Blair and Amyotte, 2022 ONSC 3159
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Brock Richards Lucas Jacobs and
Christian Joseph Coulombe
Applicants
Kelly Jordan, Emma Katz and Melissa Richa, for the Applicants
- and -
Koblyn Mary Blair and
Jake Jeffrey Harrison Amyotte
Respondents
Robyn Switzer and Eric Sadvari, for the Respondents
TRIAL HEARD: at WELLAND on:
March 28, 29, 30, 31, April 1, 4, 5, 6, 8, 2022
The Honourable Justice N. Gregson
REASONS FOR DECISION
1The Applicants, Brock Richard Lucas Jacobs and his partner, Christian Joseph Coulombe commenced a court applicated dated April 21, 2021 against the Respondents, Kobryn Mary Blair and Jake Jeffrey Harrison Amyotte.
2The Applicants are a same-sex couple. The Applicants and the Respondents, who are the child’s biological parents, initially agreed the Applicants would act as parents upon the birth of the Respondents’ child. Once the child was approximately four months’ old, the Respondents sought the return of their child to their care. The child, who is now approximately 17 months’ old, continues to be in the Applicants’ full-time care, subject to parenting-time being exercised by the Respondents.
3As such, the Applicants have no biological connection to the child, namely, Isabelle Joan Amyotte, born January 6, 2021. They seek to become her legal parents, pursuant to s. 13 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12.
4If such a designation is not possible, and regardless of same, the Applicants seek to have primary residence of Isabelle and sole decision-making responsibility for her. They are agreeable to the Respondents having ongoing, gradual increased parenting-time with Isabelle, including overnights, as of July 15, 2022 (once Isabelle is 18 months’ old). It was proposed by the Applicants that the parenting schedule be reviewed in January 2024, once Isabelle reaches the age of three years’ old.
5The Respondents oppose the Applicants’ court Application and seek to have their claims dismissed. They wish to have Isabelle immediately returned to their primary care and seek an order that they have sole decision-making responsibility for her. They are agreeable to the Applicants having contact with Isabelle a minimum of once per week, with the date and duration to be determined by the Respondents in accordance with Isabelle’s best interests.
6To be clear, this is not a case involving a legally-binding Surrogacy Agreement, nor is it an adoption case. As such, none of the usual safeguards for these types of parenting arrangements were adhered to by the parties. This is a case about everything the parties did wrong to achieve a particular goal, which ultimately led to the demise of a friendship, with a sweet little girl caught in the middle. At the end of the day, I am tasked in determining what parenting order should be made in Isabelle’s best interests.
WHAT ARE THE ISSUES TO BE DETERMINED AT TRIAL?
Should Isabelle be returned to the care of her biological parents and, if so, what type of contact should the Applicants have with her?
Should Isabelle remain in the care of the Applicants and, if so, what type of parenting-time should the Respondents have with her?
Is joint decision-making responsibility an option? If not, who should have sole-decision making responsibility?
Should the Applicants be declared as parents such that all four parties are legally recognized as Isabelle’s parents pursuant to s. 13 of the Children’s Law Reform Act?
SUMMARY OF EVIDENCE
The Parties
Brock Jacobs
7Mr. Jacobs is 30 years of age. He was born in Hamilton, Ontario and raised in the rural community of Cayuga, Ontario.
8Mr. Jacobs met Mr. Coulombe in December 2012 and they eventually moved in together in late 2013. They have been in a committed relationship since that time; a period of about 10 years. Mr. Jacobs and Mr. Coulombe lived in Toronto for a number of years and eventually moved to the Niagara Region about five years ago. In anticipation of Isabelle’s birth, they moved to their current accommodations in Welland, Ontario in the Fall of 2020.
9Mr. Jacobs has been employed by CN Railway as a conductor since April, 2018 and mainly works the night shift with Thursdays and Fridays off, while Mr. Coulombe works during the daytime and has weekends off. As such, they have organized their work schedules so that one of them is usually with Isabelle at all times. When this is not possible, they rely mainly on Mr. Jacobs’ mother, Audrey Jacobs, to provide care for Isabelle.
10Mr. Jacobs was hopeful to complete the Locomotive Engineer training, which will provide him with further employment security and benefits. He has no criminal record and no mental health issues.
11Mr. Jacobs is extremely close to his mother, Ms. Audrey Jacobs, who testified at trial. She continues to reside on a farm in Fisherville, Ontario, which is approximately a 40-minute drive from the Applicants’ residence.
12Ms. Jacobs testified she met Mr. Coulombe in 2013. Mr. Coulombe and her son resided with her for about one year from 2015 to 2016. It appeared Ms. Jacobs had a close and supportive relationship with both her son and Mr. Coulombe. Ms. Jacobs indicated she has never felt unsafe in Mr. Coulombe’s presence over the years.
13According to Ms. Jacobs and the Applicants, Isabelle spends time each week at Ms. Jacobs’ residence. At least once per week, Ms. Jacobs cares for Isabelle when the Applicants’ work schedules conflict. Ms. Jacobs had a good grasp of Isabelle’s routine and has clearly formed a bond with her.
Christian Coulombe
14Mr. Coulombe is 33 years of age. He was born in Tilsonburg, Ontario. He completed his post-secondary education programming in Journalism and Marketing at both Conestoga and Durham Colleges.
15Mr. Coulombe has been employed since February, 2020 with Skrtich Living as a Property Administrator and works Monday to Friday from 8:45 a.m. to 5:00 p.m. According to an Affidavit dated October 14, 2021 by Brandon Roger, Office Manager for Skrtich Living, Mr. Coulombe earns approximately $50,000.00 per year after bonuses, and is a valuable employee to the company.
16Mr. Coulombe’s work has him managing several properties, working with tenants and prospective tenants. He also deals with the Fire Department, the City regarding by-law infractions and police authorities regarding theft, flood or damage to the properties.
17Mr. Coulombe acknowledged he had a criminal record. He pled guilty to three sets of criminal charges over the past ten years. He first pled guilty in 2011 for assaulting a police officer and uttering threats. According to Mr. Coulombe, he threatened two construction workers who broke his window while he was attempting to sleep after a night shift. As a result, the police were called and he became angry when they would not allow him back into his residence. He stated he was fearful of the police, as he was a gay man of colour, and pushed one of the police officers. He received a suspended sentence and was placed on a period of probation. This event occurred prior to meeting Mr. Jacobs.
18Mr. Coulombe pled guilty again in 2014 to Assault with a Weapon. According to Mr. Coulombe, he had contacted Service Ontario to find out what he required to renew his health card. Upon arrival, he was advised by a representative he had the wrong documents and they accused him of lying about calling in advance. Mr. Coulombe stated he became angry and threw a clipboard towards the representative and left. It was only two years later when he learned there was a warrant out for his arrest. His sentence was suspended, he was placed on a period of probation and he completed an anger management program through the John Howard Society. The offence would have, therefore, occurred in or about 2012.
19Mr. Coulombe testified that in 2019 he was feeling mentally unwell. He argued and pushed his teacher at Trios College, and broke a fish tank. He went to the police station to turn himself in and they told him to go home, as a police officer would be sent to his residence. However, after he attempted to leave in his vehicle, he was stopped by police and was charged with Mischief, Assault, Assault with a Weapon and Dangerous Driving. The Dangerous Driving offence was later withdrawn. Mr. Coulombe pled guilty on October 13, 2021 to the balance of the criminal charges. Mr. Coulombe received a global 90-day conditional sentence, which he served.
20In her Reasons on Sentencing dated October 13, 2021, Zivolak J. noted Mr. Coulombe had a prior record displaying some aggressive behaviour and had mental health issues for which he was getting proper medical attention. Zivolak J. believed the chain of events to be situational and felt Mr. Coulombe had taken positive steps and his mental health had stabilized. Zivolak J. also recognized Mr. Coulombe had been on release terms for two years and had experienced no issues.
21Mr. Coulombe testified he pled guilty to these criminal offences as he wanted to accept responsibility for his actions. He was regretful for his behaviours.
22Mr. Coulombe has been diagnosed with psychiatric issues. He testified that his mental health issues go back to his adolescence, due to trauma he experienced as a youth. He was initially given a diagnosis of Bipolar Disorder some years ago. In April 2019, after the incident at the college, he was aware he was not in good mental health and wanted help to deal with it. He worked with his doctors, including psychiatrist Kurt Moyst, to start a new mental health journey. Dr. Moyst’s impression was that Mr. Coulombe suffered from Post-Traumatic Stress Disorder (“PTSD”), Obsessive Compulsive Disorder (“OCD”) and had substantial Borderline Personality traits.
23Mr. Coulombe indicated he had been candid with the medical professionals he had seen since 2019, as he wanted to obtain a firm diagnosis and treatment plan. In 2020, at his request, Mr. Coulombe met with Psychiatrist, Dr. Alphie Pallen, in his quest to deal with his mental health issues. Mr. Coulombe was diagnosed with Bipolar Type 2 Disorder and was prescribed a mood stabilizer. A recent letter dated August 7, 2021 from Mr. Coulombe’s physician, Dr. Geoffrey Sinton, confirmed that Mr. Coulombe has symptoms of generalized anxiety and depression, suffers from OCD and has symptoms of PTSD. Dr. Sinton confirmed Mr. Coulombe was medically-compliant.
24Mr. Coulombe testified that although this litigation was stressful, he had been feeling mentally well. He stated he was much more cognizant of his mental health issues and was now focused on better nutrition and physical activity to improve his mental health. As a result of his medication and lifestyle changes, he felt he was sleeping better and, as a result, he was not as impulsive with his decisions. He indicated he remains vigilant and committed to his mental well-being and has the support of a mental health nurse, if required. Mr. Coulombe further attributed his positive gains to a supportive network of friends who were aware of his mental health issues. This was also confirmed in some of the third-party affidavits tendered into evidence.
25During his evidence, Mr. Jacobs testified he was keenly aware his partner had mental health challenges. However, he, himself had not experienced the anger issues as described on Mr. Coulombe’s criminal record. He believed those were isolated incidents and felt Mr. Coulombe had been doing well, largely due to proper treatment and new medication.
26The Applicants supplied affidavits from a number of friends/supports including Cora-Lee Sharon Powell, Lily St. Andrews, Kendra Van Craenenbroeck, Ricky Chase and Marina McLaughlin. They all spoke to the positive character attributes of the Applicants, their love and care for Isabelle and observations of Mr. Coulombe’s non-aggressive demeanour and behaviours, despite his criminal record and mental health issues.
Kobryn Blair
27Ms. Blair is 29 years of age. She graduated from Fleming College in 2014 from the Urban Forestry Technician program.
28Ms. Blair’s parents separated when she was a young girl. She has one sister who currently lives in Prince Edward Island. After separation, Ms. Blair’s mother began a new relationship and, as a result, Ms. Blair has five step-siblings.
29Ms. Blair lived with her mother after her parents’ separation but continued to see her father on a regular basis until recently. Ms. Blair testified her father is an alcoholic and she now realizes that she acted as his caretaker, especially once she was older. Ms. Blair stated she was no longer prepared to tolerate her father’s addiction and emotionally abusive behaviours. As a result, she was not currently communicating with him.
30Ms. Blair described having a close relationship with her mother, who resides in the Parry Sound area with her step-father.
31Ms. Blair met her husband, Kevin Alexander, when they were in Grade 10. They were together from 2011 to 2017, when they ultimately married. Ms. Blair testified she now realizes she also acted as a caretaker to her husband, as she was primarily responsible for the household while working full-time in order to support her husband’s endeavour of operating a small business.
32Ms. Blair met Mr. Jacobs while at Fleming College, as they were in the same chemistry class. As a result, they formed a study group and began to attend each other’s homes and socialize together. Ms. Blair eventually met Mr. Coulombe as well and stated they all enjoyed each other’s company. During the time while they were at college, Ms. Blair indicated the Applicants would joke about having her act as a surrogate for them.
33Ms. Blair confirmed the Applicants also met her husband, Mr. Alexander, and they would all spend time together. Once college was completed, they would message one another about once per month and spent time together three to four times per year. Thereafter, there were more “serious” discussions about Ms. Blair acting as a surrogate for the Applicants, however, Mr. Alexander insisted she needed to wait until they had their own children first. Ms. Blair testified she and Mr. Alexander were passively trying to conceive, however, they never had children. This was in contrast to Ms. Blair’s Affidavit sworn April 30, 2021 when she stated she and Mr. Alexander had been seriously preparing to have children before they separated, and she was looking forward to becoming a mother.
34Ms. Blair testified she was open to being a surrogate for the Applicants. She believed this was a way to help her good friends become parents.
35Ms. Blair’s marriage to Mr. Alexander ended in or about September, 2019. Thereafter, she met Mr. Amyotte online in November, 2019 and in mid-December, 2019 they had their first date. The next day, Ms. Blair travelled to the East Coast for a planned trip to stay with a friend, but maintained ongoing contact with Mr. Amyotte. She returned to the matrimonial home with Mr. Alexander located in Courtice, Ontario on or about January 17, 2020.
36Upon the breakdown of her marriage to Mr. Alexander, Ms. Blair advised the Applicants she felt this was a good time for her to act as their surrogate. As such, the Applicants and Ms. Blair began to have more serious discussions about this prospect in the late Fall/Winter of 2019.
37Mr. Amyotte moved into Ms. Blair and Mr. Alexander’s matrimonial home with them and Mr. Alexander’s girlfriend in March, 2020. When the matrimonial home sold, Ms. Blair and Mr. Amyotte jointly purchased a home in Lindsay, Ontario on July 6, 2020, where they remained until their move to Thorold, Ontario in mid-September, 2021.
38Ms. Blair was aware Mr. Amyotte had a three-month-old child with Ms. Holly Smith when they met. Ms. Blair attended on a few occasions at Tim Hortons from January, 2020 to March, 2020 to accompany Mr. Amyotte for his two-hour supervised visit with his son, Abel. According to Ms. Blair and Mr. Amyotte, Ms. Smith refused further visits with Abel due to the Covid-19 pandemic. Ms. Blair described Ms. Smith as a very cold and clinical parent towards Abel, as compared to Mr. Amyotte, whom she described as loving towards his son.
