding of their pre-conception oral agreement. I cannot, on the written material before me, determine which party’s evidence is more credible on that issue. Perhaps they were ad idem and the Applicant has since changed his mind. Perhaps there was never a firm mutual understanding. Perhaps the Respondent is “re-writing history”. Unfortunately, the reason for the situation that the parties now find themselves in is that the parties did not adequately contemplate how complicated a situation they were getting into.

[43] In my view, cross-examination of both parties before the trier of fact is required to resolve the matter. Furthermore, there are other witnesses whose evidence should be considered, specifically those individuals with whom the parties allegedly discussed their plan.

[44] On the evidence before me, I cannot conclude that there is no genuine issue requiring a trial.

[45] Having made that determination, I have considered whether the enhanced fact-finding powers might assist. This includes the ability, on a motion for summary judgment, for the judge to require that the parties call oral evidence under rule 16(6.2). This course of action is open to a judge where it would allow the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action.

[46] There is a significant backlog of cases, family and otherwise, in this region. This is a discrete issue, that if it was determined in the Respondent’s favour would effectively end the case. The evidence required to determine the issue could probably be concluded in two days. Thus, proceeding with a mini trial is an attractive option. However, as noted, the parties did not specifically rely upon rule 16 and I am not prepared to assume that they fully contemplated the implications of proceeding under the rule. It may have impacted the evidence that one or the other party chose to adduce on the motion, keeping in mind the requirement that both parties put their best foot forward on a motion for summary judgment. Frankly, both parties have alluded to other evidence that might have been adduced had there not been page limit restrictions.

[47] I can conclude, for the limited purpose of the motions before me, that the Respondent has not established that there was an agreement that the Applicant would merely be a sperm donor, with no role in his child’s life. I am not, therefore, prepared to make a declaration of non-parentage pursuant to s. 13 of the CLRA at this time. I agree with the tenor of Madsen J.’s observation about the rare circumstances that such orders would be made in the absence of strict compliance with a statutory requirement.

[48] Thus, the Respondent’s motion for a declaration of non-parentage is dismissed. This is without prejudice to her right to assert this position at trial, or on a subsequent summary judgment motion, properly made under rule 16.

Parenting Time:

[49] As noted, the Applicant has been having parenting time with the child pursuant to an order of George J., (as he then was) dated July 30, 2020. That order provided that the Applicant would have parenting time on alternate Sundays from 12:00 pm to 6:00 pm. Furthermore, the Applicant would have parenting time on Wednesdays, the hours depending upon whether or not there was school.

[50] The Applicant father seeks considerably expanded time, including specified holiday time and overnights. The Respondent mother resists his request, other than as above, on the alternative basis that the status quo should continue.

[51] Section 24 of the CLRA requires the court to consider only the best interests of the child in making a parenting order. Factors for the court to consider are enumerated in s. 24(3).

[52] In coming to my decision, I rely chiefly upon the child’s need for stability in this case. I have concerns that an increase in the Applicant’s parenting time will have a negative impact upon the child if the Applicant is subsequently declared to be a non-parent and that time is taken away.

[53] Historically, the child has had fairly regular visits with the Applicant, albeit initially at the whim of the Respondent, and then subsequently by court order. The court order is not significantly greater than the time that the Applicant was having with the child over the first 4 years or so of his/her life. A significant change in the Applicant’s parenting time, if followed by a declaration that the Applicant is a non-parent, could have catastrophic consequences for this child. At present, he/she has an established routine, one which I might add appears consistent with the Applicant’s understanding of how their relationship might be since the child’s conception. I would maintain the amount of time that they are spending together, which does not significantly alter their previously defined relationship. This is what the child has known his/her entire life. I would not alter it on a motion such as this, with the parentage issue still undecided.

[54] I might add that the order of Justice George creates an obligation to comply with the relocation provisions of s.39.3 of the CLRA. Thus, the Respondent cannot unilaterally move to California with the child without notice to the Applicant, as things presently stand.

[55] In the circumstances, I am not prepared to increase the Applicant’s parenting time at this juncture. The parenting time set out in the order of George J. dated July 30, 2020 shall continue, unless varied on consent of both parties. I am, however, prepared to order that:

1. The Respondent shall provide the Applicant with the names and contact information of the child’s health care providers;

2. The Applicant shall be entitled to make inquiries of the Respondent who shall provide to him information about the child’s school, health and medical care and extra-curricular activities; and

3. Neither party shall speak of any of the issues in this proceeding to or in front of the child or speak disparagingly about the other party to or in front of the child.

Section 70 Order:

[56] The parties agree that initializing the parties’ names in this decision is appropriate. I obviously agree. Given the nature and sensitivity of some of the evidence in this case, it is in the best interests of the child and the parties for them to be referred to by their initials in this decision.

[57] Section 70 of the CLRA provides as follows:

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

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

(i) the court and authorized court employees,

(ii) the parties and their counsel,

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

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

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

(2) In determining whether to make such 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.

[58] Section 70 applies to Part III of the CLRA. However, s. 17.3 of the CLRA extends the reach of s. 70 to parentage applications under Part II.

[59] I am referred to the decision of Kiteley J. in B.C.P. and L.P. v. A.R.P., 2016 ONSC 4518. In that case, Kiteley J. concluded that in the context of a parentage application an order sealing the court file was justified and dispensed with notice to the media.

[60] In doing so, Kiteley J. carefully considered the requirements for initializing, sealing and keeping Court records confidential. She applied the principles noted in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, which, as of the date of her decision, were the leading cases from the Supreme Court of Canada. Since then, the Court has released Sherman Estates v. Donovan, 2021 SCC 25. Those cases indicate that restrictions should only be ordered where necessary to prevent serious risk to the proper administration of justice and reasonable alternative measures will not prevent the risk and where the salutary effects outweigh the deleterious effects on the rights and interests of the parties and the public.

[61] One of the concerns of the court is always the protection of a child who is the subject of a parentage application. In this case, the child appears to be aware that the Applicant is his/her father. However, the child may not be aware that the Respondent mother is trying to limit the Applicant’s role in his/her life. That information may cause significant mental or emotional harm to the child or harm his/her relationship with one or both of the parties if disclosed to the child.

[62] Accordingly, like Kiteley J., I find that it is appropriate in this case to initialize the parties’ names and dispense with notice to the media.

[63] The parties have not sought an order sealing the file. However, I hereby grant a non-publication order prohibiting any person from publishing or making public any information that has the effect of identifying any person in the Court file. That order is broad enough to prohibit disclosure of the name of the employer of any persons identified in the Court file. Such an order is less drastic than a sealing order.

Costs:

[64] Without foreclosing the possibility of being convinced otherwise, I would suggest to the parties that given that both motions were essentially dismissed, this would be an appropriate case for each party to bear their own costs. However, should either party insist upon making written submissions to the court regarding costs, the Applicant shall file written submissions no longer than two pages in length, double-spaced by January 21, 2022 and the Respondent shall file written submissions of the same length by no later than January 28, 2022.

“Justice S. Nicholson”

Justice Spencer Nicholson

Date: December 29, 2021