Court File and Parties
Citation: A.E. v. L.K., 2026 ONSC 1628 Court File No.: FC-25-1208 Date: 2026-03-17 Superior Court of Justice - Ontario
Re: A.E., Applicant And: L.K., Respondent
Before: J.P.L. McDermot Counsel: N. Javed, for the Applicant Respondent, self-represented
Heard: By written submissions
Ruling on motion for summary judgment
1This is a "friendly" application brought by the Applicant, A.E. She and L.K. are a same-sex couple who began cohabitation in November, 2017. They are engaged to be married. At present, they are registered as the parents of a child, S.E., who was born to A.E. on August 23, 2023.
2S.E. was conceived through IVF. A.E. is the birth mother of S.E. and L.K. has no biological relationship with the child. Notwithstanding this, because of the committed nature of the relationship, L.K. requested that she be named as a parent of the child on her birth registration. A.E., who is registered as the birth mother of S.E., complied and both the Applicant and the Respondent are registered with the Registrar General for the Government of Ontario as being the parents of S.E. on her birth registration.
3This has proven to be a problem to these parties. A.E. immigrated to Canada from Siberia in the Russian Federation. Her 77-year-old mother remains there and is now diagnosed with stage 4 colon cancer. During the past two summers, A.E. has gone to Siberia to care for her mother who has no other family or caregivers where she resides. It is common ground that she is the primary caregiver of S.E. and that L.K. is unable to care for the child because of her mental health issues. L.K. has bipolar disorder and is rarely left alone with S.E. for more than a couple of hours. Therefore, S.E. has had to accompany A.E. to Russia when she goes there to care for her mother; she cannot be left with L.K. in Canada. The Applicant goes as far as to suggest that it would be dangerous to leave S.E. with L.K. for more than two hours at a time.
4This has been a difficult process. S.E. is not a citizen of Russia and, because of the Ontario birth registration in its present form, she cannot become a citizen because Russia will not recognize same-sex couples or the naming of L.K. as a parent on S.E.'s birth registration. Because of this, the Russian authorities will not entertain the Applicant's attempts to grant S.E. Russian citizenship. This was not an issue when it was raised soon after S.E.'s birth; however, with her mother's illness, A.E. can only go to Russia with S.E. for a maximum of three months because of the length of the available visas for S.E.
5That is the reason for this application. Both parents are in support of the change in the birth registration. However, that is not enough. The court must not only determine that there is jurisdiction to change the birth registration; it must also address whether to exercise its discretion to make that change.
6The parties originally presented this issue to the court as an uncontested motion on consent. Justice S. Jain dismissed this application on November 20, 2025. Although she found that there was jurisdiction to make the order that the parties requested, she did not find it to be in the child's best interests to do so on the limited evidence provided to her. The parties were forced to move, again on consent, for Justice Jain to confirm that the order she made was interim only, permitting them to conduct a case conference and bring this motion for summary judgment. That request was granted on December 9, 2025 when Justice Jain amended her November 20 order to an interim order.
7For the reasons set out below, I have determined that it is appropriate to remove L.K. from S.E.'s birth registration in order to permit A.E. to apply for S.E.'s Russian citizenship.
Jurisdiction
8The issue of jurisdiction was addressed by Justice Jain in her endorsement dated November 20, 2025. She determined that the court had statutory authority to make a declaratory order that a person is or is not a parent under s. 13(1) of the Children's Law Reform Act1 ("CLRA") which provides that a court may declare "that a person is or is not a parent of the child."
9Under s. 9(7) of the Vital Statistics Act2, the Registrar General must amend the particulars of the child's birth according to the declaratory order.
10Therefore, there is clear jurisdiction to make the orders requested.
11The major issue is whether the court should exercise its discretion to do so.
Exercise of Discretion
12It is apparent to me that, in the urgent motion before Jain J., the parties were largely relying upon their consent to the order by both parties. They brought an urgent motion relying upon that consent and the motion was dismissed by Justice Jain. They were confident in obtaining the order and therefore had asked for a final order; when the urgent motion was dismissed, they were forced to backpedal and request that the November 20 order be made temporary in nature so that they could bring this motion for summary judgment on better evidence. By endorsement dated December 9, 2025, Jain J. made her November 20 order temporary.
13The parties have now had a case conference and brought a motion for summary judgment for similar relief as that placed before Justice Jain on November 20, 2025. They have also provided more fulsome evidence of their parenting arrangements and the limitations of L.K.'s parental role concerning S.E.
