COURT FILE NO.: FS-20-0019409-0000
DATE: 20231220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cristina Corti
Applicant
– and –
Luca Mazzini
Respondent
Michael Stangarone, Tiffany Guo for the Applicant
No one appearing for the Respondent
HEARD December 14, 2023
L. brownstone j.
Overview
[1] The applicant mother seeks several orders under the Children’s Law Reform Act R.S.O. 1990 c. C.12. First she seeks an order under s. 41 of the CLRA recognizing and enforcing the decision of the Law Court of Lecco, Italy dated May 13, 2014 (“the Lecco Order”), giving her sole decision-making authority in respect of her child. She also seeks a declaration under s. 13(1) of the CLRA that the respondent is not a parent of the child. If necessary, she seeks an order superseding the Lecco Order under s. 42(1) of the CLRA.
[2] For the reasons that follow, I grant final judgment recognizing and enforcing the decision of the Lecco Order granting the applicant sole decision-making authority over the child. I dismiss the application for a declaration under s. 13(1) of the CLRA that the respondent is not a parent of the child. Nor do I grant an order superseding the Lecco Order.
Background
[3] The facts in this matter are uncontested. The applicant is a citizen of both Italy and Canada. She lived in Italy until the year 2000, in Canada from 2000 to 2005, in Italy from 2005 until 2017, and in Canada since 2017.
[4] In 2011, while living in Italy, she met the respondent while on a week-long scuba-diving trip in Egypt, during which she became pregnant with the child. When she told the respondent that she was pregnant, he told her to have an abortion. She refused and states that the respondent became furious and said that he did not want to be part of the child's life. The child was born in early 2012.
[5] Shortly after the child was born, the applicant learned that the respondent had committed criminal offences. His criminal record comprises the following: in 1991, he was sentenced to eight months of imprisonment for faking an illness, which was apparently done in order to evade military service; in 2007, he was convicted of unlawfully practicing dentistry and appears to have been sentenced to 2 months of imprisonment; in 2013, he was convicted of violating his family assistance obligations in relation to payments owing to his former wife and children and was sentenced to 40 days of imprisonment.
[6] The applicant states that shortly after the child's birth, the respondent extracted money from her to pay off several debts. Further, she states that when she asked the respondent to explain his criminal charges, he became violent and aggressive and said he would harm her if she shared the information about the charges with anyone else. In June 2012, when the child was five months old, she told the respondent she would no longer provide him with funds to pay his debts, after which the respondent began stalking her. After some incidents, she contacted the police to seek help and protection. Around September 2012, when the child was nine months old, the respondent disappeared and has been absent from the child’s life ever since.
[7] In 2013, the applicant commenced proceedings in the Law Court of Lecco, Italy, seeking sole custody of the child, as well as child support and contribution towards special expenses from the respondent. The respondent was notified of the proceedings but did not participate in them or file any documents. On May 13, 2014, the Law Court of Lecco ordered that the applicant has sole custody of the child, that the respondent pay monthly child support, that the respondent contribute 50% of the child's school fees, recreational sports expenses, and health related expenses, and that the respondent pay costs to the applicant. No order was made for parenting time. The court noted that it seemed “useless” to set parenting time without the respondent having shown a concrete interest in a relationship with the child. If there were to be parenting time in the future, it would be supervised, considering the respondent's threatening behaviors against the applicant.
[8] The child has always lived with the mother; the respondent has never shown any interest in the child or spent any time with him. He has never paid child support or made any other financial contributions for the child. Nor has he paid the costs award from the Lecco Order. He has not sought any information about how the child is doing or asked to meet the child.
[9] The child is the beneficiary of the applicant’s estate. The applicant is concerned that, given that the respondent is financially motivated and has in the past extracted money from her by using threats and inducing fear, if something were to happen to her, the respondent would seek to gain access to her estate by invoking his parental status of the child.
This proceeding
[10] In October 2020, the applicant began this proceeding, originally seeking only a declaration under section 13(1) of the CLRA that the respondent is not a parent of the child and costs.