39In January, 2020, Ms. Blair secured the services of Janna Comrie, a Registered Psychotherapist, as she was having a hard time dealing with the end of her marriage and with her father’s behaviours. Ms. Blair presently continues to have monthly trauma therapy with Ms. Comrie.
40During Ms. Blair’s Examination for Discovery on August 12, 2021, she indicated that she began to have thoughts of self-harm in Grade 9 and during her relationship with Mr. Alexander. She stated she cut herself in Grade 9 and sometime again in 2019. Ms. Blair indicated she never disclosed this information to her doctor but had told Mr. Amyotte. I saw no reference to any of these mental health issues in the counselling notes provided by Ms. Comrie and only references made by the mother was that she suffered from depression and anxiety. In fact, a review of her medical records reflected she told her OBGYN that she had no history of anxiety, depression or mental health issues. There was no evidence tendered during the trial regarding the extent of the mother’s mental health issues, or whether she had received treatment for same over the years.
41At trial, Ms. Comrie testified that during her sessions with Ms. Blair they had been working on having Ms. Blair set boundaries with others and speaking up for herself and her needs rather than always worrying about pleasing others. As such, the mother suggested at trial that, as a result of always wanting to please and help others, she had not been frank with the Applicants about her true feelings regarding giving up her baby.
42Ms. Blair confirmed she had no criminal record.
43Ms. Blair recently secured employment on April 11, 2022 with Truly Nolan, a pest control company. She estimated she would be working 40 hours per week from 7:30 a.m. until the work was done or approximately 4:00 p.m. Ms. Blair was looking to obtain her exterminator certification in the future.
Jake Amyotte
44Mr. Amyotte is 31 years of age. His mother, Mara Louise Messenger, resides in Richmond Hill, Ontario, and his father resides in Blackstock, Ontario. His parents separated when he was six months’ old. He lived with his mother and saw his father on weekends. Both of his parents re-partnered and, as a result, he has five half-siblings. Mr. Amyotte is close to his mother, whom he sees regularly.
45Mr. Amyotte attended Durham College, Centennial College and a private college, and received his diploma for Motorcycle and Power Sports which was followed by an internship. He has been mainly employed as a motorcycle technician. When he met Ms. Blair, he was living in Oshawa and working for G.P. Bikes and earning about $50,000.00 gross per annum. He stated he had to terminate his employment when the mother was in her last month of pregnancy so he could assist her, as she suffered from nausea. His employer was not willing to work with him in having some time off. He ceased his employment in late November/early December, 2020. Thereafter, he worked for Amazon for a few weeks in December, 2020 but left this employment as he could earn more on Employment Insurance benefits. He collected Employment Insurance benefits for three months and was off work from Isabelle’s birth on January 6, 2021 to March, 2021. Thereafter, he secured work for Cameron Cycle near Peterborough, Ontario from March, 2021 until the parties’ relocation to Thorold, Ontario on September 15, 2021.
46When Mr. Amyotte and Ms. Blair relocated from Lindsay, Ontario to Thorold, Ontario on September 15, 2021, Mr. Amyotte was able to secure employment with Clare’s Cycle and Sports, where he presently works, and estimates he can earn up to $60,000.00 from his salary and bonuses. Mr. Amyotte appeared content with his current employer.
47Mr. Amyotte has no criminal record and no mental health issues.
48Mr. Amyotte testified he met Holly Smith in the Fall of 2018, and described his relationship as emotionally abusive and controlling. The parties never lived together and Ms. Smith became pregnant after three months of dating. They separated shortly thereafter. Mr. Amyotte indicated he was not on speaking terms with Ms. Smith during her pregnancy and was unaware when she went into labour and when she gave birth on August 16, 2019. It was Ms. Smith’s father who called him after the birth.
49Mr. Amyotte indicated Ms. Smith permitted him supervised visits for a few hours on weekends. His last contact with his son, Abel, was in March, 2020. Mr. Amyotte stated Ms. Smith used Covid-19 to cut off ties with his son. During his Examination for Discovery on August 12, 2021, he admitted not taking any proactive steps to resolve the situation with Abel, noting he was not financially able to do so, and a lawyer had told him he “was screwed”.
50Mr. Amyotte indicated he had paid some child support to Ms. Smith in the amount of $400.00 per month as per their verbal agreement on the basis that he could see his son. Mr. Amyotte testified that since he was paying for this litigation and was not seeing Abel, he had not made child support payments since March, 2020.
51On November 18, 2021, Ms. Switzer (Mr. Amyotte’s legal counsel) left a voicemail message for Ms. Smith wanting to discuss a parenting plan for Abel on behalf of Mr. Amyotte. In response, a letter dated January 4, 2022 from legal counsel, Ms. Morris, stated she had been retained by Ms. Smith. Since Ms. Smith was living in Smiths Falls, given Abel’s young age and the fact Mr. Amyotte has only been minimally involved with Abel since his birth, Ms. Morris suggested virtual visits be established as a starting point or in-person supervised parenting time in Smiths Falls.
52In response to Ms. Morris’ letter, Ms. Switzer sent a letter dated January 18, 2022 asking for proof that Ms. Smith had recognized Mr. Amyotte as the father on Abel’s birth certificate, stating that, otherwise, Mr. Amyotte was seeking paternity testing. On the following day, Ms. Morris forwarded a reply indicating Ms. Smith was confused, as Mr. Amyotte’s father proposed paternity testing in late 2019 to which Ms. Smith agreed to. However, neither Mr. Amyotte nor his father ever took any steps to do so. Since then, Mr. Amyotte had, at various points, requested to spend time with Abel and visits were arranged. Ms. Smith again agreed to paternity testing.
53During Mr. Amyotte’s cross-examination he confirmed that he had not agreed to either virtual or supervised parenting time with Abel, as he felt it was not meaningful time.
54It was rather disappointing to learn Mr. Amyotte had taken no steps until this litigation was well underway to secure parenting-time with his son. He had a laissez-faire approach about the subject and did not appear to appreciate that he had an ongoing obligation to pay child support for his son. When he was provided with a transitional plan to re-connect with his son, he chose not to do so, putting his interests over that of his son’s.
55The Respondents also supplied third-party Affidavits from Mr. Amyotte’s mother, Ms. Mara Louise Messenger, and Ms. Blair’s mother. Both felt the Respondents had been lied to and manipulated by the Applicants, especially once Isabelle had been placed into their care. They were supportive of Isabelle’s return to her parents.
PRE-CONCEPTION DISCUSSIONS
56The Applicants and Ms. Blair described having a great friendship with one another for a number of years, often spending time together when possible. Mr. Jacobs testified they vacationed together, he and Mr. Coulombe stayed over at Ms. Blair and Mr. Alexander’s home and he recalled Ms. Blair coming to stay at his mother’s residence.
57The Applicants confirmed they began to have more focused discussions in the Fall/Winter of 2019 about Ms. Blair acting as a surrogate for them. Mr. Jacobs testified, and Ms. Blair confirmed, that she reached out to him and Mr. Coulombe to state the timing was right for her and she was prepared to be a surrogate for them. According to Mr. Jacobs, he and Mr. Coulombe were overjoyed with gratitude for Ms. Blair’s decision. Mr. Jacobs and Mr. Coulombe testified they had wanted to be parents for a long time.
58Ms. Blair advised Mr. Amyotte she was planning on being a surrogate for her friends and felt he should meet the person who could father her child. According to Ms. Blair, Mr. Amyotte had no issue with her surrogacy plan. Mr. Amyotte confirmed during his evidence that he supported Ms. Blair’s decision to act as a surrogate, noting that it was “her body, her choice”.
59The parties all met at East Side Mario’s Restaurant in Oshawa, Ontario on January 22, 2020. Ms. Blair testified she did not recall specifically speaking about surrogacy, other than perhaps who was going to call the fertility clinic. I note during her Examination for Discovery Ms. Blair indicated they spoke about surrogacy and confirmed Mr. Jacobs would be the one to provide his sperm. Mr. Amyotte confirmed this was the discussion during his trial evidence.
60During their evidence, both Ms. Blair and Mr. Amyotte testified they showed a picture of Abel during dinner and the Applicants joked that Mr. Amyotte could be their sperm donor because Abel was such a cute baby. As far as both Ms. Blair and Mr. Amyotte were concerned, no formal Surrogacy Agreement was reached. During Mr. Amyotte’s Examination for Discovery he reiterated they never spoke about he and Ms. Blair conceiving a child for the Applicant’s benefit.
61According to Mr. Jacobs, during their discussions about Mr. Amyotte not being able to see his son, he and Mr. Coulombe stated they were fine with Mr. Amyotte being the sperm donor of their child. Ms. Blair made it clear to them she intended to be their surrogate and Mr. Amyotte was on board with whatever she wanted.
62During Mr. Coulombe’s evidence, he indicated they spoke again about Ms. Blair acting as a surrogate for them. They had agreed they would be using Mr. Jacob’s sperm for insemination. Mr. Coulombe recalled there was some conversation about Mr. Amyotte’s sperm and essentially that if Ms. Blair and Mr. Amyotte had a baby, he and Mr. Jacobs would take/adopt their child.
63The Applicants began looking into fertility clinics to see who could assist them, however, the fertility clinics were not taking on new cases due to the Covid-19 pandemic.
64In the meantime, Ms. Blair made an appointment with her physician to discuss her desire to be a surrogate. Her physician was away, therefore, she had a conversation with a visiting physician on February 8, 2020 who knew little about the subject. She was eventually told it was up to the Applicants to arrange the process through a fertility clinic and the clinic would eventually contact her.
65In March, 2020 Ms. Blair had a pregnancy scare. According to Mr. Coulombe, Ms. Blair asked them if they were willing to take her child if she and Mr. Amyotte conceived a baby, and he and Mr. Jacobs agreed.
66The Applicants testified they believed they had entered into a verbal surrogacy arrangement with Ms. Blair. All discussions between the Applicants and Ms. Blair were clear that the intent was to permit the Applicants to become the legal parents of any child conceived by the mother, or certainly take on the role of being parents for the child.
67Both Applicants testified Ms. Blair told them she was not ready to have a baby and would not proceed with an abortion. Therefore, any child she conceived would go to them.
68The evidence was very clear the legislative requirements of a surrogacy were not met. The parties never entered into a written Surrogacy Agreement prior to conception and never obtained independent legal advice regarding said agreement. No such legally-binding agreement existed.
AFTER CONCEPTION DISCUSSIONS
69Ms. Blair testified she believes she conceived Isabelle in late March or early April, 2020. Both she and Mr. Amyotte stated the pregnancy was not planned and was unintentional, despite the fact they were not using any form of birth control. The mother’s medical records confirmed she told her OBGYN the pregnancy was not planned and the father was Mr. Amyotte.
70The Respondents learned of the positive result through an at home pregnancy test in mid-May, 2020. Both Ms. Blair and Mr. Amyotte testified they had a few conversations about the pregnancy. Both noted they were in a new relationship and their housing situation was not yet resolved. Ms. Blair was going through a divorce and Mr. Amyotte was dealing with not being able to see his son. They did not want to see the child go into foster care but agreed they were not ready to parent a child. Ms. Blair testified she believed the Applicants could offer stability and felt it was best for the child to be placed into their care.
71The parties confirmed Ms. Blair contacted the Applicants to find out whether they were still willing to parent and care for the now conceived child, since there was no longer a biological/genetic connection to them. The Applicants advised Ms. Blair of their desire to become parents to the child, regardless of this fact.
72Ms. Blair reported during her Examination for Discovery that she advised her mother, Christine Kobryn, about her pregnancy when she was about 12 weeks along, and there was a possibility she would be acting as a surrogate, as the baby would possibly be cared for by Mr. Jacobs and Mr. Coulombe, but they had not yet done anything legal about this arrangement. According to Ms. Blair, her mother was supportive of the plan. Ms. Blair stated she believed she would be seeing Isabelle regularly and as much as she could, despite the fact she would be working full-time and lived three hours away at the time from the Applicants.
73According to Ms. Blair, her sister and her step-siblings were happy and supportive of her, but concerned about the after-effects once Isabelle was placed with the Applicants.
74Ms. Blair stated she felt she would still be Isabelle’s mother and a part of Isabelle’s life, but Mr. Jacobs and Mr. Coulombe were to be Isabelle’s main caregivers.
75During his Examination for Discovery, Mr. Amyotte stated he told his family about the pregnancy and told them the Applicants would raise the child, but he and Ms. Blair would have a heavy impact on the child’s life, and that they would be in the child’s life as much as possible. His family was supportive of their decision. It was unclear to me as to whether Mr. Amyotte had actually advised his family that he was the biological father of the child, as Mr. Amyotte’s mother suggested in her trial Affidavit dated October 15, 2021 that she was not aware her son was the father of the child until much later, in April 2021, when this litigation was started.
76The Applicants testified they spoke to Family Law lawyer Ms. Cheryl Appel sometime in May or June 2020 about the possibility of adoption. However, they were told by Ms. Appel that since Mr. Coulombe had a criminal record, combined with the fact they were a same-sex couple, their chances of adopting a child was remote. This was communicated to the Respondents. During Mr. Coulombe’s Examination for Discovery on August 10, 2021, he further confirmed he told Ms. Appel they had a surrogacy agreement with their friend who ended up getting pregnant by her boyfriend instead by accident. Mr. Coulombe wanted to know how they should proceed as a result.
77On May 27, 2020, Ms. Blair advised her therapist, Ms. Comrie, that she and Mr. Amyotte had purchased a home and she was pregnant. Ms. Blair advised Ms. Comrie she would be doing an adoption with a couple for whom she was going to be a surrogate.
