Brittney Griner and Glory Johnson, is the Ex the father? – Family Law News Blog

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:

1. The person is married to the mother of the child at the time of the birth
   of the child.
2. 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.
3. The person marries the mother of the child after the birth of the child
   and acknowledges that he is the natural father.
4. 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.
5. 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.
6. 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.