[11] The respondent was served with the Application through the Central Authority in accordance with the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. He filed no Answer and, although further served with notice in advance of the case conference that was held, filed no materials for the conference. Nor did he seek to attend the conference. At that case conference on April 22nd, 2022, Sharma J. expressed concern that without the Lecco Order being recognized in Ontario, there is no person with legal authority to exercise decision-making responsibility with respect to the child in Ontario. The applicant therefore amended her Application to seek an order recognizing and enforcing the Lecco Order under s. 41(1) of the CLRA. Sharma J. ordered that if the respondent did not answer the Amended Application, the applicant could proceed by way of uncontested trial.
[12] The respondent did not file an Answer and the matter came before me by way of uncontested trial in writing in September 2023. I required the applicant to file a factum and to appear in person, given concerns I had about the operation of s. 13(1) and s. 15 of the CLRA in circumstances in which there was an order for child support in another jurisdiction.
[13] On December 14, 2023, the applicant appeared before me in accordance with my September 27, 2023 endorsement.
Relevant statutory provisions
[14] The CLRA provides in relevant part as follows:
13 (1) At any time after a child is born, any person having an interest may apply to the court for a declaration that a person is or is not a parent of the child.
(3) If the court finds on 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.
15 (1) A declaration made under this Part shall be recognized for all purposes.
(2) A declaration made under this Part is deemed to have been effective from the child’s birth.
41 (1) Upon application by any person in whose favour an order granting decision-making responsibility, parenting time or contact with respect to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,
(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
(2) An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such.
42 (1) Upon application, a court by order may supersede an extra-provincial order in relation to decision-making responsibility, parenting time or contact with respect to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made,
(iii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iv) that the child has a real and substantial connection with Ontario, and
(v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Recognition and enforcement of the decision-making provisions in the Lecco Order
[15] The operative portions of the Lecco Order provide:
The mother is granted the sole custody of the couple’s minor son [X];
The father is obliged to contribute for the maintenance of his child for the amount of €250.00 per month, subject to revaluation by law, in addition to 50% of health costs not covered by the NHS, as well as school and recreational sports costs;
The defendant is ordered to refund the costs of the proceedings paid by the applicant amount to €950.00, as well as other expenses provided for by law.
[16] Subsection 41(1) of the CLRA requires the court to recognize an extra-provincial order granting decision-making responsibility, parenting time or contact with a child to a person, on application by that person, unless certain exceptions apply.
[17] The onus is on the party who opposes the recognition of the order to satisfy the court that an exception applies: Onuoha v. Onuoha, 2020 ONSC 6849 at para. 61. The respondent, though appropriately served, took no steps to oppose the order sought.
[18] In any event, on the evidence before the court, none of the exceptions in ss. 41(1)(a) to (e) applies in this case. The respondent was properly served with notice of this proceeding and with the Lecco proceeding, the Lecco Order evidences its concern with the best interests of the child, the Lecco Order is not contrary to public policy in Ontario, and there are no jurisdictional issues. The child is clearly habitually resident in Ontario under s. 22(2)2 of the CLRA.
[19] I note that the Lecco Order also contains provisions for child support. The mother does not ask that this portion of the order be recognized and enforced. Given the specific wording of s. 41(1) that limits itself to recognizing and enforcing parenting orders, I find that it is appropriate to recognize and enforce only the decision-making portion of the order. The term “order” in s. 41(1) has been interpreted as applying to only those portions of an order that relate to custody or an incident of custody: Cabral v. Cabral, 2005 CanLII 63815at para. 38.
[20] I therefore am satisfied that the conditions for recognition of the Lecco Order have been met. This court recognizes the Lecco Order granting the mother sole decision-making for the child. Having recognized the order, under s. 41(2) of the CLRA, the order shall be deemed to be an order of this court and enforceable as such.
Declaration of non-parentage
[21] The applicant’s position is that the respondent is essentially a sperm donor and not a parent of the child. As stated above, the child is the beneficiary of the applicant’s estate. She seeks the declaration that the respondent is not a parent in order to protect the child from any potential future financial prejudice in the event the applicant dies. She is concerned that the respondent will try to assert his rights as the child’s parent solely for financial gain. She states that his past conduct in extracting money from her legitimates this fear.
[22] As the applicant notes, a declaration of non-parentage is deemed effective from the child’s birth. A party that is found not to be a parent would have no child support or other legal obligations towards the child, nor any rights and privileges of parenthood: R. (M.R.) v. M.(J.), 2017 ONSC 2655 at para 154.