78On June 8, 2020, Ms. Blair wrote in a Facebook Message to the Applicants that she felt they all needed to go to a lawyer and get the details of their agreement into a legal document stating:
“like you guys taking custody over the kid and it being kinda like an open adoption so we can stay in contact and be open with medical histories if something were to come up. Also us visiting would be good”.
79In response, Mr. Coulombe indicated he would reach out to a paralegal while the mother stated she knew a lawyer and would pick her brain. Mr. Coulombe stated that he knew his criminal record would stop them from being able to adopt, but he did not know if it counted for a “placed adoption”.
80Ms. Blair responded:
“I feel like you can because it would be literally me saying I want these people to have this baby. One of you could even sign the birth certificate so you would be an automatic guardian. We all know it’s a lie but we all want this”.
81Mr. Coulombe responded:
“Could say Brock is father on the birth certificate and I could adopt from Brock”.
82When the mother agreed, Mr. Coulombe then stated they would look at his criminal record for an adoption. Ms. Blair replied:
“That’s stupid because a crack head can go home with their baby and no one can stop them. But I guess? I can’t see why you guys wouldn’t be able to become their legal guardians in everything. I get they need to make sure I’m not having this baby under pressure but still. What is adopt ready – will you guys be unable just because of the record?”
83Thereafter, Mr. Amyotte posted:
“Why don’t you just put Brock or Christian as the father and then Kobryn can sign over full custody. Shouldn’t be more complicated than that. From what I’ve dealt with you don’t even need a paternity test for anything.”
84The exchange by the parties was in complete contrast to Ms. Blair’s Affidavit sworn April 30, 2021, when she asserted that Mr. Coulombe pressured her to lie on the birth certificate.
85The evidence of the Applicants suggested that during the entirety of the pregnancy, both Respondents made it abundantly clear the child Ms. Blair was carrying was going to placed into their care and be raised by them. This was also confirmed by the Respondents. As such, the Applicants believed they had verbally entered into a traditional surrogacy arrangement with the Respondents, who were essentially donating both their egg and sperm, and the Applicants would be the parents of any child born.
86A Facebook Group Chat was created by Ms. Blair early on during her pregnancy in June 2020 and continued until April, 2021 between the four parties (mostly between Ms. Blair and Mr. Coulombe) when the litigation was commenced. There are well over 700 pages of messages between the parties. The Facebook Group Chat was to permit transparency by all of the parties to discuss next steps and exchange research notes in an attempt to legalize the Applicants becoming parents to Isabelle. Although Ms. Blair suggested it was more the Applicants and, in particular, Mr. Coulombe who was researching the subject, the evidence demonstrated Ms. Blair and Mr. Coulombe, on behalf of their partners, were actively trying to come up with a solution.
87In fact, on June 9, 2020, Ms. Blair reached out by Facebook message to Ms. Margaret Elizabeth, who is a family law lawyer and a friend of a friend. Ms. Blair asked Ms. Elizabeth if there was a process where she could sign over legal guardianship of a child to a person who is not their biological father without an adoption. Ms. Elizabeth responded she could give custody of the child, but it would not absolve her of her parental rights and obligations (ie. child support) and, depending on the situation, the biological father would need to consent.
88Ms. Blair explained she was going to be a surrogate for a male couple and one of them was going to be the bio dad. However, she and Mr. Amyotte did an “oops” and now she was pregnant. They all talked about it and the couple was more than happy to have the child since she and Mr. Amyotte don’t and its more natural. So now they were looking for a way for the couple to be the legal parents.
89Ms. Elizabeth responded that perhaps adoption was the best option. Ms. Blair responded they would not be able to do an adoption, as one of the males had a criminal record, although it was not serious. Ms. Elizabeth indicated if they proceeded with an adoption, they would need to speak with lawyers and go over what it means and what they were giving up, but it can be done. Ms. Blair responded they all wanted this and they knew lawyers were required. Even the possibility of her attending counselling to make sure this is what she wanted was fine, but she was already attending regular therapy.
90Ms. Elizabeth encouraged all four of them to get counselling and Independent Legal Advice certificates stating they would require family law lawyers. She noted the process was mostly meetings and paperwork.
91On that same date, Ms. Blair reported her conversation with Ms. Elizabeth to Mr. Coulombe, who queried what Independent Legal Advice certificates were. Ms. Blair responded she was not entirely sure, but it was “basically something that states she knows her rights and understands what she was agreeing to”.
92I did note that Ms. Blair also wrote on the Facebook Group Chat on December 9, 2020 that:
“even if it is just Brock as her (referring to Isabelle) legal guardian we can try that way, she can still live with you guys still and at the end of the day she will be yours. It does not look like it needs to be a home study from what I can see. Just a criminal record and he can pass”.
93On this same date, Ms. Blair sent a snapchat message to the Applicants in response to their suggestions they would pay for pregnancy expenses stating:
“I’ll look into the reimbursements because why not. I know there has to be a way that this all good and what not. I was talking to a lady from the private adoption agency and she was saying the criminal record is something they look at but what and when is a factor as well as anything they did after to show they learned from that mistake. It brought me a lot of hope. She will speak to her supervisor and get back to me”.
94At the time of Ms. Blair’s pregnancy, she was employed with Kobe Nurseries earning approximately $35,000.00 gross per annum. Ms. Blair noted she left that employment in July, 2020 due to nausea from the pregnancy and having to work in the heat. As a result of the loss of employment, this affected her financially and she had to rely on her savings. However, it was put to Ms. Blair during cross-examination that she would have had to terminate her employment, as she and Mr. Amyotte moved from Courtice, Ontario to Lindsay, Ontario on July 6, 2020, when they purchased a home together. A text message from Ms. Blair to the Applicants dated June 10, 2020, also noted that it was her intention to quit her employment once she moved, as she was also thinking of attending school the following year. The evidence suggested the mother was intending on enrolling into the Police Foundations Program.
95In fact, a Facebook post by Ms. Blair on October 2, 2020, announced she was 25 weeks pregnant and working with a fitness trainer, as she had personal goals to meet before going back to school and passing the OPP training test. Ms. Blair did secure work at Home Depot for a few weeks near the end of her pregnancy, but thereafter was again without work until March, 2021. Thereafter, Ms. Blair worked for EZ Financial for a few months until she accepted employment with Canada Post (call center) in August, 2021, until her recent employment in April, 2022 with Truly Nolan.
96All parties confirmed the Applicants were involved in the pregnancy and provided expenses to Ms. Blair to support her, which included medication, vitamins, maternity clothes, a gym membership/personal trainer and $150.00 fee for a birthing class. Ms. Blair sent the Applicants pictures of the ultrasounds and advised them of the outcome of all medical appointments. The Applicants were not able to attend the medical appointments due to Covid-19 restrictions.
97In October 2020, all four of the parties went to a cottage to celebrate Ms. Blair’s birthday and spent time together. The plan for the Applicants to parent Isabelle was still forging ahead.
98In late November 2020, Mr. Amyotte advised the Applicants he and Ms. Blair were having financial difficulties. The parties verbally agreed the Applicants would provide $300.00 per month to the Respondents to assist them with the pregnancy expenses. It is unclear how long these payments were to be paid. The Applicants made payments totaling $1,450.00. No payment was made in January, 2021. Both Mr. Jacobs and Ms. Blair confirmed the last payment was made in February, 2021.
99Mr. Jacobs testified that during Ms. Blair’s pregnancy he and Mr. Coulombe met the Respondents at a restaurant to learn and celebrate the gender of the baby. Thereafter, a gender reveal party was organized by the Applicants at Mr. Coulombe’s office space. They invited close friends and family, including the Respondents, who were all present for this important revelation.
100During Ms. Blair’s pregnancy there were Facebook posts between Ms. Blair and third parties where she indicated she was acting as a surrogate. For example, when J. Bekelmans congratulated Ms. Blair on her pregnancy, Ms. Blair responded:
“thank you but it’s not mine. I’m just room and board until its born. It’ll go live with its dads”.
101In October, 2020, Ms. Blair posted:
“Thank you for all of the love guys! As excited as I am for this baby I should say it is not my time to be a mommy yet. I am lucky to share this adventure with its 2 dads. We are all so excited to welcome this little one into the world.”
102During a session with her therapist, Ms. Comrie, on October 22, 2020, Ms. Blair was asked how she was feeling about the pregnancy and adoption. Ms. Blair indicated it was getting more and more real, but she had always wanted to be a surrogate for someone in need.
103The Applicants testified they were the ones who decided Isabelle’s name (they, in fact, had chosen Izabella Johanna King Jacobs) prior to her birth and registration.
104Mr. Jacobs testified that Isabelle’s nursery was decorated with a country John Deere theme as a nod to his upbringing in the countryside and his love of the outdoors. He stated that he and Mr. Coulombe had all of the necessary items required for a child upon birth.
105The trial evidence revealed formal adoption was never considered by the parties as the Applicants had been told they would not be approved as prospective adoptive parents, despite the fact the parties, on occasion, referred to their arrangement as an adoption.
106According to Mr. Jacobs, he felt that all of them believed their verbal agreement for the Applicants to be parents of the Respondent’s child was binding. They had learned through contacts with the Ministry that if they were all present at the birth, Isabelle’s birth could then be registered on the Statement of Live Birth reflecting he and Mr. Coulombe as Isabelle’s legal parents.
107However, in early December, 2020, at the request of Ms. Blair’s physician, Ms. Blair met with Ms. Amber Ballam, the hospital social worker, and explained the parties’ intentions. Ms. Blair advised Ms. Ballam she and Mr. Amyotte were not ready to become parents and Mr. Amyotte was agreeable to the surrogacy arrangement with the Applicants. Ms. Blair indicated that all four parties wished to be present for the labour and delivery and she wanted the Applicants to be the first to hold the baby. Ms. Ballam testified that if there was a pending adoption or a valid written Surrogacy Agreement, the hospital would be agreeable to these arrangements but since they had neither, she would need to obtain approval. Ms. Ballam made legal enquiries and, through discussions with hospital management, she advised Ms. Blair on December 8, 2021 that not only would Mr. Jacobs and Mr. Coulombe not be able to be present at the delivery, the hospital would not permit the Statement of Live Birth to indicate the Applicants were the child’s legal parents. As such, the parties came to the realization they had nothing legally-binding reflecting that the Applicants would be Isabelle’s legal parents.
108Ms. Blair testified she had been told by Ms. Ballam she needed to speak with a lawyer to ensure things were done legally. Ms. Blair stated she attempted to contact the lawyers suggested by Ms. Ballam, but since it was approaching the Christmas holidays, she had no success. Despite same, Ms. Blair also testified she was relying on the Applicants to do the homework. Mr. Amyotte confirmed the Applicants had promised to handle the legalities vis-à-vis Isabelle.
109Mr. Jacobs testified he reached out to Ms. Michelle Flowerday, who was a fertility lawyer in Toronto, on December 16, 2020. He initially communicated with her on December 28, 2020. He was advised by Ms. Flowerday the parties would have required a pre-conception written Surrogacy Agreement for things to have been legally-binding. Ms. Flowerday advised Mr. Jacobs by email on December 29, 2020 that if the surrogate and sperm donor agreed to help them conceive the child prior to the conception, their case fell into a loophole of sorts and she may be able to assist them. Ms. Flowerday was ultimately retained on January 12, 2021 by the Applicants. According to Ms. Flowerday’s evidence, she believed that although the Applicants had executed and paid for her retainer, as they were the intended parents, she believed she was acting on behalf of all four parties.
110Ms. Flowerday testified that it was her intention to bring an Application after the birth of the child to seek a Declaration of Parentage in favour of the Applicants and rebut the presumption of parentage for the Respondents. It was her belief from conversations she had with Mr. Jacobs and Ms. Blair that all four parties were on the same page and wanted the same outcome.
111On December 29, 2020, Ms. Blair advised her therapist, Ms. Comrie, that she was feeling anxious. The dads had not secured a lawyer and the proper paperwork. Ms. Blair was worried about what was happening and about a conversation she had with a lawyer about the situation. Ms. Blair questioned what would happen if the dads could not adopt Isabelle, what would she and Jake do? Ms. Blair noted she had asked the dads several times about the paperwork and was assured they were taking care of it. Ms. Blair indicated they were having a hard time finding a lawyer, as they had left it so late, and because one of the dads had pending charges regarding an assault with a clipboard, for which she felt he would be exonerated.
112Ms. Comrie suggested Ms. Blair could, herself, contact a lawyer and find out exactly what needed to happen. Ms. Blair indicated she had made calls, but due to the holidays and lockdown, she had no success. They discussed potential scenarios. Ms. Blair stated that if things did not go well the dads would hate her. Ms. Blair stated the dads were good parents. They discussed Ms. Blair having temporary custody or having her go stay with the dads until all had gone through. Ms. Blair felt she and Mr. Amyotte had nothing and they were not at all prepared to bring Isabelle home, so she could not imagine that option. Ms. Comrie suggested Ms. Blair get proper legal advice.
113A Facebook message from Ms. Blair to Mr. Jacobs dated December 29, 2020 stated the following:
“What was asked of Flowerday? If she doesn’t feel like she can write a contract that she feels has false information, what contract can she write? I know it’s not perfect but even if we get a contract to say Jake and Kobryn are the bio parents and give guardianship to Brock and Christian. Is that not a good enough agreement? If it pleases the world that way and you guys have her, that’s all that matters in the end. I know private adoption is still an option but at least we can have something that says in mine and Jake’s absence, you guys can make legal choices.”
114In response, Mr. Jacobs indicated it would be a surrogacy and was told by Ms. Flowerday that Ms. Blair and Mr. Amyotte would say they were the donors and the baby was conceived through insemination, noting he did not understand why it would be written that way rather than by intercourse, and was following up by email with Ms. Flowerday. He went on to state nothing would be done until after the birth and they would have to file for a Declaration of Parentage. Mr. Jacobs wrote a further message to Ms. Blair that she would be noted as the egg donor and Mr. Amyotte as the sperm donor.
