Deblois v. Lavigne – “Donor Agreement”

This case is about a biological father wanting access to his 19-month old child.

The child was conceived through artificial insemination. The parties without legal advice, entered into a written agreement, described as a “Donor Agreement,” where the father agreed to relinquish his paternity rights. The child has been in the care of his biological mother and his mother’s partner who have resided together in a long-term same-sex marriage.

The father, now wanting access to his son, brought a motion for interim access, however, the mother strongly resisted the request for access.

Analysis

The Court’s concern with regards to providing the father with access is in accordance with section 24(2) of the Children’s Law Reform Act, explaining that a motion of this nature must be in the best interests of the child.

For the purposes of the best interests of the child, the judge considered the biological relationship between the child and the parties.  The judge found that the child was presently being well cared for by his mother and his mother’s partner.  The judge also found that there was no evidence to suggest that the father would be unable to fulfill a parent role.

The judge stated that there were no significant parenting faults of either party. In fact, the father appearing to be anxious to establish a relationship with his child suggested the very opposite. The judge furthered that although the Courts accept that it is important for children to maintain relationships with their biological parents, this is merely one factor that needs to be considered.

The judge stated that the child is presently happy and being well cared for, and that the child has never been introduced to his father.  The judge held that the status quo should be maintained pending trial, which was 3 months from the date of the motion.

The judge reasons that if the mother is successful in denying access to the father at trial, then introducing the child to his biological father at this point may cause the child to become confused and insecure.  The judge held that the “risk of there being an adverse effect to the child is too great to ignore.” The judge also stated that if he were to make an access order at this stage, he may be indirectly influencing the outcome of the proceedings.

The judge dismissed the motion, and was satisfied that maintaining the status quo pending trial should be maintained, in the best interests of the child.

The problem with this ruling is that the judge did not take into consideration the adverse effect of denying the biological father access to the child may have on the child, and perhaps the judge was too quick in dismissing the motion. The trial date for this matter is scheduled for October 22, 2012.

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