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Just this week, a California Appellate Court ruled that Jason Patric, a sperm donor can fight for paternity rights.

This decision arises from a two year long legal dispute between Patric and his ex-girlfriend, Danielle Schreiber, over custody of their four-year-old son, Gus.

Gus was conceived using Patric's sperm through artificial insemination during the couple's decade long on-and-off relationship. Patric opted out of including his name on Gus' birth certificate when he was born in 2009. After the pair split permanently in 2012, Patric petitioned for shared custody. Schreiber denied Patric access to Gus alleging that he became so threateningly hostile that she feared for herself and the child. Furthermore, there are contradictory claims regarding Patric's status as a parent. Schreiber asserts that he was only a sperm donor; whereas Patric is adamant that he was willingly involved in Gus' life and parented the child like a normal father. In 2013, a judge ruled that Patric, as a sperm donor according to California law, was not the natural father.

While the appellate decision does not grant Patric paternity rights, it will allow him to fight for them. In this blog, we will look at Patric's legal options to pursue paternity recognition and custody of Gus if this case happened in Ontario.

Patric's situation raises some unsettled and interesting legal issues in the context of assisted reproduction as Ontario currently lacks definitive case law regarding sperm donors' legal rights. However, the driving factor in Ontario in determining custody and access rights is always the best interests of the child. Since Patric and Schreiber were not married, the custody dispute would be governed by the Children's Law Reform Act.

As Patric is not named as Gus' father on the birth certificate, he could apply to have his paternity legally recognized via CLRA s. 4(2). Since he is the biological father, and presuming that he did intentionally act as Gus' father while he and Schreiber were together, Patric might succeed in obtaining a declaration of paternity despite Schreiber's claims.

If Patric secures legal status as a parent, he is equally entitled to custody as a father under CLRA s. 20(1) and could apply for shared custody under s. 21(1). An Ontario court would then determine whether it is in Gus' best interest for Patric to be granted custody and/or access in accordance with sections 24(2), (3), and (4) of the CLRA.

Under s. 24(2), the court would consider all of Gus' needs and circumstances to determine the child's best interests. While Patric is Gus' biological father, there is no presumption in Ontario law that favours a biological parent in custody matters; blood is only one consideration. Regardless, biological fathers in Patric's situation may want to establish that the child would benefit from their father's continued parenting. In Patric's case, he may do so by demonstrating that his active involvement in Gus' care and upbringing during the first few years of the child's life forged a parental relationship and emotional bond between father and son. He could then assert that their bond is of such depth that refusing custody or access would be detrimental to the child – essentially denying Gus the presence of his loving father and potentially leaving him feeling abandoned. Here, the general presumption that children benefit from the presence and active engagement of both parents (absent evidence to the contrary) works in Patric's favour. Thus, in Patric's situation, an Ontario court might consider continuing the existing paternal relationship to be in Gus' best interests.

Ontario recognizes that violence and abuse are relevant considerations when determining the best interests of a child. If there is any substance behind Schreiber's allegations of Patric's threatening and hostile behaviour, she may attempt to refute Patric's claims by challenging his ability to parent via conduct under s. 24 (3). According to M. (T.J.) v M. (P. G.), Schreiber would have to demonstrate that Patric's hostile behaviour has negative consequences for Gus; it is insufficient to merely show his hostility exists. Patric's past conduct is only relevant in determining the child's best interests if it would constitute violence and abuse under s. 24(4) that negatively impacts his ability to parent. If Schreiber can bring evidence that Patric had at any time committed some form of violence or abuse towards her, Gus, or any other child, she might succeed on s. 24(3) grounds. However, given the vagueness of Schreiber's accusations regarding Patric's behaviour and the lack of available facts on this issue, it is uncertain whether a court would give any credence to her claim as it stands.