115Ms. Blair responded:
“Okay. Even without an agreement, everyone is still in agreement that Izzy will be going home with you guys after her birth”.
116Ms. Blair again, reiterated they needed a plan.
117A Snapchat message from Mr. Jacobs was sent to Ms. Blair on December 31, 2020, which reproduced an email from Ms. Flowerday explaining that if the surrogate and sperm donor agreed to help them conceive the child prior to conception, their case fell into a loophole, as they had no written agreement. Ms. Flowerday stated it may be worth a shot to bring a Parenting Application, but she could not guarantee the outcome, given the lack of a written agreement. She questioned whether all four parties were prepared to swear to the truth of those statements regarding the intention to conceive.
118Ms. Blair responded to Mr. Jacobs and said:
“I’ll send to Jake. I know we said that if we ever did get pregnant, we would offer you guys to have it first so even though the act wasn’t to get pregnant, the result was the same”.
119Mr. Jacobs responded:
“And when you had your pregnancy scare and asked us right?”
BIRTH
120Isabelle was born on January 6, 2021, in Port Perry, Ontario. The Applicants were advised by Ms. Blair she was in labour and the Applicants travelled from Welland, Ontario to the Respondents home in Lindsay, Ontario, where they stayed until the following day when they returned home with Isabelle.
121Ms. Blair testified she was overjoyed after Isabelle’s birth. Mr. Amyotte testified the day of his daughter’s birth was a great day, as they were able to be a family for one day.
122According to Ms. Ballam, she attended at the hospital to see the Respondents on January 7, 2021. She observed the Respondents to be relaxed and doing well with their baby. She was advised by the Respondents the Applicants were at their home and they were disappointed they could not be present for the birth. Ms. Ballam was advised by the Respondents they were still certain with their plan to have the Applicants parent and they were going to act as aunt and uncle and be babysitters. The Respondents indicated they were not ready to be parents. As a result of her conversation with the Respondents, Ms. Ballam was of the impression the baby was going to be handed over to the Applicants.
123After Isabelle’s birth, the Applicants attended at the hospital and were able to see Isabelle through the window with the assistance of Mr. Amyotte.
124On the following day, the Applicants met the Respondents at a Tim Hortons parking lot across the hospital and took Isabelle home with them when she was one-day old. Although the plan was initially to do the exchange at the Respondents’ home, meeting in Port Perry rather than in Lindsay, Ontario reduced the travel time for Isabelle in the vehicle back to Welland, Ontario.
125During her evidence, when Ms. Blair was asked why she gave her daughter to the Applicants, she indicated she felt she had no choice, noting the Applicants had been in touch with Ms. Flowerday and felt they were good to go. However, it was put to Ms. Blair during cross-examination that although there was no formalized plan at the time of Isabelle’s birth, she still went ahead and provided her child to the Applicants. In fact, the mother sent a Facebook message on the morning of December 29th to the Applicants stating they needed to formalize a plan.
126Mr. Amyotte testified he questioned whether they had made the right decision after the Applicants left with Isabelle. When he was asked why they did not simply take their daughter home, he said he felt he had no choice, as they would not be able to provide for her; they had no food or supplies. He further stated during cross-examination that he wanted to continue with the plan/process in an effort to support Ms. Blair and what she wanted.
127Ms. Blair testified that it was hard for her to hand over Isabelle to the Applicants and she did not tell them how she was feeling, as she did not wish to ruin the moment for them. Afterwards she felt emotionally empty. Mr. Amyotte testified that upon their return home, he did his best to support Ms. Blair, who was grieving the loss of their child.
128During cross-examination, Ms. Blair conceded she and Mr. Amyotte were not ready to care for a baby, including at the time of birth, also noting they had no savings. Ms. Blair stated it was not an option for her and Mr. Amyotte to take Isabelle home. Ms. Blair confirmed she was aware the Applicants would provide a loving and stable home for her daughter, and it was everyone’s intention for the Applicants to be Isabelle’s forever parents.
129On January 12, 2021, Ms. Blair had a session with her therapist, Ms. Comrie. Ms. Blair indicated she was frustrated with the dads, as the paperwork for the adoption was not taken care of and lawyers were hesitant to take them on.
130On this same date, Ms. Blair communicated with Ms. Flowerday and, according to Ms. Flowerday’s evidence and notes, Ms. Blair confirmed she had acted as an egg donor while Mr. Amyotte had acted as a sperm donor for the Applicants. She and Mr. Amyotte gave custody of Isabelle to the Applicants after her birth. Ms. Blair told Ms. Flowerday she had gone to see her doctor regarding her desire to be a surrogate. Ms. Blair confirmed that all four of the parties wanted the same outcome, for the dads to be parents to Isabelle. According to Ms. Flowerday, she explained to the mother she could attempt to do a Declaration of Parentage and of Non-Parentage but there was no guarantee it would be successful.
131In contrast, Ms. Blair testified she had no recollection that either Ms. Flowerday or the Applicants advised her they would be testing the law and there was no guarantee the Application for Parentage and Non-Parentage would be accepted by the Ministry. However, as I previously noted, Mr. Jacobs had forwarded an email from Ms. Flowerday in late December, 2020, stating there was no guarantee the Ministry would consent to the requested Application.
132According to Ms. Flowerday’s evidence, she recalled speaking to Ms. Blair about having her and Mr. Amyotte obtain Independent Legal Advice, however, Ms. Blair stated it was easier if she was the only lawyer involved. Ms. Flowerday believed that she could represent all four parties, as they all wished to achieve a mutual goal and their interests were all aligned.
133On January 25, 2021, during Ms. Blair’s session with Ms. Comrie, she advised Ms. Comrie she was struggling with her decision, despite feeling she had made the right one. Ms. Comrie wrote:
“our session focused on her recognizing that she still believed very much that she made the right choice for Isabelle, her and Jake. Ms. Blair was concerned Isabelle would not remember her and she questioned whether she might not see her daughter until her first birthday. Ms. Blair was worried Mr. Amyotte would resent her as Mr. Amyotte did not feel this was the right decision”.
134In late January 2021, Ms. Flowerday prepared an Application noting all four parties as the Applicants and the Deputy Registrar General for the Province of Ontario as the Respondent. She stated in the Application the parties had entered into a verbal Surrogacy Agreement in March, 2020, and the child had been in the care of the Applicants for the preceding month. The parties were seeking a Declaration of Parentage that Mr. Jacobs and Mr. Coulombe were the fathers of the child and were to be recognized in law to be the only parents of the child and a Declaration of Non-Parentage declaring Ms. Blair was not the mother or a parent and Mr. Amyotte was not the father or a parent to the child.
135The Application indicated Ms. Blair and Mr. Amyotte had no children and neither wished to parent. Ms. Blair and Mr. Amyotte had acted in an altruistic traditional surrogate and sperm donor arrangement, having complied with the Assisted Human Reproduction Act to the extent of an ova and sperm donation for surrogacy. It had been agreed by all parties that any child born would be Mr. Jacobs and Mr. Coulombe’s, and they were the intended parents.
136According to Ms. Flowerday’s evidence she did not believe the Application would succeed but she felt compelled to take on the parties’ case as they appeared highly motivated to achieve a legal result of a situation which was already in place. She believed she could test the law and s. 13 of the Children’s Law Reform Act and decided to go ahead.
137Despite the fact that Mr. Jacobs and Mr. Coulombe paid for Ms. Flowerday’s retainer and signed the Retainer Agreement, he and Mr. Coulombe believed Ms. Flowerday was acting for all of them. In kind, both Ms. Blair and Mr. Amyotte testified they felt Ms. Flowerday was acting for them as well and they never considered getting their own lawyer. Ms. Blair testified she was never told she had to get her own lawyer, which was contrary to the evidence provided by Ms. Flowerday.
138In support of the Application for Parentage, Ms. Flowerday had to prepare Affidavits for each of the parties. To this end, she sent out questionnaires to the parties to obtain the necessary information to be contained in the Affidavits.
139In the late morning of February 2, 2021, Ms. Flowerday forwarded an email to Mr. Jacobs and Ms. Blair enclosing a copy of the Application and the Affidavits for their review and corrections. She noted they were to carefully read all of the documents and provide her with feedback so she could update the documents and resend with any corrections. Later that day, all parties met with Ms. Flowerday by Zoom video to execute their Affidavits. According to Ms. Flowerday, Ms. Blair had sought small revisions, which were made.
140Ms. Blair indicated she received a copy of her Affidavit, which she was to execute on the same date as her appointment with Ms. Flowerday. Ms. Blair testified she never read the Affidavit prior to signing it, as she was not really functioning. She believed the document she was signing would permit the Applicants to take Isabelle to medical appointments. According to Ms. Blair, Ms. Flowerday never explained any of the documents and Ms. Blair asked no questions of Ms. Flowerday due to her emotional state. Ms. Blair testified she was not aware she had a choice not to sign the Affidavit, which contained some inaccuracies, such as the fact Mr. Amyotte had no other children. I did note, however, that Mr. Amyotte stated he had no other children on his portion of the questionnaire which was submitted to Ms. Flowerday.
141During her Examination for Discovery Ms. Blair was asked when she signed the Affidavit, did she believe the information to be true? Ms. Blair responded she knew there was some bending of the truth in it, suggesting she would have been aware of the contents of the Affidavit. During Ms. Blair’s cross-examination, she conceded she may have gone over some of her Affidavit but not all of it.
142During his evidence, Mr. Amyotte testified he believed Ms. Flowerday was retained to make the Applicants Isabelle’s parents. Yet, he testified he never read the Affidavit supplied to him by Ms. Flowerday which he executed. Mr. Amyotte indicated he felt the document was required for the Applicants to obtain Isabelle’s OHIP/Health Card. He indicated he was not aware Ms. Flowerday was seeking to amend parentage of Isabelle and confirmed he asked no questions of Ms. Flowerday.
143Mr. Amyotte testified Ms. Flowerday never went through, read or summarized any of the documents put before him, including his Affidavit. This was contrary to his Examination for Discovery on August 12, 2021, wherein Mr. Amyotte stated he did not read his Affidavit, as during the Zoom meeting with Ms. Flowerday she went through it and gave a breakdown. When this inconsistency was put to Mr. Amyotte, he indicated he no longer recalled the events.
144When Mr. Amyotte was asked why he signed his Affidavit if he was not aware of the contents, he indicated he did not know he had a choice not to sign. He trusted the process and his friends.
145During her evidence, Ms. Flowerday’s recollection was that she spent approximately 40 minutes with the parties to review the Application and their Affidavits. She asked each of them whether they had reviewed their Affidavit and whether they believed it to be truthful, complete and accurate, to which they replied in the affirmative. Although she did not read the Affidavits verbatim with the parties, she stated she summarized the contents prior to its execution.
146Ms. Flowerday testified she never got the impression the parties felt compelled to sign their Affidavit. The Respondents never asked her if they could simply keep their baby, nor did they raise any concerns.
147Ms. Flowerday stated she took all the information she received from the parties at face value, including the fact they believed their arrangement to be a traditional surrogacy. She believed Ms. Blair could cope with the psychological implications of providing her child to the Applicants, as the parties had planned for the Applicants to parent the child for a long time, had been previously looking into fertility clinics and the mother had advised she had spoken to her doctor. Ms. Flowerday agreed the mother may not have received specific surrogacy counselling.
148Ms. Flowerday testified she felt Ms. Blair understood her Affidavit and the legal implications and had no concerns in this regard, otherwise she would have halted the process. It was Ms. Flowerday’s belief Ms. Blair had done research and had thoroughly considered being a surrogate. Ms. Flowerday’s only contact with Mr. Amyotte was at the Zoom meeting, however, Ms. Blair assured her during their conversations that Mr. Amyotte understood what was transpiring.
149Text message exchanges between Ms. Blair and Mr. Jacobs on March 10, 2021, stated the following, which appears to suggest Ms. Blair was aware they were attempting to remove her and Mr. Amyotte as legal parents:
Ms. Blair: “I’m like it’s not like Jake is going to sign anything for her anyways. Kevin asked if he had to say he was the father, but I was like no your good bro.”
Mr. Jacobs: “Wonder if she could claim it was anonymous sperm donor then with that added information.”
Ms. Blair: “Its cool. It’s not a typical situation since we don’t care if we are still legally attached. We know we won’t fuck the other over.”
EVENTS AFTER BIRTH
150Mr. Jacobs was able to secure a two-month parental leave from work to care for Isabelle, while Mr. Coulombe was able to work part-time for a period of six weeks.
151The evidence demonstrated the Applicants made all necessary medical appointments for Isabelle, including securing a family physician for her, and ensured she received all required vaccines. She did develop some gastrointestinal issues. However, the Applicants sought out assistance regarding this concern and the issue resolved. The Applicants confirmed Isabelle is a healthy and content child who has met all of her developmental milestones.
152The Applicants have been financially responsible for all of Isabelle’s needs. They have not received any financial contribution from the Respondents and have not sought same either. They did apply for the monthly Canada Child Tax Benefit, which they just recently began to receive.
153The Applicants remained in contact with the Respondents following Isabelle’s birth and kept them apprised of how she was doing, sending numerous pictures and updates. According to Mr. Coulombe, he asked Ms. Blair if it was too hard for her to receive pictures of Isabelle and she indicated it was hard on her, but she enjoyed receiving them.
154Ms. Blair testified she never contacted the Applicants once she returned home to ask for Isabelle’s return, stating she felt it was not an option. She did attempt to suggest to the Applicants that if they needed time for themselves, she was happy to drive to Welland and provide care, but they never accepted her offers. Despite Ms. Blair’s assertions during her evidence that the Applicants were not permitting her the promised parenting-time with Isabelle, she conceded she never specifically made requests of them, save and except for the scheduled visit that went ahead. It was my impression Ms. Blair assumed they would have reached out to her to come see Isabelle. During his evidence, Mr. Amyotte stated he never asked the Applicants to see Isabelle.
