The case of M.R.R. v J.M., 2017 ONSC 2655 has given us a first glance at how the courts may be expected to interpret the changes to the Children's Law Reform Act (CLRA) resulting from the All Families Are Equal Act (AFAEA) coming into force last year.
In January of 2017 the AFAEA made sweeping changes to the CLRA, particularly with respect to the definitions, rights, and responsibilities of children and their parents. The legislative intent, which was at the crux of the analysis in M.R.R. v J.M., can be broadly interpreted as the Government of Ontario's ongoing effort to allow the law to evolve alongside Canadian understandings and practices of the family unit. In the long run these changes can be expected to have a profound effect on estate, family, and health law. But in the interim there are still some wrinkles to be ironed out as unaccounted for fact scenarios test fresh provisions of the legislation. M.R.R. v J.MF. is one such situation.
M.R.R. was a single women in her late 30's who wanted to have a child. Due to her age M.R.R. was concerned about her fertility and made appointments to inquire about her capacity to have a child in 2012. Between 2012 and 2013 M.R.R. tried to become pregnant via artificial insemination on approximately seven occasions. All were unsuccessful.
At a later date M.R.R. shared her frustration with her friend and ex-partner J.M., who first offered to assist her financially and later by donating his sperm. The parties did not draft and execute a formal contract affirming J.M.'s role as only a sperm donor and not a legal parent. Rather, they had an oral agreement and text message conversations to support that inference. M.R.R. and J.M. would have intercourse on a number of occasions, eventually resulting in M.R.R.'s successful pregnancy and the birth of J.R.R. in 2014.
However, the issue and reason for litigation arose when the parties' mutual understanding changed after J.R.R.'s birth. M.R.R. took the positions that J.M. met the definition of a parent under the CLRA and therefore commenced an application seeking child support in 2015. J.M. took the position that he did not meet the definition of parent under the CLRA. He was therefore seeking a declaration under s.13 of the CLRA that because he was not legal parent of J.R.R. he should not be responsible for child support.
A few modifications to the facts would have made this an easy case for Justice Fryer to decide. If J.M. had donated his sperm through a means other than intercourse then s.5 of the CLRA would result in a finding that J.M. is not the legal parent. Similarly as per s.7(4) of the CLRA if the parties had drafted a contract to establish that J.M. would not be the legal parent prior to the child being conceived then J.M. would not be found to be the legal father. But neither of these facts were present.
What complicated the decision for Justice Fryer was the oral agreement and text message conversations mentioned above, in addition to the fact that the parties had executed a written agreement after J.R.R.'s birth (although M.R.R. was now contesting its validity).
After careful examination of the party's pre- and post-conception intention, as well as the intent of the legislature in making the amendments to the CLRA, the court decided that J.M. was not the legal parent on a balance of probabilities as per s.13(3) of the CLRA. However, Justice Frye is quick to comment in the decision that the case of M.R.R. v J.M. should not set the precedent that parties are not required to form written agreements prior to conceiving a child. Rather, she highlights the importance of doing so, for both compliance with the CLRA, but more importantly for allowing the child's benefit in having a "secure and certain family unit."
Although the case of M.R.R. v J.M. addresses a fairly specific set of facts, it stands for the broader presumption that one of the Courts primary objectives is to examine the intention of the parties and ensure that their best interest are served. This is a familiar theme for estates practitioners, although this time appearing in the new realm of the CLRA post AFAEA. For those who practice in this area Justice Fryer's decision in M.R.R. v J.M. offers a great overview of the law both past and present.