Catholic Children’s Aid Society of Toronto v L.(D.), 2014 ONCJ 587

This case addresses the issue of who is considered a parent within the meaning of the Child and Family Services Act.

Background

On June 4, 2014, the Society issued a protection application seeking a finding that the child was ion need of protection. The Society sought a disposition that the child be made a society ward for six months, with access to the respondents to be in the society’s discretion. The lone issue at this Motion was whether the Court could make the finding that the biological Father was not a parent of the child as defined by the Act. The following facts were relevant with respect to the biological Father:

1. the biological Father last had contact with the mother when she was two months pregnant;
2. his last known address was a prison in Atlanta, Georgia;
3. he never had any contact with the child;
4. he has never paid child support for the child;
5. the mother does not know where he lives; and
6. the mother was married to him at the time the child was born, but they were legally separated.

Analysis

The Court commenced its analysis by considering the relevant legislation, namely the Child and Family Services Act. The Court first considered section 39(1) of the Act, namely that the following are parties to a child protection proceeding:

1. the applicant;
2. (the society having jurisdiction in the matter;
3. the child’s parent; and
4. where the child is an Indian or a native person, a representative chosen by the child’s band or native community.

The Court then considered the definition of “parent” as set out in section 37(1) of the Act, which provides:

“parent”, when used in reference to a child means each of,

(a) the child’s mother;
(b) an individual described in one of paragraphs 1 to 6 of subsection 8(1) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that he is not the child’s natural father,
(c) the individual having lawful custody of the child;
(d) an individual who, during the twelve months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of his or her family, or has acknowledged parentage of the child and provided for the child’s support;
(e) an individual who, under a written agreement or court order, is required to provide for the child, has custody of the child or has a right of access to the child; and
(f) an individual who has acknowledged parentage of the child in writing under section 12 of the Children’s Law Reform Act, but does not include a foster parent.

The Court then referenced Children’s Aid Society of Algoma v S.(T.), [2012] OJ No. 3295 (Ont. CJ), which held in paragraph 6,

While a child’s mother is always a parent, a child’s biological father is not necessarily so. And sometimes, a biological father is a parent, even though his only connection to the child is limited to sperm donor prior to conception.

The Court found that the biological father in this case was excluded as a parent under all clauses but section 37(1)(b) of the Act. As such, it was necessary for the Court to consider section 8(1) of the Children’s Law Reform Act in order to determine whether the biological Father was a parent in accordance with section 37(1)(b) of the Child and Family Services Act.

Further, according to section 8(1) of the CLRA, the biological father only needed to satisfy one criteria for the Court to find him to be a parent. Further in accordance with paragraph 1 of section 8(1) of the CLRA, the biological Father would be considered to be a parent if “The person is married to the mother of the child at the time of the birth of the child”.

As such, the Court held that the biological Father was a parent of the child as set out in section 37(1) of the Child and Family Services Act. Accordingly, the Court dismissed the Society’s motion.