[23] The Lecco Order contained, at the applicant’s request, orders that the respondent pay monthly child support and contribution to the child’s special expenses. The court noted that “the love relationship between the parents ended nearly 9 months after [the child’s] birth and from then on the father never paid any money for the maintenance of the child”.
[24] As stated above, under s. 15(2) of the CLRA the declaration that the respondent is not a parent would be effective from the child’s birth. Even though the mother does not seek to enforce the child support obligations from the Lecco Order and is willing to undertake not to seek to enforce the child support obligations under that order in any jurisdiction, the existence of the order creates insurmountable difficulties vis-à-vis her request for the non-parentage declaration.
[25] I am unable to reconcile the existence of the child support order with a declaration that the respondent is declared not to be a parent from the date of the child’s birth. That order was clearly made on the basis that the respondent was the child’s father. To make an order that the child had no father from birth would be inconsistent with that order. Even though the applicant does not seek to enforce that order in Ontario, it is an existing valid order of another jurisdiction of which this court has been made aware.
[26] Further, the Lecco Order has evidentiary value that contradicts the applicant’s arguments made in support of her s. 13(1) application. That is, she argues that pre-conception intent is an important consideration in a declaration made pursuant to s. 13, which represents a shift away from a focus on biology toward a focus on intention: R.(M.R.) at para. 86. The parties are free to determine a family unit. She argues that both pre- and post- conception intent in this case demonstrate that the respondent was to be no more than a sperm donor.
[27] There is no pre-conception written agreement in this case as contemplated in s. 7(4) and s. 9 of the CLRA. Indeed, in this case there is no evidence of any pre-conception discussions between the parties. The respondent certainly has shown no interest in the child, nor in being a father. I accept that his post-conception intentions are to have no relationship with the child. However, the evidence is that the mother successfully sought to impose legal obligations on the respondent that he would only have as a father of the child. This is not consistent with her position that her intention was that the respondent was simply a sperm donor, both pre- and post-conception.
[28] I therefore find that it would be improper to issue a declaration of non-parentage in these circumstances and I decline to do so. Presumably, the applicant can protect against her financial concerns that motivated this application by estate-planning measures.
Superseding the Lecco Order
[29] In her factum the mother asks as alternative relief that the Lecco Order be superseded by an order of this court under s. 42(1) of the CLRA. This relief was not sought in her Application or Amended Application. In any event, s. 42(1) permits the court to supersede an extra-provincial order regarding decision-making, parenting time, or contact in certain circumstances. Such an order is not necessary and would be contradictory to the order the applicant sought, and which I have granted, recognizing the extra-provincial order regarding custody/decision-making.
Costs
[30] The applicant sought full recovery costs in the amount of $20,363.57 inclusive of HST and disbursements. Under Rule 24 of the Family Law Rules, there is a presumption that a successful party is entitled to the costs of a proceeding. The existence and reasonableness of offers to settle are factors to be considered as are, among other things, each party’s behaviour, time properly spent on the matter, and the importance, complexity or difficulty of the issues. Costs rules in family law cases are designed to partially indemnify successful litigants, encourage settlement and discourage inappropriate behavior: Mattina v Mattina, 2018 ONCA 867, para. 10. Proportionality and reasonableness are the “touchstone considerations” to be applied in fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840, para. 12.
[31] The applicant was partially successful. She obtained an order recognizing and enforcing the decision-making provisions of the Lecco Order. She did not obtain a declaration of non-parentage, which accounted for a significant portion of the time spent on the matter. However, the respondent’s behaviour must also be considered. He failed to engage with the application in any way, and has engaged in past behaviour that was sufficiently concerning that the applicant brought this application seeking relief that was somewhat novel in the circumstances. Considering these facts in the context of the costs factors above, I order the respondent to pay costs to the applicant in the amount of $12,000 inclusive of HST and disbursements.
Disposition
[32] Orders to go:
a. Recognizing the final order of the Law Court of Lecco dated May 13, 2014, granting the applicant sole decision-making of [X], born [X];
b. The order is deemed to be an order of this Court and shall be enforced as such;
c. The respondent will pay the applicant $12,000 in costs.
L. Brownstone J.
Date: December 20, 2023