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.