August 15th, 2012 by Robert Franklin, Esq.
An Ontario father has been denied all contact with his son for the first 21 months of the boy’s life and a trial court has endorsed that denial until a hearing on paternity is held. Here’s the court’s opinion.
Back in October, 2008, Rene deBlois and Nicole Lavigne entered into an agreement under which he would donate sperm which she would use to impregnate herself. In the agreement, deBlois stated that he would never assert his parental rights.
Lavigne became pregnant and gave birth to the boy who has always been cared for by her and her partner. According to the court, the two are capable parents and the child is healthy and thriving.
But deBlois changed his mind and, three months after his birth, filed suit asserting his parental rights and seeking access to the child while the paternity case was pending. That was in January of 2011. Amazingly enough, it took from then until now – 17 months – for the judge to make a ruling on interim access. Part of that delay was due to Lavigne’s dilatory tactics and part was, in the judge’s wording, “systemic.”
So the child has been without his father for his entire life and the judge decided he should remain so until the hearing on the paternity matter in October, another four months. So, exactly why did the judge rule as he did? Well, I’ve read his order and I’m still not sure. I think the answer is “because.”
First, let’s be clear about one thing; the agreement between deBlois and Lavigne is of no legal effect. And while I’m at it let me say this: I see people making these agreements all the time. They think they’re avoiding responsibilities or obtaining rights by doing so. Once and for all, they’re not. Here’s a message: if you’re thinking about signing any agreement with any other person regarding parental rights or duties, don’t. It won’t do any good. If you think it’ll protect you in the future, be advised, it won’t. Here’s the truth: the law – not you – decides parental rights and obligations. Rene deBlois and Nicole Lavigne are in exactly the same legal position today as if they’d never signed the agreement they did. It had no effect whatsoever on their rights and duties. Don’t think it’s any different in your case.
Despite his agreement in 2008, deBlois has always seemed eager to be a parent to his son.
On the other hand, as indicated earlier, there is no evidence before me to suggest that the applicant is incapable of performing a parenting role…
To that end, there are no significant parenting faults alleged. In fact, the applicant appears to be anxious to pursue a relationship with his son, which certainly suggests a strong interest in parenting.
In other words, deBlois looks like a father who’s eager to and capable of being an active parent to his son, if someone would allow it. But the court, after an unconscionable delay of 17 months decided to endorse the mother’s refusal of access. Why?
To that end, the child, who will not be two years of age until October 1, 2012, has never been introduced to his father. It was argued that by introducing the applicant into the child’s life now, and should the respondent ultimately be successful on this application, the child may become confused and insecure. Despite the child’s young age, it is impossible to know what disclosure of the applicant’s status as his parent might mean. All circumstances considered, the risk of there being an adverse affect to the child is too great to ignore.
Reread that, and take in its full implications. First, notice that the reason the judge continues the child’s estrangement from his father is that a lawyer argued that access might make the boy “confused and insecure.” There was no evidence that same would occur, otherwise the judge would have cited it. So “Reason” One for the continuing estrangement is simply that the lawyer’s argument appealed to the judge.
And, as I’ve pointed out before, just imagine if a similar argument, with far more scientific evidence to support it, were to be made in a divorce and custody case. Let’s say Mom and Dad have a child who’s the same age as deBlois’s child is now. Mom files for divorce and Dad’s lawyer tells the judge “You can’t grant a divorce because if you do, ‘the child may become confused and insecure.’” As we all know, there’s nothing like a divorce to make a child insecure, but such an argument would be laughed out of court. Why? Because the law grants parents the right to divorce under essentially any circumstances. But when it comes to a father’s meeting his child for the first time, well, the argument is pure gold. When parents want to split up, their rights trump the child’s well-being; when a father wants to connect with his child, the court assumes that his rights are opposed to the child’s and that the child’s “best interests” must prevail. And that, my friends, is crazy.
Now, we all know that children do best with two biological parents in their lives. The science on that is too weighty to ignore. But in Canada, the biological relationship of a parent to a child is “just one factor to be considered” by a court adjudicating parental rights. The fact of a father’s biological connection to his child takes its place in line along with other factors, one of which is “the length of time the child has lived in a stable home environment.”
Obviously, the longer the child has lived in such an environment, the harder it is for a father who’s not part of that environment to get access or custody. And that provides an all-new perspective on just what Nicole Lavigne has been up to these past 17 months during which she’s fired her lawyer, hired a new one and gotten the court to adjourn the case. The longer she delays, the greater the probability that the court will deny the deBlois access. And when the judge notes that some of the delay has been “systemic,” you can bet Lavigne and her several lawyers knew that from the start. She benefits from delay and the court and the legal system are happy to oblige. And the perfect cherry on top is that it’s all “in the best interests of the child.” Who knew that long court delays during which a child is kept from its father promote its welfare. Only in family court is such nonsense taken seriously.
But it gets worse. The various factors for deciding custody or access by a parent are laid out nicely in the statute. You can click on the link helpfully provided in the judge’s opinion and read them for yourself. But if you don’t want to, don’t worry. I promise you that this is not among them:
In addition, it was also argued that by making an access order at this stage, I may indirectly influence the outcome of these proceedings.
The judge pronounced this argument “quite convincing.” In other words, if the judge orders the mother to give the father access now, it may influence the court in October to continue that access permanently. That apparently is a bad thing in the judge’s view. On the other hand, denying access now will also influence the judge at the paternity hearing to deny access permanently, but that’s what the judge did in his order. Paternal access, bad; father/child separation, good.
But apart from the blatantly anti-father nature of the judge’s decision, didn’t he notice that granting or denying access while awaiting trial is NOT one of the factors the law allows him to consider? The list is not long and I tell you, it’s not in there anywhere. His having done so, despite the plain wording of the statute, is clearly error on his part, as I suspect he knows. But of course, what’s deBlois going to do, appeal an order that’s set to expire when the trial ends in October? Of course not. This judge knows exactly what he’s doing, as do Lavigne and her lawyers. They’re using the glacial pace of judicial decision making to separate a father from his child. Having finally made a decision, the judge tosses aside all semblance of impartiality, even to the extent of violating the law, to do the same.