155Mr. Jacobs testified he and Mr. Coulombe had always told the Respondents they could come visit Isabelle whenever they wished. They arranged for a first visit in February 2021, but it was cancelled by the Respondents because of the Covid-19 restrictions. The visit was re-scheduled to March 17, 2021. The Respondents came to the Applicants’ home with Ms. Blair’s mother and step-father and they visited with Isabelle for about four hours. Thereafter, the Respondents left to go visit Ms. Blair’s cousin who lives in the area, as they also had a newborn. Although they believed the Respondents were returning to their home after visiting Ms. Blair’s nephew, the Respondents returned to their home in Lindsay, Ontario. The Applicants testified they knew Isabelle would be in bed so there was no point in returning.
156Prior to the visit on March 17, 2021, Ms. Blair had a session with Ms. Comrie and indicated how much she was looking forward to seeing Isabelle. Ms. Comrie stated the following from the session:
“Had moments where she has had to sign paperwork for Izzy or has had to do something that reminds her she is really severing her legal rights as Izzy’s mom and that’s been harder than she thought but she still feels overall she made the right decision for her and Izzy.”
157Both Applicants testified Ms. Blair had always referred to herself as wanting to be like an “aunt” to her child and it was everyone’s intention that she and Mr. Amyotte would join the Applicants for vacations and family events and be a part of the child’s life. A Facebook message sent to the Applicants on September 9, 2020 by Ms. Blair stated: “I’m going into this being an aunt”.
158Mr. Coulombe testified Mr. Amyotte never referred to his role towards the child and appeared more disinterested in his role/contact with the child as compared to Ms. Blair.
159On April 2, 2022, the Applicants received a call from Ms. Flowerday and a copy of a letter authored by legal counsel Mr. James Stebbing dated March 19, 2021 on behalf of the Deputy Registrar General. Mr. Jacobs believed they sent a text message to the Applicants to state the Government had denied their request and thought they may have sent images of the letter but could not recall.
160The Deputy Registrar General wrote to advise they would not consent to the Application for a Declaration of Parentage and Declaration of Non-Parentage because there was no written agreement before conception and the child was not conceived through assisted reproduction. They went on to state the following:
“In the present case, the birth parent does not meet the CLRA definition of a surrogate, as the affidavits suggest that the child was conceived through sexual intercourse, not through assisted reproduction. Further, for the intended parents of a child born to a surrogate to become the parents of the child and for the surrogate to cease being the parent of the child, the CLRA requires that there have been written preconception surrogacy agreement between the surrogate and intended parents and that all the parties to the agreement must have received independent legal advice before entering into the agreement. Neither of these requirements have been satisfied in this case.
It appears that the parties are seeking a declaration under s 13 because their circumstances do not fall within the surrogacy provisions of the CLRA. However, s. 13 is not intended to override the surrogacy provisions in the CLRA, nor is it intended to override Ontario’s adoption legislation.
A number of important safeguards are built into the adoption process, in order to promote the best interest, protection, and well-being of Ontario children who are being adopted, given the significance of this change in legal status to a child’s life. Such safeguards include safety and suitability assessments of prospective adoptive parents, the requirement that birth parents receive counselling and independent legal advice for their decision, and supervision of the adoption placement over a minimum of a six-month period to ensure that the proposed adoption is in the child’s best interests.”
161During her evidence, Ms. Flowerday explained that usually parties wish to seek the consent or non-objection of the Deputy Registrar General on these types of Applications, although it is not absolutely necessary. However, from her experience, Judges who deal with these Applications look for the consent letter from the Government. The outcome in this case was a decline of a consent, however, it did not necessarily mean the Application for Declaration of Parentage and Non-Parentage by the Superior Court of Justice could not still proceed or be granted.
162According to Ms. Blair, she recalled being advised by Mr. Coulombe on April 2, 2022 the Deputy Registrar General had denied their request. She later had a telephone conversation with Ms. Flowerday to discuss the content of the letter which she received on April 7, 2021. She recalled Ms. Flowerday suggesting they should perhaps look into adoption and that she better get her home ready, as Isabelle would be coming back into her care.
163Ms. Blair testified she was elated about the fact that she and Mr. Amyotte were still Isabelle’s legal parents, and she was not willing to proceed with an adoption. Ms. Blair stated she could not bear the thought of having Isabelle returned to her care for six months for the adoption process to take place and then have to turn over Isabelle to the Applicants a second time. Ms. Blair stated that once she spoke to Ms. Flowerday she and Mr. Amyotte proceeded to purchase all necessary supplies and set up a room for Isabelle, believing she would be coming back to their care.
164According to Ms. Flowerday’s evidence, she spoke with Ms. Blair on April 6-7, 2021. She recalled advising Ms. Blair they could still bring the Application but it would be difficult to succeed. Ms. Flowerday wanted all of them to decide the next steps together and get back to her with instructions. Ms. Flowerday recalled feeling tension by Ms. Blair during the call. Ms. Flowerday had no recollection that Ms. Blair spoke about reconsidering her position at that time. Ms. Flowerday was never asked during her evidence whether she recalled stating or suggesting Ms. Blair would have Isabelle returned to her care.
165Ms. Flowerday last spoke to Ms. Blair on April 14, 2022. Ms. Blair advised her at that point she was reconsidering Isabelle’s placement. Ms. Blair stated Mr. Amyotte supported whatever she wished to do, and she wanted Isabelle back after the May long weekend in order to get organized for her return.
166Ms. Blair initially testified they were going to seek the return of Isabelle after the May long weekend in order to get organized, however, during her cross-examination she indicated it was to permit a transitional care plan between them and the Applicants, although this was, in fact, never sought by them.
167As a result of the call with Ms. Blair, Ms. Flowerday observed the parties’ interests were no longer aligned and she was conflicted. Ms. Flowerday testified she never told the Applicants to return Isabelle back to the care of the Respondents.
168On April 14, 2021 the Respondents advised the Applicants they were coming to get Isabelle. According to Mr. Jacobs and Mr. Coulombe, they were devastated by this request, feeling the Respondents were attempting to tear their family apart.
169A text message was sent from Mr. Amyotte stating:
“This is Jake. We don’t want to have to escalate the situation further. We have every right to come get her right this moment – we are giving you the courtesy of the pick up time – April 18 at 12 p.m., 2:00 p.m. or 4:00 p.m. Please respond. We don’t want to have to get the police involved.”
170The Applicants advised the Respondents to wait until at least until April 20, 2021, to which the Respondents agreed, as they knew this turn of events would be hard on the Applicants.
171On April 16, 2021, Ms. Blair met with Brittney Taylor, who was a student working for Ms. Comrie that day. According to Ms. Taylor’s notes, Ms. Blair reported that:
“her child was four months of age and she had only seen her once. The dads were wanting to lie on government documents trying to find another way to adopt her child. She told the dads on Wednesday she was not willing to go the adoption route. They would have to be monitored for six months and her daughter cannot be in their care. The government said she has to go into foster care. It is hard for a woman to give up her daughter the first time. She had thoughts of self-harm come back. She tried to see the baby, but the dads live a social life and are avoiding her. They previously stated they would have her over all of the time. She feels taken advantage of. When the lawyer said this didn’t work out and you should get your house ready for a baby, her heart soared. This morning she talked to a lawyer. They plan to get her daughter on Sunday. They registered the baby and feel she has been technically kidnapped. The dads have to prove they are unfit.”
172The Applicants sought out legal counsel as they opposed the return of Isabelle to the Respondents, noting it was not in her best interests to suddenly be pulled away from her home and be given to two people with whom she had no attachment and who did not know her routine and cues. The Applicants believed the Respondents were not equipped to care for Isabelle, as Ms. Blair had never been a parent and Mr. Amyotte had no contact with his son from a prior relationship and yet they suddenly wished to parent Isabelle. The Applicants testified they were not aware whether the Respondents had the supplies or supports required to care for Isabelle and felt the Respondents’ rash decision was not in keeping with Isabelle’s best interests.
173The Applicants signed their court Application on April 20, 2021. Once this process was set in motion, the communication and relationship between the four parties ended. Ms. Blair testified she and Mr. Amyotte felt betrayed by the Applicants.
174According to Ms. Ballam, on this same date, Ms. Blair contacted her to obtain proof regarding the birth as Ms. Blair now wished to go ahead and register Isabelle’s birth. Ms. Blair informed Ms. Ballam things had not gone well, as the guys had told her lies and had misled her. Ms. Blair advised Ms. Ballam she had retained a lawyer and may require police to have Isabelle forcibly removed.
EVENTS AFTER LITIGATION
175Once litigation was initiated, both parties brought an emergency Notice of Motion. In the meantime, through the assistance of legal counsel, arrangements were made for the Respondents to have a visit with Isabelle on May 2, 2021 at a park in Welland, Ontario.
176The motions were initially set to be heard on May 4, 2021. Pazaratz J. stated in his court endorsement this was a very complex and time-sensitive matter, but that it also required a Case Conference, which was set for May 11, 2021. In the meantime, on consent of the parties and pending the return date, Isabelle was to remain in the care of the Applicants and the Respondents were to have specified daytime parenting time with her in Welland, Ontario on the weekend of May 8, 2021. Shortly thereafter, the Respondents began to consistently have daytime visits three times per week.
177The Case Conference was held and the matter proceeded to a Settlement Conference on June 2, 2021 with Kril, J. Leave for questioning was granted such that the matter could proceed to trial in November, 2021. The parties agreed on consent to increase the Respondents parenting-time by approximately one hour per week.
178On May 12, 2021, Ms. Blair met with Ms. Comrie and stated her lawyer had hoped she had said during their sessions she wanted to be a mom. Ms. Comrie explained to her that was not the way she had put things to her. Rather, her statements were about feeling confident she had made the right decision for Isabelle, Mr. Amyotte and herself. Ms. Blair indicated to Ms. Comrie she now realizes she can be easily manipulated by others and made a mistake giving up Isabelle and had changed her mind. Ms. Blair stated she felt terrible Isabelle was stuck in the middle and felt the dads had lied to her. Ms. Blair then told Ms. Comrie that she did not understand the court process very much at all or the process of adoption or surrogacy. When Ms. Comrie asked her why she did not ask questions, Ms. Blair indicated she had not done a lot of research and assumed it was straight forward if all parties agreed.
179On June 29, 2021, Ramsay J. heard the motions brought by each of the Applicants and Respondents seeking a parenting order in their favour. Ramsay J. noted in his written decision dated June 30, 2021 the Applicants never undertook the process for adoption set out in the Child, Youth and Family Services Act, 2017 and cannot seek adoption. In fact, Ramsay J. felt everyone did everything wrong. Regardless, he concluded it was no reason to punish the child and felt the relevant inquiry was child-centered, not rights-based. As such, Ramsay J. stated at paragraph 24 of his decision that the best interest of the child was the sole criterion in determining whether to make a parenting order in accordance with s. 24(1) of the Children’s Law Reform Act, noting that in interim orders, stability is generally given considerable weight.
180Ramsay J. concluded the following at paragraphs 25-26 of his decision:
“The child is six months old. She sits up and laughs and smiles. She knows the Applicants as her parents and Brock’s mother as her dear old gran. She is not a puppy to be re-homed on the breakdown of an agreement to which she was not a party. This status quo was not set up by the Applicants. It was set up by the Respondents when they voluntarily gave the child away. She has bonded to the Applicants as the Respondents intended that she would. It would not be in the child’s best interest to take her away from her psychological parents on the chance that she will be taken away from them a few months from now.
At the same time, there is a strong prospect that the Respondents will remain her parents, whether she lives with them or not, and in her life in any event. The interim visiting that has gone on so far has let the child get comfortable with them, which is in her best interest. They have been seeing the child for three hours each Wednesday evenings, Saturday afternoons and Sunday evenings. Given the distance between the residences of the parties, (Lindsay versus Welland) I think that the Wednesday evening visit is impractical. There is little benefit from a short visit with tired parents. At this point, I think one somewhat longer weekend visit would be appropriate.”
181Ramsay, J. granted a temporary order permitting the Applicants to have decision-making responsibility over Isabelle and having her reside with them. The Respondents were granted parenting-time every Saturday from 1:00 p.m. to 6:00 p.m. Thereafter, the Respondents sought to change their Saturday visit to Sundays to accommodate Ms. Blair’s work schedule and the Applicants consented to the requested change.
182The Respondents testified they were upset the Applicants have not permitted them extra parenting-time save and except for what has been court ordered. It was, however, acknowledged the Applicants did permit a few extra hours of parenting-time for Thanksgiving and on December 24 and 26, 2021. Once the Respondents relocated from Lindsay, Ontario to Welland, Ontario in September, 2021, the Applicants also agreed to reinstate the Wednesday evening visit, which Ramsay, J. had terminated in June, 2021. The evidence also confirmed that as of January, 2022, the Applicants had increased the Respondents’ total parenting time by a further hour per week. Understandably, in the eyes of the Respondents, this was still not enough time with their daughter. Currently, the Respondents enjoy parenting-time on Wednesdays from 4:00 p.m. to 8:00 p.m. and Sundays 10:00 a.m. to 5:00 p.m.
183Initially, the parties were communicating by text message, however, Mr. Coulombe created a daily logbook which detailed Isabelle’s daily routine and provided pertinent information regarding medical appointments or updates regarding her development, which was provided to the Respondents at exchanges. The Respondents, in turn, also used the logbook to outline Isabelle’s routine with them during their parenting time. I felt the exchange of information was detailed and extensive.
184Despite the great efforts in exchanging information, the Respondents felt the Applicants were not relaying enough information and the Applicants were frustrated having to answer the same questions more than once, leading to discord.
185Over time, it was felt by the Applicants the logbook was becoming onerous, as the daily information was repetitive. As a result, in February 2022, they created a calendar of Isabelle’s daily routine which was inserted into the logbook such that they would now only note items they felt were pertinent, such as doctors’ appointments and updates for the Respondents.