14It is necessary first to see what the evidence intends to clarify beyond that relied upon by Justice Jain. Essentially, she decided that the order requested did not address the best interests of S.E. She noted that to invoke parens patriae in this matter could only be done if the failure to do so would put the child in danger and that the parties had failed to show the child to be in danger. She further stated, at paras. 17 and 18 of her decision where she discussed the parens patraie jurisdiction that she was requested to apply:
Of note, if I were to apply parens patraie jurisdiction, I would have to consider the serious implications of this child losing two parents having equal rights over her while she is visiting Russia. I am not confident the Respondent has considered what would happen should something terrible happen to the Applicant while in Russia with the child. How will this child return to Canada to be with her other mother? I certainly do not have evidence of planning in this regard in these materials. I do not have evidence of what will become of this child's Canadian status. It appears contrary to her rights and interests to invoke my jurisdiction to grant this order based on the evidence before me. I worry this child's parents are short sighted and solving one problem without due consideration to this child's status and rights.
As for inherent jurisdiction, this power extends to justice within the court room and Canadian law. It does not apply to participate in meeting Russia's discriminatory demands or to address justice related to discriminatory practices in Russia.
15From these reasons, it appears that, based upon the evidence that was before her, Justice Jain determined that the parties had failed to address S.E.'s best interests. The concern was the child's relationship with her "other mother" and whether L.K. could take steps to obtain the return of the child if something happened to A.E. in Russia. She expressed concerns about the child losing her status as a Canadian citizen. Finally, on policy grounds she found it objectionable to accede to the discriminatory Russian policies and demands in making the order.
16The evidence now filed by the parties addresses in part the issues of concern to Justice Jain. The affidavits of L.K. and A.E. confirm the following:
a. L.K. suffers from severe bipolar disorder. Her parenting role is extremely limited. She can only parent S.E. for a maximum of two hours at a time. b. L.K.'s treatment involves the use of drugs that prevent her from waking at night to care for the child and she cannot care for the child for more than a couple of hours at a time. Essentially, the parties agree that S.E. would be in danger were she left with L.K. for any greater period of time than two hours. c. A.E. exercises sole decision-making authority concerning S.E. d. A.E. has named her sister in Calgary as S.E.'s guardian. It would be she who would attend in Russia to obtain the return of the child if something happened to A.E. when she was visiting her mother in Russia. e. L.K. is now willing to renounce her parental rights to S.E.
17Most of this evidence was not available to Justice Jain when she considered this matter (now on a temporary basis). All that Justice Jain knew was that, because of "health issues", L.K. could not parent the child for extensive periods of time. Those health problems, according to the affidavits before her, involved the use of sedatives which resulted in her being unable to care for the child overnight and for extended periods of time. The court was not provided with details of the mental health problems that L.K. suffers from. Justice Jain was also not advised of the fact that the Applicant's sister was named as guardian of the child and would be designated to return S.E. to Canada if necessary.
18There is little guidance from the case law on the criteria that the court should consider for the purpose of exercising its discretion to remove a party from a child's birth registration or to declare that a party is no longer a parent of the child. Similarly, the legislation granting the court's jurisdiction is quite broad and does not provide particular guidance, as s. 13(3) of the CLRA states "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."
19This is unlike the case where the court is making an order which would result in a child having more than two parents or a parent other than a biological parent under s. 13(4) of the CLRA. That is a situation where the legislature determined that caution must be exercised.
20Because some caution must be exercised under s. 13(4), there are criteria in that situation as set out in s. 13(5) as follows:
- 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.
21Those criteria are not applicable to this application which is to remove a "parent" from the child's birth record. They indicate, however, a higher bar than the present application as the legislature has deemed an application under s. 13(4) as a matter which must be approached with some caution as confirmed by the specific criteria under s. 13(5). Otherwise, the structure of the act and s. 13 indicates that any other application concerning a declaration of parentage is essentially discretionary and s. 13 of the CLRA is permissive in nature.
22It is, however, also necessary that the court exercise its discretion in a manner that honours the original designation of a parent in a birth registration: see M.R.R. v. J.M., 2017 ONSC 2655, 137 O.R. (3d) 605, where Fryer J. determined [at para. 85] that the "pre-conception intent is an important consideration in a declaration made pursuant to s. 13." Fryer J. confirmed that the court had wide discretion in making an order and need not consider the best interests of the child. However, there was also no determination that the court cannot consider the child's best interests.
