Back in August, we covered WNBA star Brittney Griner's unsuccessful attempt to have her 28 day marriage to fellow player, Glory Johnson, annulled based on Griner's belief that Johnson was still intimate with her ex-boyfriend during the two women's courtship.
The fallout from Griner's suspicion of Johnson's infidelity has taken another curious turn. Johnson is currently pregnant with twins and claims that the pregnancy was planned with Griner prior to their break up. TMZ reports that Griner admits that the couple had agreed to have a child with the assistance of a fertility clinic.
However, Griner suspects that Johnson's ex-boyfriend may be the twins' father and not whoever's sperm she was inseminated with at the clinic. It seems that while Griner may be willing to pay child support, she is definitely unwilling to do so if the sperm came from Johnson's ex-boyfriend.
As such, Griner wants Johnson to provide medical records to prove the children's paternity in order to determine her child support obligations.
What are Griner's options to address the issue of paternity be dealt with if this matter was occurring in Ontario?
The Children's Law Reform Act (CLRA) provides guidance with respect to issues of parentage in Ontario. Section 4 of the CLRA permits "any person having an interest" to apply to a court for a declaration recognizing a person as the father or mother of a child. Griner clearly has a sufficient interest under section 4 as a person who potentially has a child support obligation that is subject to the twins' paternity.
Additionally, section 8(1) of the CLRA sets out a presumption of paternity where a male person can be recognized in law as the father of a child in any of the following circumstances:
- The person is married to the mother of the child at the time of the birth of the child.
- The person was married to the mother of the child and the marriage was terminated by death, annulment, or divorce within 300 days before the birth of the child.
- The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
- The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
- The person has certified the child's birth, as the child's father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
- The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.
Based on the scant information available, it appears that Johnson's ex-boyfriend does not fit any of the criteria for there to be a presumption of paternity.
However, since the parentage of a child is in issue in this case, Griner has further options under the CLRA. Under section 10, as a party to the proceeding, Griner can apply for leave from the court to apply for permission to have blood tests done. Furthermore, if Johnson's ex-boyfriend refuses to submit to court ordered DNA testing, under section 10(4), the court may draw an adverse inference against him as it deems appropriate. Depending on the whole of the circumstances, the court has the discretion to find that such a refusal supports a determination that he is the children's father.
If Johnson's ex-boyfriend is found to be the father of her twins, then Griner is off the hook for child support as she would have no parental relationship to the children.
If Johnson's ex is not the father - as a result of DNA testing or a court declaration - then the issue becomes whether Griner is a parent to the unborn twins.
Johnson could possibly apply to the court for a declaration under section 4(1) that Griner is the mother of the child. However, this is completely uncharted legal territory in Ontario family law.
At this time Ontario legislation is deficient to handle circumstances such as Griner and Johnson. The presumptions of parentage in CLRA, as it currently stands, focus solely on paternity - whether this man is the father. There are no provisions or case law that address the parental status of the non-related wife of a lesbian couple that used a fertility clinic to conceive a child then later separate before the child is born.
Without parental status, there are no child support obligations or rights to custody or access.
If Griner is not biologically the mother and cannot be the biological father, what would her relation to the children be? What would happen if Johnson did not want to share parenting with Griner?
The circumstances may be different if the children were already born prior to Griner and Johnson's separation. In Rutherford et al v Deputy Registrar General for the Province of Ontario (2006), the Ontario Superior Court of Justice held that a lesbian co-parent is entitled to be registered as a parent on the birth certificate of a child conceived by in vitro-fertilization.