186The matter was called for trial on November 24, 2021 before Maddalena J. At the commencement of the trial Maddalena J. was notified the Respondents wished to rely on an expert report from Mr. Michael Blugerman dated November 14, 2021, which had not been served on the Applicants in accordance with the Family Law Rules RSO 1990 c. F3/Evidence Act RSO 1990 c.E.23. In the event Mr. Blugerman’s report was being admitted into evidence, the Applicants wished to have time to now obtain their own expert report. As a result of the Respondents request to admit Mr. Blugerman’s report, Maddalena J. adjourned the trial to the March 28, 2022 trial sittings.
187Thereafter, the Respondents brought a Notice of Motion to review their parenting-time seeking to have overnights with their daughter. On February 4, 2022, Gambacorta J. dismissed the motion, noting this issue could be dealt with at trial, which was set to be heard within 60 days.
188During the trial, the Applicants raised no concerns about the parenting skills of the Respondents. The Applicants did each observe that Isabelle reacted more positively towards her mother at exchanges as compared to Mr. Amyotte.
189The Applicants stated the exchanges between the parties had gone relatively well, although there were some occasions when Mr. Amyotte attended on his own and made some inappropriate and snide comments in front of Isabelle. There is little to no communication between the parties at exchanges.
190The Applicants have always been open to the Respondents having contact with Isabelle. Despite the litigation, the Applicants continue to want the Respondents to have ongoing contact with Isabelle, as long as the parenting time is age-appropriate. They are no longer seeking a Declaration for Non-Parentage vis-à-vis the Respondents and are aware that Isabelle will always know the Respondents to be her biological parents.
191The Applicants admit they have not agreed to the Respondents’ request to have overnight parenting-time. The Applicants feel overnight visitation should commence in July 2022, when Isabelle is 18 months of age, which is when they feel she can emotionally/developmentally handle same.
192The Applicants testified they were upset when they became aware of Mr. Amyotte’s sister’s GO FUND ME page which was linked to both of the Respondents’ social media accounts and approved by them. A portion of the message stated the following:
Regain Custody of daughter
She is in the possession of legal strangers who will not return her and have filed a motion for emergency custody to keep her in their care until trial in November, 2021.
Kobryn learned she was pregnant early in the relationship with Jake. They decided a couple Kobryn had been friends with for years would care for their child with the intent Kobryn and Jake would be active participants in their daughter’s life.
But after this couple spent months trying to get Kobryn to follow through with lying about her daughter’s parentage – although that was entertained briefly but quickly discarded – and getting extremely angry when they found out she told her doctor Jake was the father, Kobryn and Jake wanted to go through the proper legal channels.
Kobryn was so sick, she could not hold down a job and Jake quit his job during the pregnancy. Kobryn used up all of her life savings to supplement their income and both were jobless by birth.
Kobryn and Jake thought they needed to proceed and gave the baby away.
Kobryn and Jake went 2 ½ months without seeing their baby and the guys used Covid as an excuse.
On March 19, 2021 the Deputy Registrar General of Ontario wrote that what Jake and Kobryn did was not legal or a surrogacy and the child was to be returned to them.
They learned the guys had done nothing up until weeks before the birth – they tried to abuse a loophole, cheat the system by not going through the proper process.
They were not aware of the criminal charges by one of the men.
These men has stolen the child from the parents.
The men are actively cutting the parents out of her life and cut some of their court endorsed visits short.
Kobryn and Jake have always wanted to be her parents.
193The Applicants believed the post contained a lot of misinformation and portrayed them as “baby thieves”. Both Applicants worried about the fact Isabelle could see this information on the internet when she was older, as they felt there was some identifying information contained in the post.
194The Respondents felt the GO FUND ME page was an accurate representation of their situation and they have removed the page. Frankly, I believe the social media post was not only inaccurate, but clearly demonstrated the Respondents take no blame for their decisions and actions.
195The Respondents testified they felt the Applicants had taken good care of their daughter and had no concerns with their parenting skills, although Ms. Blair indicated she was concerned with Mr. Coulombe’s anger issues and the harm that could come to Isabelle as a result. Ms. Blair felt she had been lied to, noting Mr. Coulombe had never told her the extent of his criminal record. She believed his most recent criminal charge was the Assault with a Weapon involving the clipboard at Service Ontario. Mr. Coulombe had told her the charge was pending and would be exonerated. Despite the fact evidence was put to Ms. Blair that Mr. Coulombe had advised her of his criminal record, she indicated she believed some of what he had said was a joke.
196Despite the above, and contrary to the mother’s evidence, there was a written exchange between Ms. Blair and Mr. Coulombe on July 11, 2020, wherein Mr. Coulombe provided details of his criminal record and some facts related to the offences.
197Ms. Blair conceded during cross-examination she had not been concerned at the time of Isabelle’s birth with whether Mr. Coulombe had a criminal record, as she had known the Applicants for a number of years, they were in a committed relationship and she knew they would be good parents.
198During Mr. Amyotte’s Examination for Discovery he recalled being told Mr. Coulombe had a criminal record and somewhat recalled an offence of dangerous driving, but believed it all to be a joke. He could not recall whether he was aware of Mr. Coulombe’s mental health issues. When he was asked if he had any concerns about giving Isabelle to either Mr. Jacobs and Mr. Coulombe and the care they would provide to her he responded, “no, together they make a good couple”.
199When Mr. Amyotte was asked during his Examination for Discovery whether he had second thoughts in giving Isabelle away during the pregnancy, he stated he went along with the fact he and Ms. Blair would be in Isabelle’s life and felt the Applicants were good people. So as long as they got to see Isabelle, he was okay with it. He no longer agreed with the parenting arrangement because he felt the Applicants did not keep their promise in permitting a lot of contact with Isabelle, had not provided the agreed-upon financial compensation and he did not like how the Applicants had handled the situation.
200When Mr. Amyotte was further asked whether he was worried about the psychological harm that could come to Isabelle by having her removed from the Applicants, he indicated he felt no bonding would have occurred between them during her first three months of life as per the Association of Family and Conciliation Courts (“AFCC”) Guidelines. He indicated he does not remember anything from when he was three months of age, and when his parents split when he was six months of age, his life was not impacted.
201Both the Respondents testified they were ready to have Isabelle in their full-time care. They feel Isabelle is content when she is in their care. She shows no signs of distress, and she eats and sleeps well for them. Both Respondents testified they want more parenting-time, as they felt they were missing out on important moments with their daughter and have not been able to introduce her to some extended family due to the limited parenting-time they have received.
Applicants’ Plan of Care
202The Applicants were able to outline Isabelle’s temperament, routine, activities, medical care and familial/friend supports regarding their parenting experience for the past 15 months.
203The Applicants testified Isabelle seeks them out when she requires comfort or when she requires any of her needs to be met. She calls them both “dada”.
204The Applicants indicated they wished to enroll Isabelle in daycare for the purposes of socialization and this was offered through Mr. Jacobs’ employer in Niagara Falls, Ontario. The Applicants have also already discussed having Isabelle attend a French Immersion program at a nearby school once she is of school age, as Mr. Coulombe has a Francophone background and felt Isabelle should be fluent in both National languages.
205The Applicants both indicated they wished to pursue a surrogacy at some point as they would love to expand their family.
206Mr. Coulombe testified he and Mr. Jacobs make a good parenting team as they trust each other’s parenting decisions.
Respondents’ Plan of Care
207Ms. Blair advised that she had secured full-time employment, however, if Isabelle was placed in her care she was hopeful her employer may permit a parental leave or to work part-time. She indicated she could have her sister-in-law care for Isabelle if caregiving was required. She surmised she could also ask the Applicants.
208In contrast, Mr. Amyotte was not as clear as to the parties’ plan. He stated that perhaps Ms. Blair could work part-time. They would need to figure this out. He indicated they would probably require a babysitter, but made no mention of his sister-in-law.
209Ms. Blair suggested that she wanted the Applicants to remain in Isabelle’s life but felt they should have the role of a favourite uncle. Ms. Blair testified she would consult the Applicants regarding decisions affecting Isabelle. The Respondents have all necessary supplies for Isabelle and have extensive family support.
210Ms. Blair noted that she was supportive of Isabelle attending French Immersion, although she, herself had a learning disability and as such this may need to be considered for Isabelle.
211Ms. Blair indicated she and Mr. Amyotte want more children. They unfortunately lost a baby when she became pregnant in October, 2021. They continue to try and conceive another child.
Expert Evidence
212Each party retained an expert on the issues of infant and child attachment and development . Evidence was provided by Dr. Karine Poitras on behalf of the Applicants. Dr. Poitras has a PhD in Psychology. She is a Psychologist, and teaches in the Psychology Department at the Université de Québec and l’Université de Laval.
213Evidence was also provided by Mr. Michael Blugerman on behalf of the Respondents. Mr. Blugerman is the Executive Director of the Children’s Resource Centre and Consultation Centre of Ontario. He is also the Chairman of the Ontario Association of Private Adoption Professionals and is Dyadic Developmental Psychotherapy (“DDP”) certified as an attachment-focused therapist. Mr. Blugerman also provided further extensive evidence on the issue of adoption.
214Both Dr. Poitras and Mr. Blugerman spoke about the possible risk of disruption from a primary attachment at Isabelle’s age and stage of development. The forming of secure attachment and the maintenance of feeling safe while being autonomous is quite complex and dependent on a number of variables.
215There is no consensus that a disruption of the attachment to one’s primary parent/caregiver (psychological parent) will automatically lead to future development issues. As was noted by Dr. Poitras, the age of six months to 36 months is a rich development period for a child. Continuity of the primary parent/caregiver is extremely important at this stage.
216On the other hand, a child could still successfully transition to a new caregiver. It is highly dependent on whether the child has already developed a secure attachment to his or her primary caregiver, whether the new proposed caregiver has been a constant in the life of the child and/or whether the new proposed caregiver has the skills to read and understand the cues and signals of the child, and is in tune with the child’s needs. A child could potentially have a secure attachment and make a new one. On the other hand, they could go from a secure attachment to an unsecure one. If this is the case, it could lead to a whole host of negative repercussions for the child as an adult.
217Both Dr. Poitras and Mr. Blugerman reviewed various studies and theories regarding secure/insecure attachment for young children. Neither had met the parties or the child. The specific facts of this case were never put to them in order to proffer a specific opinion. Rather, they outlined principles and best case/worse case scenarios if a change in parental figure/attachment occurred. As Dr. Poitras noted, it is important to know the family situation, the parental sensitivity, and the parental capacity of the parties to predict outcomes.
218Mr. Blugerman also spent some time testifying about adoption law in Ontario, its legislative framework and protocols as mandated by the Child, Youth and Family Services Act (“CYFSA”) and why these safeguards are required. It reiterated that the usual safeguards for adoption cases were not followed in this particular case.
LAW AND ANALYSIS
What parenting order is in Isabelle’s best interests?
219Part III of the Children’s Law Reform Act R.S.O 1990, c.C12 (“CLRA”) deals with decision-making responsibility, parenting time, contact and guardianship. The relevant provisions are as follows:
Purposes, Part III
- The purposes of this Part are,
to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;
Equal Entitlement to Decision-Making Responsibility
20(1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.
Rights and Responsibilities
(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interest of the child.
Parenting-Time
(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.
Application for Parenting Order or Contact Order – Parenting Order, Application by Parent
21(1) A parent of a child may apply to a court for a parenting order respecting,
(a) decision-making responsibility with respect to the child; and
(b) parenting time with respect to the child.
(*Pursuant to section 18 which outlines definitions and interpretation of Part III, “parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time.)
Parenting Order, Application by Non-Parent
(2) Any person other than the parent of a child, including a grandparent, may apply to a court for a parenting order respecting decision-making responsibility with respect to the child.
Contact Order
(3) Any person other than the parent of a child, including a grandparent, may apply to a court for a contact order with respect to the child.
(*Pursuant to section 18 which outlines definitions and interpretation of Part III, “contact” means the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time.)
Best Interests of the Child
24(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.
Primary Consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage and development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the other would apply to co-operate on issue affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
Factors Relating to Family Violence
(4) In considering the impact of any family violence under clause 3(j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of he child; and
(h) any other relevant fact.
Past Conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.
Allocation of Parenting Time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
Parenting Orders and Contact Orders
28(1) The court to which an application is made under section 21,
(a) may by order grant,
i. Decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1)(a) or subsection 21(2).
ii. Parenting time with respect to a child to one or more parents of the child, in the case of any application under clause 21(1)(b), or
iii. Contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21(3).
(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be with respect to a child; and
(c) may make any additional order the court considers necessary and proper in the circumstances including an order.
220The CLRA used to contain a provision under s. 24(2) that referred to “the relationship by blood or through an adoption order between the child and each person who is a party to the application” as a factor for determining what is in the best interests of a child. Since the 2020 amendments, this is no longer a listed factor under s. 24.
221Eldon v. Grant, 2021 ONSC 3799, is a recent case in which two men, the Applicant and the Respondent, both alleged they were the biological father of the child in question. Charney J. explained the legal principles for determining parenting orders between biological and non-biological parties, explaining that biological connection is only one factor to be considered:
[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 the child’s biological father, it may well be that the child will benefit from establishing and maintaining a relationship with the applicant and his family. This need not be at the expense of the child’s continued relationship with the respondent and the respondent’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.
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.
222I concur there is no presumption in favour of the biological parents or genetics when determining a parenting order for a child. The governing principle as per subsection 24(1) is best interests, having regard to the considerations outlined in 24(2) and the factors outlined in 24(3) of the CLRA. The best interests standard is a child-centered approach.
223I agree with the comments made by Keast, J. in Pheasant v. Idowu, 2008 ONCJ 420 when he aptly stated at Paragraph 31:
There is no hierarchy of rights in considering the best interests of children under the Act. To place emphasis on parental rights may diminish the importance of the attachment process in the healthy emotional development of children. If there is a right, it is the right of the child to maximize his or her attachment and emotional development and minimize attachment uncertainties, regardless of blood relationship.