23In M.D. v. T.K., 2021 ONSC 8514, the court refused the removal of a party as a parent because of pre-conception intent; however, unlike the present case, this was a contested hearing where one party sought to remove the other's parental rights to prevent him from exercising parenting time with the child. That is distinguishable from this case as this is an application proceeding on consent and the Respondent is taking the opposite position, agreeing to renounce her parental rights for the purpose of allowing this claim to proceed and to allow the Applicant to apply for Russian citizenship for S.E.
24In the present case, the parties' pre-conception intent was clearly to provide for two parents of S.E., being the Applicant and the Respondent. If this was the only factor, the application would have to be dismissed. However, in bringing this application, the parties largely rely upon the best interests of the child. They find themselves in an impossible situation. The child cannot be left in the care of L.K. and the Applicant needs to attend in Russia for lengthy periods of time to assist her mother. She is S.E.'s primary caregiver and there is no one to take her place. A.E.'s sister cannot attend in Russia because she runs a home daycare business that cannot be closed for extended periods of time without her losing her livelihood. A.E.'s mother requires ongoing assistance and A.E.'s attendance for lengthy periods of time.
25The integrity of the family is directly related to the best interests of the child. The child resides in a home with both of the parties who intend to marry. The child's best interests remain dependent upon the stability of her family unit which is threatened by the Applicant's inability to travel to Russia to address her mother's health issue. The mother of the child, A.E., desperately wants the right to travel to Russia with S.E. to assist her mother in her battle against her stage 4 colon cancer and her inability to do so would directly affect the best interests of S.E.
26In this case, even though the pre-conception intent was to make L.K. a parent to S.E., the well being of the child's primary caregiver is directly related to the child's best interests. That, in my view, is more important than adherence to the pre-conception intent where the parties have agreed to change their mind and change the birth registration. I am concerned that a refusal of the application would result in strains within the family unit which may also be challenged by the Respondent's mental health challenges.
27There was also a public policy issue in giving in to the homophobic policies of the Russian government. Russian government policies are something that the court can do little about. The parties must navigate the child's best interests in light of the constraints that the outside world hands them and this court is similarly limited in its abilities. In this case, the Applicant and the Respondent, a same-sex couple, have to address the rules and regulations of a state that is hostile to their relationship and their intention to marry. They can do little about that and the court should give effect to their joint decision unless it can be shown to harm the child. A pragmatic approach is therefore necessary to address the best interests of the child in light of the Russian bias against same-sex couples and, again, the integrity of this family unit and the decision made by both of the parties. See A.A.H. (Re), 2025 ONSC 5564, where a flexible approach to parental rights and obligations was adopted in order to address the best interests of the child. In that case, Stothart J. made an adoption order for a same-sex couple who were the legal parents of their child on the child's birth registration. The court found that international protection of adoptive parental status was in the child's best interests.
28In any event, I find that the best interests of the child are best served by making the order requested. The order requested permits the Applicant to travel with the child to Russia and the concerns of Justice Jain expressed in her interim endorsement have been largely addressed. I am satisfied there is no genuine issue for trial which would permit another finding. Further, the best interests of the child override the pre-conception intentions of the parents; as with many decisions made within a family unit, the parents of a child are entitled to change their minds to address changing circumstances.
29The parties' factum focused on the court's parens patriae authority. That doctrine is usually used to find jurisdiction for a requested order where there is no specific statutory authority to make that decision. In a similar context to the case before me, this inherent jurisdiction has been used to declare amendments to legal parents on birth registrations. See for example, M.D. v. L.L. (2008), 2008 9374 (ON SC), 90 O.R. (3d) 127 (Ont. S.C.), where the court used parens patriae authority to declare a surrogate mother was not a mother of the child.
30Cases such as M.D. v. L.L. predated the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23, which amended the CLRA and filled the legislative gap which impacted surrogate mothers, sperm donors, and same-sex couples' parentage rights. Therefore, in this case, jurisdiction to make the order is now clearly established under s. 13 of the CLRA. There is no need to find jurisdiction. The only issue is whether to make the order, not whether the order can be made. Therefore, I find that there is no need to access the court's parens patriae powers which do not assist in determining the factors affecting the court's exercise of jurisdiction.
31Therefore, there shall be an order to go as requested in the motion declaring that the Respondent is not a parent of the child, S.E., and permitting the requested amendment to the child's birth registration.
MCDERMOT J.
Date: March 17, 2026