Credibility
224In assessing credibility, I prefer the evidence of the Applicants as compared to the Respondents.
225I believed the Applicants to be clear, consistent and unwavering in their evidence. Much of their evidence was supported by the documentary evidence. By contrast, I felt Ms. Blair, in particular, was not consistent in her evidence. On cross-examination she retracted, changed, or minimized her evidence. Some of her answers during her Examination for Discovery and trial evidence were incongruent. I was often left with the impression Ms. Blair was attempting to recount her version of the facts, which were not always supported by the written evidence, in order to fit or advance her narrative. I strongly felt Ms. Blair and Mr. Amyotte were fully aware they were giving their daughter away to the Applicants for the purpose of having them raise her. There was no coercion or influence. Either the mother or Mr. Amyotte could have decided on January 7, 2021 not to hand off their child to the Applicants. As of mid-March, 2021, the mother continued to confirm she felt she had made the right decision.
226Mr. Amyotte appeared to be more concise during his evidence, although he would, on occasion, not be consistent. One example was his evidence regarding his son, Abel. He initially testified that he was not visiting with his son, as Ms. Smith had cut off ties. Only during cross-examination did it come to light that Ms. Smith was open to a parenting arrangement and had offered virtual visits or in-person virtual visits, to which he declined.
227The evidence of Ms. Flowerday was contradictory to the evidence of Ms. Blair and Mr. Amyotte. I believe Ms. Flowerday’s evidence, as she was consistent during her evidence, which was also supported by her documentary notes as it related to the review and execution of the Application/Affidavits. Although both Ms. Blair and Mr. Amyotte suggested they had never read their Affidavits and were not aware of the contents, the documentary evidence reflected otherwise. I believe they read the Affidavits and understood the premise of the Application, which was to discharge them from their legal role as parents to Isabelle and replace them with the Applicants. This had always been the parties’ intended purpose.
228Despite the above, I do believe there was confusion, misunderstanding or turning a blind eye to the details surrounding pre-conception intent, which led to inaccuracies in the Affidavits in a quest by all parties to formalize the intended parenting plan for Isabelle.
229During the pregnancy, all parties continued to refer to the mother acting as a surrogate, despite the fact she had never been inseminated. Isabelle was not conceived through assisted reproduction, but rather by sexual intercourse. The parties also continued to believe there was a possibility for a “private adoption”. They never sought out proper legal advice on these subjects. Rather, they did internet research and received bits of information from various legal sources. They interchanged the words “custody”, “adoption” and “surrogacy” on a regular basis; especially Ms. Blair. Although they may not have been aware of the legal implications of each process, it mattered not. The intention always remained the same; the Applicants were to become the intended parents to Isabelle.
230I believe the Applicants did feel the Respondents had told them if they conceived a child, they could still be the parents to that child, and, in their mind, a pre-conception agreement had been entered into, as the Respondents had essentially donated their egg and sperm. However, I don’t believe the Respondents set out to purposefully conceive a child for that specific purpose. The fact that the Respondents agreed to have the Applicants care for their child does not, in my mind, automatically mean they donated their egg and sperm for surrogacy purposes.
231The information produced to Ms. Flowerday about the donation of egg and sperm was never challenged by the Respondents. I believe it was as a result of the Respondents not fulsomely understanding the meaning of this statement considering the end result was still the same – they were giving the child they did conceive to the Applicants.
Primary Residence
232After reviewing thousands of pages tendered into evidence, and weighing the oral testimonies of the parties and various witnesses, I have reached the conclusion that it is in Isabelle’s best interests to continue having her primary residence with the Applicants.
233I agree with counsel for the Respondents that we have a legislative framework in place for the placement of children through adoption and surrogacy for a reason. These legislative schemes offer a roadmap to all parties involved (biological parents, adopted parents, intended parents, surrogates) to ensure safeguards are met vis-à-vis all parties in the matter and ultimately for the safety, well-being and protection of children. Some of these safeguards include independent legal advice, specified counselling, home studies, pride training and the like.
234The court and public policy should not condone a party having a child and simply handing them off like a football to a third party. This is not the intent of our legislation. There has to be some oversight as to whether the third party is an appropriate caregiver for the child and whether all parties involved understand their rights and obligations and the long-term repercussions of their actions. The issue of permanency for the child is also important, as the birth parent can hand over their child to a third party only to turn around at a later date demanding the return of the child. These situations could have devastating ramifications on the parties and dangerous consequences for the physical and emotional well-being and development of the child.
235Despite the above, it is important to remember that each case has its own unique set of facts and should be decided on those specific facts. I am mindful that there was no adoption or surrogacy in this case. It is a situation where the biological parents gave their child to others, and after a four-month period demanded the return of their child.
236The mother never had specific counselling regarding the consequences of giving up her child. She and Mr. Amyotte never sought out their own legal counsel to review their options and the consequences of giving their child to the Applicants.
237However, despite all of the above, the Applicants are entitled, pursuant to the Children’s Law Reform Act, to bring a court application seeking the relief sought pursuant to the best interests of the child.
238In this case, the mother had a long-standing friendship with the Applicants. There had been some loose discussions over the years about the mother acting as a surrogate for the Applicants.
239After the mother separated from Mr. Alexander in the Fall of 2019, and prior to meeting Mr. Amyotte, it was she who reached out to the Applicants to advise them she felt the timing was right for her to act as their surrogate. In fact, the mother advised her counsellor it had always been her intention to act as a surrogate for someone in need.
240The Applicants were not strangers to her. The mother made it abundantly clear she knew of the Applicants’ longing desire to become parents and she knew they would be wonderful parents. The mother had years of ongoing contact with the Applicants as a frame of reference.
241In fact, it was the mother who arranged the meeting at East Side Mario’s, as she wanted her new boyfriend to meet her friends for whom she was going to be a surrogate. I believe the meeting solidified the plan for surrogacy with Mr. Jacobs providing his sperm for insemination purposes. The parties intended at that point to proceed with a surrogacy. The Applicants researched fertility clinics and the mother went to speak to her doctor about the process the following month.
242However, the surrogacy never came to fruition, as the mother became pregnant by Mr. Amyotte. There was no written pre-conception Surrogacy Agreement which was executed by the parties. There was no insemination by either of the Applicants.
243Although the mother may have advised the Applicants that if she became pregnant, they would be the caregivers of her child, I am not satisfied that on a balance of probabilities the mother specifically had intercourse with Mr. Amyotte to create a life to be ultimately provided to the Applicants by this method. Regardless, there was no evidence, in my view, that would convince me that Mr. Amyotte was donating his sperm for this purpose.
244I do feel it was incredibly reckless of the Respondents to have unprotected sex. As they, themselves stated, they had been together for about three months in a new relationship, they were living under the same roof as the mother’s husband and his girlfriend, and Mr. Amyotte had already impregnated another woman after a brief relationship with her. Their judgment is this regard was lacking.
245Once the Respondents learned the mother was pregnant, it was the two of them who discussed the situation, without influence, and who contacted the Applicants to ask them whether they would consider raising their child, as there were no biological ties. This act, in itself, supports the fact the Respondents may not have set out to procreate a child specifically for the Applicants.
246The Respondents themselves came to conclusion they were simply not ready to parent as a result of their circumstances. The mother did not wish to terminate the pregnancy. The Respondents did not wish for the child to go into foster care. They both wanted the Applicants to act as “forever parents” and raise their child. The Respondents had no concerns about the Applicants ability to care and parent a child as a result of their interactions with them.
247Once the Applicants wholeheartedly agreed to care for the unborn child, there were ongoing discussions about how to legalize the parties’ new plan. The new plan was to find a way to have the Applicants become the legal parents to the child, to care for the child and to make decisions for them. The intention was to have the Respondents come and visit the child anytime they wished, to be aware of information in the child’s life and to spend certain holidays together.
248All throughout the pregnancy, the parties believed they had an oral Surrogacy Agreement that could somehow be legally effected. As the mother had indicated to Mr. Jacobs, although there was no insemination, the result was the same, as he and Mr. Coulombe would be the parents to the child. Despite the fact this was no longer a surrogacy, all parties inaccurately used this term in describing their arrangement to one another and to third parties.
249In the meantime, all parties did research or made calls to various lawyers in an attempt to crystalize the plan for the Applicants to be the intended parents to the child. By June, 2020 the parties became aware that adoption was not a viable option as Mr. Coulombe had been told he would not be approved due to his criminal history, among other potential factors.
250Although Mr. Coulombe has plead guilty to three sets of charges, I am mindful these have taken place over a period of ten years. None of the charges were in relation to children, and they appear to be situational. I agree they, more than likely, stem from Mr. Coulombe’s mental health issues causing him to react impulsively and with anger. However, I was struck by Mr. Coulombe’s candidness about his struggles during his evidence and how he appeared to be cognizant of his diagnosis and his willingness to address his mental health needs. It also appeared Mr. Coulombe had supports in place who are aware of his condition and Mr. Jacobs is a protective and positive influence. As Mr. Amyotte noted, both men together are a great parenting team.
251During the entire pregnancy, the Applicants were as involved as possible. They communicated regularly with the mother and offered their support to her. They chose the child’s name, they held a gender reveal party, they announced to family and friends they were becoming parents, they relocated their residence to larger accommodations, they created a nursery, they purchased all necessary supplies and they organized time off work in anticipation of the birth. They took all necessary steps to get ready for their daughter.
252During the entirety of the pregnancy, the mother had advised third parties she had no intention of keeping the child. She advised individuals on social media, her doctor, her counsellor, the hospital social worker, her OBGYN as well as her own family that the child was going to be with the “dads”.
253There was no evidence of coercion by the Applicants towards the Respondents during the entirety of the pregnancy or after the birth. In fact, the mother was actively engaged in trying to come up with a legal solution to their dilemma. It was she who first raised lying on the birth certificate with the support from Mr. Amyotte. In fact, only days before the birth, the mother advised her counsellor she was upset with the fact that things had not yet been legalized and this was causing her stress. She made it quite clear she was uncertain what would happen if the Applicants could not take the child into their care, as she and Mr. Amyotte could not.
254I disbelieve the mother when she testified she felt she had no choice but to hand over her child to the Applicants after her birth. She suggested that because she had learned the Applicants had been in touch with Ms. Flowerday, things were in motion and essentially felt compelled to relinquish her child to the Applicants. This is completely contrary to the evidence. The mother had insisted prior to and at the time of the birth of Isabelle that she and Mr. Amyotte were not in a position to be parents. Mr. Amyotte also testified that despite some reservations he had about giving Isabelle to the Applicants, he and the mother were not in a position to be parents, and could not provide for their daughter.
255I do not doubt the love the Respondents had and have for Isabelle. I do not doubt it was difficult for them to give up their daughter to the Applicants, but at that time, they chose to do so and they did so. They believed it was the best thing to do for their daughter, as the Applicants could provide stability and meet all of Isabelle’s needs. The mother confirmed as much with her counsellor as of March, 2021.
256After the birth of Isabelle, the parties continued to press on to find a way to make their arrangement legal. They all agreed to work with Ms. Flowerday. The evidence suggests Ms. Flowerday advised the parties that she could bring an Application for a Declaration of Parentage and a Declaration of Non-Parentage. I believe all parties were aware that there was no guarantee the Application would be accepted as a result of their unique situation.
257Once the parties were made aware the Application was denied in April, 2021, the mother, in particular, had second thoughts about her decision. She may have had them much earlier, but this event crystalized the fact that she still retained her legal parental rights and could now seek her daughter’s return.
258In his evidence, Mr. Amyotte noted that he was prepared to do whatever the mother wished, in regards to their daughter.
259Contrary to what Ms. Blair and Mr. Amyotte stated, it appeared to me the Applicants had been reaching out to the Respondents regularly to provide them with information and pictures regarding Isabelle and were always open to visitation. I believe Ms. Blair came to the realization that what she had envisioned would happen after Isabelle’s birth was not occurring. At this same time, both she and Mr. Amyotte had secured employment and presumably felt they had more stability.
260Unfortunately, by mid-April, the Applicants had provided day-to-day care and love to Isabelle, as they believed she was their daughter. They organized their lives to become her parents and suddenly, the Respondents now wanted her back, just like that.
261Obviously, since the parties never legalized Isabelle’s placement, it has led to the current fiasco and litigation. The parties have lost all trust in one another, and Isabelle is caught in the middle.
262The Respondents claimed they felt they have been lied to by the Applicants. The evidence does not support these allegations. It appears to me Ms. Blair and Mr. Amyotte have not accepted any responsibility for their part in the circumstances giving rise to the situation.
263At the end of the day, and despite legislative safeguards not being followed, certain parenting arrangements were put into motion and these actions have had consequences.
264The Applicants have exclusively cared for Isabelle for the first 16 months or her life. They have had joyous occasions with her, and more than likely, sleepless nights. They have met all of her physical, emotional, developmental and financial needs. They can read her cues and they are making decisions for her future. There was no evidence they were not providing good and proper care of her.
265I realize the Applicants are not Isabelle’s biological parents. I concur the Respondents have been providing good care to Isabelle during their parenting-time. However, Isabelle’s psychological parents, with whom she is attached, are her two “dads”, namely, the Applicants. The Applicants have provided her with physical, emotional and psychological safety for her well-being.
266Isabelle appears to have a secure attachment with the Applicants. There is a possibility that if she were to be placed with the Respondents, she could still form further secure attachments, which would not negatively affect her development. However, why would I do this? Why would I risk this child’s development when she is feeling loved, safe, nurtured and has a parental connection with the Applicants? Why would I now change the status quo when the Applicants have a history and a proven track record with the development of this child and have met all of her needs, and presumably will continue to do so? The fact that the Respondents are her biological parents and want her return is simply not enough. I must look at the totality of the evidence and the circumstances and be guided by the legislative factors to determine what is in this child’s best interests.
267The fact that particular safeguards were not followed or adhered to is not enough to return this child to her biological parents. It is the here and the now and where we are today.
268For the reasons noted above, I see no reason whatsoever why I would now, at this stage, change Isabelle’s parenting placement. Her primary residence shall continue to be with the Applicants.
Decision-Making Responsibility
269There was no evidence to suggest the Applicants have not made good decisions for Isabelle. Thus far they have made good decisions on her behalf, including decisions about her physical care.
270Although the Respondents are not happy with the level of information being furnished by the Applicants or the parenting-time they have received, I was impressed with the Applicants’ desire to share what I believe to be fulsome information with them, and their willingness to provide them with consistent parenting-time. The Applicants also made it quite clear that Isabelle will know and be loved by her biological parents and have a relationship with them, while at the same time being cared for and loved by them as her other parents. I did not get the same impression from the Respondents, and I believe I can safely assume they resent the Applicants for keeping their daughter away from them.
271The evidence does not lead me to believe that joint decision-making responsibility would be effective, as per the principles outlined by the Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275. I concur with Justice Sherr in L.B. v. P.E. 2021 ONCJ 114 at Paragraph 95 when he held that mutual trust and respect are basic elements required for an order for joint decision-making to work effectively. Unfortunately, this is simply not the case here.
272In my view, there is no reason Isabelle can not have four parental figures in her life who will love, guide and nurture her. However, someone must make major decisions for Isabelle, and that should be the Applicants, considering they will be providing the majority of her care and have already been making decisions on her behalf. I agree the Respondents should be apprised of any major decisions affecting Isabelle’s health, education and general well-being, and that they should be permitted to provide their input, but the Applicants should have the final say.
273I do hope that, with time, the parties will communicate with one another more freely for the sake of Isabelle, which is in her best interests. I would hope they could agree to work with a professional at some time in the future when Isabelle is old enough to be told her story and understand how much she is loved.
Parenting-time
274I believe it is important for Isabelle’s development that she continues to have structure and routine and ongoing daily care from the Applicants, who are the parent figures she knows.
275However, she should also have ongoing parenting-time with the Respondents, allowing her to flourish her relationship with them, which is also in accordance with the parties’ original intention. Regardless, it is in Isabelle’s best interests to have quality parenting-time with the Respondents.
276I concur it is time to expand the parenting-time and include overnights. The evidence revealed Isabelle has never been away from the Applicants for an overnight visit, not even with Mr. Jacobs mother. For this reason, I am agreeable to transition parenting-time, commencing with one overnight visit during alternate weekends. However, I believe it is important for the Applicants to also have uninterrupted weekends with Isabelle.
277There should be a transitional period of time for Isabelle before introducing a second overnight visit. I see no reason why this cannot be implemented after a few months’ time. This will also permit the Respondents a better opportunity to bond with Isabelle and to expose her to other family members who may not live in the Niagara Region. I believe what I have set out focuses on Isabelle’s best interests, considering her age and stage of development, and to reduce conflict between the parties, the Applicants should have the discretion to determine future parenting-time thereafter.
Should the Applicants be added as legal parents to Isabelle?
278Rules of Parentage as defined by the Children’s Law Reform Act are outlined at paragraphs 4 through to 13. Some of the relevant provisions are as follows:
Person is Child of Parents
4(1) A person is the child of his or her parents.
Determining Parent of a Child
(2) A parent of a child is,
(a) a person who is a parent of the child under sections 6 to 13, except in the case of an adopted child;
(b) in the case of an adopted child, a parent of the child as provided for under section 217 or 218 of the Child, Youth and Family Services Act, 2017.
Provision of Reproductive Material, Embryo Not Determinative
(5) A person who provides reproductive material or an embryo for use in the conception of a child through assisted reproduction is not, and shall not be recognized in law to be, a parent of the child unless he or she is a parent of the child under this part.
Birth Parent
6(1) The birth parent of a child is, and shall be recognized in law to be , a parent of the child.
Other Biological Parent, if Sexual Intercourse
(7) 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.
279Accordingly, there is no dispute Ms. Kobryn Blair is recognized as Isabelle’s birth parent, pursuant to sub-section 6(1) of the Children’s Law Reform Act.
280By virtue of being the person whose sperm resulted in the conception of a child conceived through sexual intercourse, there is no dispute that Jake Amyotte is recognized as Isabelle’s parent pursuant to subsection 7(1) of the Children’s Law Reform Act.
281Consistent with these legal requirements, both Respondents are listed as Isabelle’s parents on her Statement of Live Birth as well as her Birth Certificate. They will remain the legal parents of Isabelle.
282The Applicants seek a Declaration of Parentage to also be legally recognized as Isabelle’s parents with the Respondents.
283As was previously mentioned, the Applicants sought and were denied approval of their Declaration of Parentage from the Ontario Ministry of Government and Consumer Services, whose usual and ordinary course of business includes reviewing such applications.
284An adoption is not possible without following the adoption provisions of the Child, Youth and Family Services Act, and does not apply to this matter.
285Likewise, surrogacy is not possible under s. 10 of the Children’s Law Reform Act without conception by assisted reproduction, a written Surrogacy Agreement prior to conception and independent legal advice for all parties, and as such does not apply to this matter.
286Section 13 of the Children’s Law Reform Act permits the court to make a Declaration of Parentage even if surrogacy or adoption are not possible if certain limited criteria are met under this section, as follows.
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 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:
A declaration of parentage that results in the child having more than two parents.
A declaration of parentage that results I 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 purpose of subsection (4):
The application for the declaration is made on or before the first anniversary of the child’s birth, unless the court orders otherwise.
Every other person who is a parent of the child is a party to the application.
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.
The declaration is in the best interests of the child.
287There is not a lot of existing case law on having more than two declared parents under s. 13 of the Children’s Law Reform Act.
288Madsen, J. dealt with s. 13 of the Children’s Law Reform Act in M.L. v. J.C., 2017 ONSC 7179, which resulted in a child having three parents. In March 2014, the parties, Mark and Jane, who were good friends, agreed to assist one another with the conception of two children. One child would be for Mark, and one child would be for Jane and her spouse Samantha. There was no written agreement between the parties, and neither party received independent legal advice on any agreement, written or oral. Jane was inseminated with Mark’s sperm and gave birth to one child, who was one year old at the time of this decision. Samantha was not able to become pregnant. Mark sought a declaration that he is the child’s sole parent and that Jane is not a parent. Jane sought 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.
289Madsen J. held that Jane and Samantha are legal parents to the child. Jane is a birth parent under s. 1 of the Children’s Law Reform Act by virtue of having given birth to the child. Samantha is a parent under s. 8(1) of the Children’s Law Reform Act, which states that 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.
290Madsen J. also held that Mark is a legal parent of the child and made the following comments:
[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 parenting 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 interest 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 interest 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 M. 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 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 parenting 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 the 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 one 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 agreement was made.
291Madsen J. then went on to find Mark to be a parent using the Court’s parens patriae jurisdiction, noting that the amended Children’s Law Reform Act does not permit a recognition of parentage for Mark and constituted a legislative gap, which was contrary to the best interests of B.G. Madsen, J. stated that if she was wrong in using the Court’s parens patriae jurisdiction she would also alternatively rely on s. 97 of the Courts of Justice Act to declare that Mark is a parent to B.G.
292Finlayson J. decided it was not possible to add another parent under s. 13 in the decision of Roy-Bevington v. Rigden, 2017 ONCJ 730. In this case, there was a biological mother, her husband (Mr. Rigden), and a biological father (Mr. Roy-Bevington). The mother had a two-month relationship with the biological father when she separated briefly from her husband and became pregnant. She then reconciled with her husband. The mother did not acknowledge the father on the Statement of Live Birth. The mother, her husband and the child (Kieran) all live together.
293Finlayson J. briefly touched on the issue of the identity of the child’s parents and noted to following:
[24] The mother has put Kieran’s parentage in issue in relation to the issue of her name. During her submissions, the mother argued that Kieran had two fathers, Mr. Rigden and Mr. Roy-Bevington. She argued that Mr. Rigden was Kieran’s father too, and that this militated in favour of keeping Kieran’s surname as “Rigden”.
[25] I do not intend to minimize the important role that Mr. Rigden has in Kieran’s life, but as the mother has argued this, her position is not correct in law.
[26] Amended sections 6(1) and 7(1) of the amended Children’s Law Reform Act as a result of the passage of Bill 28, All Families Are Equal Act, read:
6(1) Birth parent – The birth parent of a child is, and shall be recognized in law to be, a parent of the child.
7(1) Other biological parent, if sexual intercourse – 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.
[27] Although the Ontario Court of Justice cannot grant declaratory relief, it can make findings of parentage. Because the mother has raised the question of Kieran’s parentage, I find that Ms. Ball Rigden is the child’s mother and Mr. Roy-Bevington is the child’s father. M.R.R. v. J. M., 2017 ONSC 2655 (S.C.J.) is the first reported case that I am aware of that considers the recent amendments to Part I of the Children’s Law Reform Act. At paragraph 79 of M.R.R. v. J.M., Fryer J. Said:
Where a child is conceived through sexual intercourse, the onus in not on the birth parent to seek a positive declaration of parentage but rather on the party who seeks a declaration of non-parentage. A party who otherwise falls within the definition of parent under s. 4 and s. 7 but has not explicitly reached agreement to the contrary before a child is conceived will be deemed to be a child’s parent with all of the associated rights, privileges and obligations.
[28] Pursuant to the amended ss. 4(4) and 13 of the Children’s Law Reform Act, it is not possible for Mr. Rigden to be added as parent, where he to bring an application for a declaration of parentage in the Superior Court of a declaration of parentage respecting Kieran.
294Although it was always the intention of the parties that the Applicants would be the intended parents to Isabelle, the evidence actually suggests it was the parties’ intention for the Respondents to not be legally recognized as Isabelle’s parents. There was never any intention to have all four parties be the legal parents for the child. Regardless, these discussions only took place after conception.
295As I previously stated, I am not convinced that when Ms. Blair and Mr. Amyotte set out to have sexual intercourse with one another they set out to conceive a child by donating or gifting their egg and sperm for the sole purpose of providing the Applicants with a child. In all of the communications I have read (and there are many), the mother never stated the conception was planned for this purpose. She actually refers to her pregnancy as an “oops” or accident. There were no communications I could find suggesting Mr. Amyotte set out to intentionally donate his sperm.
296I believe the facts of this case can be distinguished from Madsen J.’s case. In particular, this case does not involve an insemination or the specific pre-conception intent of gifting reproductive material. There was no evidence prior to conception that every parent of the child (Ms. Blair and Mr. Amyotte) and every person in respect of whom a declaration respecting that child is sought under the application intended to be (Mr. Jacobs and Mr. Coulombe), together, parents of the child. For this reason, I cannot declare the Applicants as Isabelle’s legal parents.
297Subsection 13(5) requires the court to consider along with pre-conception intent and other factors, that the declaration is in the best interest of the child. I agree it was open to the legislature to require that the best interests of the child be considered with respect to any declaration of parentage, but it did not and chose to omit same.
298The request for this relief is denied.
ORDER
299There shall be a final Order as follows:
The Applicants shall have sole decision-making responsibility for Isabelle Joan Amyotte born January 6, 2021.
The Applicants shall consult with the Respondents and apprise them of all major decisions affecting Isabelle’s health, education and general well-being in order to obtain the Respondents’ input on the major decision. Thereafter, the Applicants shall have the final say regarding the major decision.
Day to day decision-making responsibilities shall be made by the party who has the care of Isabelle at the time.
Isabelle shall reside and have her primary residence with the Applicants.
The Respondents shall have the right to obtain information directly from all professionals and service providers involved with Isabelle and be permitted to direct communication with them including from daycare staff, doctors, dentist and school authorities. The Applicants shall keep the Respondents informed, in writing of the names and telephone numbers of any professionals involved with Isabelle.
The Respondents shall have parenting-time with Isabelle as follows:
a. Alternating weekends from Saturday at 4:00 p.m. to Sunday at 4:00 p.m. effective immediately commencing on Saturday June 4, 2022;
b. Thereafter, the parenting-time on weekends shall be expanded from Saturday at 10:00 a.m. to Sunday at 4:00 p.m. commencing July 30, 2022;
c. Thereafter, the parenting-time on weekends shall be expanded from Friday at 5:00 p.m. to Sunday at 5:00 p.m. commencing September 17, 2022;
d. Each Wednesday from 4:00 p.m. to 8:00 p.m.
e. Mother’s Day shall always be spent with Ms. Blair from 10:00 a.m. to 7:00 p.m., regardless of the usual parenting-time schedule;
f. Father’s Day shall rotate between the Applicants and Mr. Amyotte from 10:00 a.m. to 7:00 p.m. such that in even-numbered years, Mr. Amyotte will enjoy the entire day, regardless of the usual schedule and in odd-numbered years, the Applicants will enjoy the day, regardless of the usual schedule.
g. Christmas will alternate on a yearly basis regardless of the regular schedule. In even-numbered years, the Respondents will enjoy Isabelle from Christmas Eve at 10:00 a.m. to Christmas Day at noon and the Applicants will enjoy Christmas Day at noon to Boxing Day at 4:00 p.m. In odd-numbered years, the Applicants will enjoy Isabelle from Christmas Eve at 10:00 a.m. to Christmas Day at noon while the Respondents will enjoy Christmas Day at noon through to Boxing Day at 4:00 p.m.
h. The Respondents shall be solely responsible for transportation during their parenting-time.
The parties shall communicate important information as it relates to Isabelle by using AppClose, text message or email.
In the event of an emergency, the parties shall contact the other party by telephone to notify them immediately of the emergency.
The parties shall refrain from making disparaging or negative remarks about the others to the child or in the presence of the child or on any social media platform.
300In the event either party wishes to claim costs, they shall serve and file their written submissions by no later than June 14, 2022. The other party shall respond to same by June 28, 2022. Any reply shall be provided by July 6, 2022. The written submissions shall be of no more than 5 pages in length, double spaced not including any Bill of Costs or Offers to Settle.
Gregson, J.
Released: 2022/05/31
